Back to:

Abstract: A "tripartite crisis" exists in the legal profession today, consisting of: deprofessionalism, low public opinion of lawyers and the legal system, and lawyer distress. Lawyers and nonlawyers alike express dissatisfaction with lawyers, the practice of law, and the outcomes of legal processes. Nonlegal dispute resolution mechanisms in society have failed and we have become dependent on legal processes (which are often adversarial and other-blaming) to resolve conflict. Lawyers are extraordinarily unhappy, suffering from depression, anxiety, substance abuse, and general psychological distress at rate that is almost twice that found in the general population. This talk will focus on an emerging movement in the law and its potential to ameliorate some of these problems.

In the last decade of the 20th century, perhaps in response to this widespread dissatisfaction with the legal system and lawyers, a new movement in law began to coalesce -- towards law's potential as a healing profession. This movement takes an explicitly comprehensive, integrated, humanistic, interdisciplinary, and often therapeutic approach to law and lawyering. This "comprehensive law movement" is evidenced by the rise of a number of new disciplines, or "vectors," that have rapidly gained visibility and popularity. The vectors include: therapeutic jurisprudence, restorative justice, collaborative law, transformative mediation, procedural justice, preventive law, creative problem solving, holistic justice, and problemsolving courts (e.g., drug treatment courts, mental health courts, and other specialized courts).

The vectors of the comprehensive law movement differ from traditional law and legal practice in that they explicitly seek to resolve legal matters in ways that are healing, ameliorative, or psychologically optimal for the people involved. They also explicitly consider extralegal concerns, meaning factors other than strict legal rights and duties (such as individuals' wellbeing, relationships, needs, resources, values, morals, and goals, or concepts of psychology, personal wellbeing, moral growth, and interpersonal connection and harmony).

The relationship of this developing movement to lawyer wellbeing and the other problems in the legal profession will be explored. The future of this movement, its potential to transform the law, and its relationship to existing legal processes, including dispute resolution processes, will also be explored.

Description of the Vectors:

Collaborative law - is a nonlitigative, collaborative process employed mainly in divorce law, where the spouses and their respective attorneys resolve the issues outside of court (a 4-party process). No litigation is usually instituted until settlement is reached and the attorneys are forbidden from representing their clients in court should the agreement process break down. Basically, it puts the divorcing spouses with their respective attorneys into a collaborative, 4-way series of discussions designed to reach settlement outside of litigation. Because the attorneys must withdraw if the process breaks down, the attorneys' financial interests are the same as the clients' -- to reach settlement. This contrasts with the usual process, in which the lawyers "win" whether the clients settle or not, since they simply litigate the case if negotiations break down. There is also a strong psychological component to the lawyer-client relationship in that emotions, needs, transference, etc. are openly acknowledged and dealt with in order to maximize results of the 4-way conferences. Although currently being used only in the domestic area, collaborative law could be appropriate for a number of other areas, such as employment law. It is associated with practicing attorneys Pauline Tesler (Bay Area, California) and Stewart Webb (Minnesota). See divorcenet.comand collaborativelaw.org; Pauline's email is pht@lawtsf.com.

Restorative justice - refers to a movement in which criminal justice and criminal sentencing are done by the community, victim, and offender in a collaborative process with all players present, focusing on the relationships between the offender, victim, and community. It is the antithesis of a top-down, hierarchical system where the judge (up) imposes a sentence on the defendant (down). From the website: "The Center for Restorative Justice & Peacemaking at the University of Minnesota School of Social Work on the University's St. Paul campus has been established to provide technical assistance, training, and research for those in the state of Minnesota, nationally, and internationally in support of restorative justice practice and principles. Through restorative justice, victims, communities, and offenders are placed in active roles to work together to... Empower victims in their search for closure; Impress upon offenders the real human impact of their behavior; Promote restitution to victims and communities. Dialogue and negotiation are central to restorative justice, and problem solving for the future is seen as more important than simply establishing blame for past behavior. Balance is sought between the legitimate needs of the victim, the community, and the offender that enhances community protection, competency development in the offender, and direct accountability of the offender to the victim and victimized community." It is associated with Mark Umbreit, who is a social work professor at the University of Minnesota. Website is: ssw.che.umn.edu/rjp/.

Procedural justice - refers to Tom Tyler's empirical findings that, in judicial process, litigants' satisfaction depends more on being treated with respect and dignity, being heard, having an opportunity to speak and participate, and how trustworthy the authorities appear/behave, than they do about the actual outcome (e.g, winning vs. losing) of the legal matter. It is associated with Tom Tyler.

Transformative mediation - as described in Bush and Folger's book, The Promise of Mediation. In this process, the procedure and the players are dynamic. The parties are moved towards continuing relationships with each other instead of seeing the process as static and simply a resolution of one dispute. Apparently the United States post office is training mediators in this process in order to apply it to mediate employment disputes. Robert Bush is a law professor at Hofstra Univ. School of Law in Hempstead, NY; Folger is a communication professor at Temple University.

Therapeutic jurisprudence - focuses on the therapeutic or countertherapeutic consequences of the law and legal procedures on the individuals involved, including the clients, their families, friends, lawyers, judges, and community. It attempts to reform law and legal processes in order to promote the psychological well-being of the people they affect. From its website: "Therapeutic Jurisprudence concentrates on the law's impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognized and systematically studied." It has been widely applied to both substantive law and legal processes with increasing visibility since 1990. It has also been applied to police work and become very popular with judges. Its founders are David B. Wexler, Professor of Law at University of Arizona and University of Puerto Rico & Bruce Winick, Professor of Law at University of Miami. Website is: www.therapeuticjurisprudence.org.

Preventive law - explicitly seeks to intervene in legal matters before disputes arise and advocates proactive intervention to head off litigation and other conflicts. Emphasizes the lawyer-client relationship, relationships in general, and planning. A long-standing, harm-averse movement. It is associated with Professor and Dean Emeritus Edward Dauer at University of Denver College of Law and the late Louis Brown.

TJ/PL - therapeutic jurisprudence and preventive law have been integrated into a single approach to law and lawyering in a series of articles, combining both approaches. See articles and book by Dennis Stolle and others integrating the two.

Holistic law - "acknowledge[s] the need for a humane legal process with the highest level of satisfaction for all participants; honor[s] and respect[s] the dignity and integrity of each individual; promote[s] peaceful advocacy and holistic legal principles; value[s] responsibility, connection and inclusion; encourage[s] compassion, reconciliation, forgiveness and healing; practice[s] deep listening, understand[s] and recognize[s] the importance of voice; contributes[s[ to peace building at all levels of society; recognize[s] the opportunity in conflict; draw[s] upon ancient intuitive wisdom of diverse cultures and traditions; and [encourages the lawyer to] enjoy the practice of law" (from its website). It is explicitly interdisciplinary, allows the lawyer to incorporate his or her own morals and values into client representation, seeks to "do the right thing" for the lawyer, clients, and others involved. Seeks to find solutions to legal matters in a broader, more holistic approach than is traditionally associated with lawyers, like holistic medicine. It is associated with the International Alliance of Holistic Lawyers and practicing lawyer William Van Zyverden in Vermont; his email is hjc1@aol.com and the website is: www.iahl.org.

Creative problemsolving - is associated with an the McGill Center at California Western School of Law - is explicitly humanistic, interdisciplinary, creative, and preventive in its approach to legal problems. Seeks to find solutions in a broader approach than is traditionally associated with legal work. From the website: " This is the first program in San Diego specifically dedicated to scholarly research and objective practical training in problem solving, dispute resolution and preventative law. As an institutional focal point for the school's overall mission of educating creative problem solvers, the Center explores the processes used by the law to address human and social problems, identify and describe competencies required to help individual, organizations and communities solve their problems effectively, and educates law students, lawyers and others in the skills and techniques of creative problem solving. For students, the Center is a teaching institution for learning the theory and practice of problem solving and conflict resolution. For the academic community, the Center is a vehicle for the production and dissemination of research on conflict theory, dispute resolution and problem solving. For the local and national community, the Center provides a forum for training and dialogue about the resolution of complex socio-legal problems and preventative law." The institute's executive director is Jamie Cooper; other professors there who are involved are Janeen Kerper, Linda Morton, Tom Barton, Janet Weinstein, Janet Bowermaster, and others at CWSL. Website: www.cwsl.edu/admissions/bulletin, then choose McGill Center for Creative Problem Solving.

Intersections:

All of these "vectors" have similarities and some intersect in many ways. Two of their points of universal intersection are:

(1) All are focused on optimizing human wellbeing. They seek to achieve the maximal psychologically beneficial outcome -- by explicitly being nonadversarial, nongladiatorial, noncontentious, collaborative, interdisciplinary, creative, respectful of others' feelings and needs, and nonbrutalizing and by seeking to maximize the emotional wellbeing of all parties involved.

(2) All explicitly focus on extra-legal concerns, meaning factors other than the strict legal rights and obligations of the parties, such as their emotions, relationships, feelings, needs, resources, goals, psychological health, etc. - this is what Pauline Tesler calls "rights plus."

Philosophical Organization of the Movement:

Some of the vectors are more practical, concrete, and tangible while others are more philosophical, theoretical, and broad. The more philosophical ones can be seen as "lenses" through which the other, more concrete vectors can be evaluated. For example, if dispute resolution is viewed as a collection of dispute resolution alternatives, including litigation, arbitration, mediation, negotiation, and other alternatives, then collaborative law and facilitative and transformational mediation are clearly part of this collection. Law practice can be viewed as a broader collection of "processes," including this collection of dispute resolution processes along with preventive law, TJ/PL, and simple one-client counseling. The remaining vectors can be seen as parallel "lenses" through which the attorney views, evaluates, and assesses each of these processes' likely consequences, outcomes, viability, and desirability in each legal matter handled by the attorney. For example, each of the legal processes can be viewed from a TJ (is this process therapeutic or not? how could it be made so?), holistic (how does this process take into account the healing of the client and lawyer?), procedural justice (how will this process affect the participants psychologically?), or CPS perspective (does this process allow for the broadest, most creative approach to solving the problem?). A related lens might be religious lawyering (is this process consistent with the lawyer's and client's religious beliefs?).

The unanswered question is whether all of the lenses in the comprehensive law movement are all really simply "therapeutic" in intent or are actually broader - meaning more comprehensive and humane than our conventional way of viewing law, which tends to focus on legal rights and duties and the economic "bottom-line" of the outcome.

Potential Related "Vectors":

Others have suggested that the following may also be related to the comprehensive law movement: religious lawyering (interjecting religious values into law practice); the movement to resurrect secular humanist values in law; the politics of meaning; the efforts of the Contemplative Mind & Society Institute, including the Yale meditation project sponsored by the Fetzer Institute; affective lawyering; rebellious lawyering; law and socioeconomics; and the humanizing legal education movement.

©Susan Daicoff, 2002.