ADR Fall 2003
Lawyer’s Standard Philosophical Map
What is it? – Triangle
Win-Lose Adversarial System
Neutral arbiter
General rules applied to reach a decision.
About quantities, not qualities (usually measured in $$)
Adequate Description of the way most lawyers see the world?
Zero-sum and quantification always applies
The neutral arbiter only comes in if you screw up the first part.
May differ in particular areas of law
Family law
Juvenile justice
May also differ by the age of the attorney (and experience with ADR training).
How does it affect practice
Makes people lots of money
Makes matters about “battle planning” rather than problem solving
Blinds attorneys to alternative methods of dispute resolution
Comments of Professor Derek Bok (pg. 58 n. 3)
Legalism – solve problems by system of neutral rules
Adversary Assumption – Law school and grading-curve competition
Control
Contrast Adversary Approach with Problem-Solving Approach
Adversary
Problem-Solving
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Attorneys are trained to narrow (or broaden) disputes and categorize in a legal context.Tends to be attorney-drivenEmphasizes finalityAccess available only to those who can afford it.Quantitative remediesResolution imposed from outsideRigid FormWinning = Other Side Loses
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Recognizes that each situation as uniqueTends to be client-drivenEmphasizes relationshipsMay open access to a broader cross-section of the community.Also includes Qualitative remediesParties develop mutually-acceptable resolutionNon-linearCreative solution for mutual benefit
How disputes arise
Naming an injury
Blaming someone (refusal to accept that “shit happens” or to accept responsibility yourself).
Claiming (accusing the responsible party)
Rejection – this is where you actually get a dispute
Responses to rejection
Just deal
Negotiate
Other resolution
Impact of attorney’s involvement in the dispute
Naming/Categorization
May narrow the injury by naming the dispute in legal terms
May broaden the injury by asking questions that elicit broader legal claims
Blaming
Broaden – maybe this is more than a neighborhood dispute, and involves the entire city government
Narrow – maybe the client just needs to put up a fence
Claiming
Attorney training
Attorneys categorize within a legal framework
Attorney broadens or narrows
Economic incentive
Sense of “justice” – choosing from the “menu” of legal options.
The Attorney/Client Relationship – Control Issues
Traditional Model
Participatory Model
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Client basically turns the matter over to the attorneyAttorney only give the client conclusions, not reasoningAttorney knows bestPaternalistic
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Client remains involved throughout the disputeAttorney shares reasoning process and translates legalize for clientClient has more information and more involved in decisionsCooperative
This is a false dichotomy. You are likely to move back and forth between the two.
Control may be passed back and forth, depending on what is going on.
Back to the First Class – Philosophy of ADR
Owen Fiss – “Against Settlement” (p. 18)
Basic thesis – Dispute resolution is a public matter, in which public policy is set and expressed.
Fiss is especially concerned about civil rights cases. These cases are about fundamental public policy and we need courts to set public standards.
Precedent is important
The decision itself will affect a larger group of people than the individual litigants
There is often a need for continuing court supervision
Generally speaking, Fiss is concerned about cases in which there is an imbalance of power.
Economic imbalance
Poorer party may not be able to get their own fact-finding sufficiently done
Poorer party might “sell-out”, because they need the money quickly
Poorer party will be less able to assess their likelihood of success.
But it looks like Fiss is really only concerned about a particular class of cases – complex civil rights cases where attorney’s fees are available to successful litigants.
McThenia & Shaffer’s Response – “For Reconciliation” (p. 25)
Crucial difference between M & S and Fiss is their view of “justice”.
Fiss sees justice as being handed down by courts
M & S see justice as being the creation of the parties themselves, from the sense of reconciliation.
Justice is not what gets handed down from the government but rather “is something people give to one another.”
Fiss’ Counter – “Out of Eden” (p. 27)
Fiss says the M & S are most closely associated with the “religious” strand of the ADR movement.
M & S’ ideas may work in a relatively closed religious group with clearly shared values, but they don’t work in a pluralistic society.
M & S are deregulation zealots who want private solutions based on shared communal values to replace the public expression of pluralistic values expressed through the courts.
Lieberman & Henry – “Lessons from the ADR Movement” (p. 28)
Argues that Fiss’ entire argument is based on a dubious straw man.
His argument holds up ONLY in the limited situation upon wh
his is not particularly responsive.
Active – Reflective, plus your sense of the emotion behind the statement. FEELINGS ARE FACTS, especially from the client’s perspective.
Hindrances to good communication
Ego threat – the client is hesitant to share information that the client is concerned will cause the attorney to judge them harshly.
Deal with this by making empathic responses
Non-judgmental responses give the client a basis for trusting the attorney with information without ego threat.
Case threat – client doesn’t want to share information that the client thinks will hurt their case.
Explain to the client how “surprises” can hurt the case much more than any disclosure. The more that the attorney knows, the more helpful the attorney can be.
Unique problems are presented in the criminal defense context.
Remind the client about attorney-client confidentiality.
Ask the client, “What’s the worst thing that the other side can say about you?” NOT what can the other side PROVE, but what would the other guys say. This may get you to the sorts of information the client is withholding.
Role Expectation
Dominant-Subordinate presumptions. Client will sometimes take the subordinate position to the attorney because the attorney is the expert. Other clients (especially corporate clients) may see the attorney as a “servant” to the dominant client.
This affects communication. The conversation will be framed by the way in which both the attorney and the client see themselves in terms of their role expectations.
The Etiquette Barrier
Person has information that they’re willing to disclose to some people, but not to others.
Sometimes has to do with the way in which people speak in different contexts. Conversation on the basketball courts is different than conversation in the attorney’s office or in a hearing.
Particularly problematic in a cross-cultural context.
Trauma
The recounting of the story brings back painful emotions.
In order to avoid the painful emotions, the client doesn’t want to talk about it.
Perceived Irrelevance
Client makes assumptions about relevance
Points to the importance of following up lines of questioning.
Greater Need
Client and Attorney have difference primary needs for the communication.
Typical example – criminal defendant meeting attorney in jail. Attorney wants information about the underlying charge, defendant wants to talk about when s/he is getting out of jail.
