{"id":577,"date":"2010-01-27T17:26:07","date_gmt":"2010-01-28T00:26:07","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hnlr\/?p=577"},"modified":"2015-04-27T13:38:07","modified_gmt":"2015-04-27T20:38:07","slug":"new-perspectives-in-negotiation-a-therapeutic-jurisprudence-approach","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/hnlr\/2010\/01\/new-perspectives-in-negotiation-a-therapeutic-jurisprudence-approach\/","title":{"rendered":"New Perspectives in Negotiation: A Therapeutic Jurisprudence Approach"},"content":{"rendered":"

\"scales_gavel2\"<\/a>By <\/em>Andrew F. Amendola*<\/p>\n

I. Introduction<\/p>\n

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.\u00a0 Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.\u00a0 This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.\u00a0 For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.\u00a0 For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney\u2019s increased receptivity to their client\u2019s interests, and greater client involvement, which acts as an empowering tool, enhancing the client\u2019s overall well-being.\u00a0 The result is a more gratifying interaction and overall improved satisfaction with outcomes.<\/p>\n

II. The Adversarial Style<\/p>\n

The methodology of negotiation has long been associated with aggressively adversarial tactics.\u00a0 This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.\u00a0 Most adversarial negotiators view the process as a zero-sum, win\/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]<\/span><\/span><\/p>\n

The adversarial negotiator\u2019s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2]<\/span><\/span> Some lawyers advocate this style, professing its effectiveness in increasing their clients\u2019 gains and avoiding exploitation.[3]<\/span><\/span> It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4]<\/span><\/span> the adversarial approach produces optimal results.[5]<\/span><\/span><\/p>\n

The adversarial approach is not the optimal method for all<\/em> situations, however.\u00a0 The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6]<\/span><\/span> It also tends to remove the client from the negotiation equation, which may result in the attorney\u2019s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7]<\/span><\/span> Furthermore, an attorney\u2019s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]<\/span><\/span><\/p>\n

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: \u201ceffective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.\u00a0 The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.\u201d[9]<\/span><\/span> Additionally, Kupfer found that \u201cover 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.\u201d[10]<\/span><\/span><\/p>\n

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being\u2014as well as the effectiveness\u2014of both the attorney and the client.\u00a0 The adversarial approach is often characterized as \u201cattacking.\u201d[11]<\/span><\/span> When an individual feels attacked, a neurological reaction takes place.\u00a0 In the brain, the hippocampus induces a heightened sense of alertness (described as the \u201cfight or flight\u201d reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12]<\/span><\/span> This reaction causes extreme stress and anxiety.[13]<\/span><\/span> The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which \u201cheightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.\u201d[14]<\/span><\/span> High levels of cortisol also produce distraction, mental errors, and \u201cimpairment in the ability to remember and process information.\u201d[15]<\/span><\/span><\/p>\n

A. The Source of the Adversarial Mentality<\/p>\n

The American legal system is undoubtedly based on the concept of adversarialism.[16]<\/span><\/span> Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17]<\/span><\/span> A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18]<\/span><\/span> The sense of competition inherent in the law school experience causes significant changes in students\u2019 attitudes, values, and motivations, reduces students\u2019 desire for cooperation, and diminishes overall personal well-being.[19]<\/span><\/span> The common teaching style instills in law students the binary, win\/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]<\/span><\/span><\/p>\n

B. Effects of an Adversarial Approach on The Client<\/p>\n

There are many aspects of the legal process which may produce a strongly negative reaction in the client.\u00a0 These aspects are called psychological soft spots<\/em>.[21]<\/span><\/span> For example, sometimes the legal issue confronted by the client\u2014which brought her to seek an attorney\u2019s services in the first place\u2014or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22]<\/span><\/span> These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23]<\/span><\/span> inhibiting the attorney\/client relationship, preventing the attorney from learning the full extent of the client\u2019s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]<\/span><\/span><\/p>\n

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys\u2019 counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25]<\/span><\/span> The adversarial perspective fails to address these feelings because it operates in a binary, win\/lose fashion.[26]<\/span><\/span> This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]<\/span><\/span><\/p>\n

C. Effects of an Adversarial Approach on The Attorney<\/p>\n

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.\u00a0 This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28]<\/span><\/span> Professor Susan Daicoff notes that attorneys\u2019 sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]<\/span><\/span><\/p>\n

These feelings of professional dissatisfaction unsurprisingly also affect attorneys\u2019 quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]<\/span><\/span><\/p>\n

The adversarial mindset can cause attorneys to misread their clients\u2019 needs; \u201c[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.\u201d[31]<\/span><\/span> The adversarial approach encourages attorneys to \u201ctransform complex, human situations into a dry set of facts that fit into legal rules.\u201d[32]<\/span><\/span> Locked into a win\/lose mentality, the adversarial attorney is incapable of assessing the client\u2019s true needs, maximizing value, or addressing underlying sources of dispute.[33]<\/span><\/span><\/p>\n

III. Developments in Negotiation<\/p>\n

Negotiation need not be a deleterious process.\u00a0 In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34]<\/span><\/span> Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.\u00a0 Among these approaches are the cooperative style<\/em>, integrative bargaining<\/em>, and collaborative lawyering<\/em>.\u00a0 These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.<\/p>\n

A. Cooperative Style<\/p>\n

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35]<\/span><\/span> The cooperative negotiator \u201ccommunicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.\u201d[36]<\/span><\/span> A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side\u2019s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]<\/span><\/span><\/p>\n

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.\u00a0 If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.\u00a0 The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38]<\/span><\/span> When presented with a cooperative opponent, an adversarial negotiator will often \u201cincrease their demands and expectations about what they will be able to obtain.\u201d[39]<\/span><\/span><\/p>\n

B. Integrative Bargaining<\/p>\n

The integrative negotiator focuses more on \u201cinterests\u201d than \u201cpositions,\u201d using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on \u201copportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,\u201d[40]<\/span><\/span> essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.<\/p>\n

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.\u00a0 In such situations, \u201crigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.\u201d[41]<\/span><\/span><\/p>\n

C. Collaborative Lawyering<\/p>\n

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42]<\/span><\/span> Its objective is \u201cto change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.\u201d[43]<\/span><\/span><\/p>\n

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.\u00a0 First, clients actively participate in the process and retain ultimate decision-making authority.\u00a0 Second, both parties openly share all information relevant to the dispute.\u00a0 Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.\u00a0 Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.\u00a0 Also, the threat of litigation may not be used to coerce settlement.\u00a0 Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.\u00a0 Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44]<\/span><\/span> Similarly, the participating attorneys, though remaining advocates for their clients, are committed to \u201ckeep[ing] the process honest, respectful, and productive on both sides.\u201d[45]<\/span><\/span><\/p>\n

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46]<\/span><\/span> Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]<\/span><\/span><\/p>\n

Collaborative Lawyering is not without its disadvantages, however.\u00a0 There are concerns that the process may violate the ethical requirement to zealously represent a client\u2019s interests.\u00a0 Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.\u00a0 Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.<\/p>\n

IV. Therapeutic Jurisprudence<\/p>\n

Therapeutic Jurisprudence is the \u201cstudy of the role of the law as a therapeutic agent,\u201d focusing on \u201cthe law\u2019s impact on emotional life and psychological well-being.\u201d[48]<\/span><\/span> The movement represents the idea that the law\u2014including the rules of law, legal procedures, and the roles of legal actors\u2014serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.\u00a0 It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49]<\/span><\/span> Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia<\/em>,[50]<\/span><\/span> Therapeutic Jurisprudence encourages lawyers to \u201cattempt to create the most beneficial and emotionally satisfactory solution given a particular client\u2019s interests and circumstances,\u201d thus providing a therapeutic outcome.[51]<\/span><\/span> Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52]<\/span><\/span> tort law, criminal law, and contract law.[53]<\/span><\/span><\/p>\n

V. A Therapeutic Jurisprudence Application to Negotiation<\/p>\n

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.\u00a0 A Therapeutic Jurisprudence approach which takes into consideration clients\u2019 interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: \u201c[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.\u201d[54]<\/span><\/span><\/p>\n

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55]<\/span><\/span> Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56]<\/span><\/span> Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.\u00a0 This effort can have a significant impact on the client\u2019s satisfaction with the resolution and the legal counsel received.[57]<\/span><\/span><\/p>\n

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.\u00a0 There are still many uncertainties and problems surrounding its application. \u00a0For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58]<\/span><\/span> and its effects too difficult to measure accurately.\u00a0 Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client\u2019s constitutional concerns, the attorney\u2019s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]<\/span><\/span><\/p>\n

VI. Conclusion: A Measured Approach<\/p>\n

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.\u00a0 It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.\u00a0 To have the greatest impact and stamina, this change must be initiated early.\u00a0 Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.\u00a0 Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.<\/p>\n

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.\u00a0 While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.\u00a0 Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.\u00a0 Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.\u00a0 Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]<\/span><\/span><\/p>\n

\n
\n
\n

*Andrew F. Amendola is an attorney and author residing in Connecticut.<\/em> He received his Juris Doctor degree\u00a0in 2009 from the University of Connecticut School of Law.<\/em><\/p>\n

[1]<\/span><\/span> See<\/em> Julie Macfarlane, Dispute Resolution Readings and Case Studies 175 (2d ed. 2003) (explaining the way many adversarial negotiators view their role in the process).<\/p>\n<\/div>\n

\n

[2]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[3]<\/span><\/span> See <\/em>Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style<\/em>, 7 Harv. Negot. L. Rev. 143, 146\u201347 (2002) [hereinafter \u201cShattering Negotiation Myths<\/em>\u201d].<\/p>\n<\/div>\n

\n

[4]<\/span><\/span> The Negotiation Academy, Collaborative Negotiation Strategy<\/em>, available at<\/em> http:\/\/www.negotiationtraining.com.au\/articles\/negotiating-collaboratively\/.<\/p>\n<\/div>\n

\n

[5]<\/span><\/span> A seminal study on the effectiveness of negotiation approaches used by lawyers confirmed that an attorney can be very effective or very ineffective within the constraints of either the adversarial or cooperative methods.\u00a0 Gerald R. Williams, Legal Negotiation and Settlement 18\u201319 (1983). However, there are more effective cooperative than effective adversarial negotiators.\u00a0 Id<\/em>. at 49.<\/p>\n<\/div>\n

\n

[6]<\/span><\/span> Macfarlane, supra<\/em> note 1, at 175.<\/p>\n<\/div>\n

\n

[7]<\/span><\/span> Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes<\/em>, 5 Harv. Negot. L. Rev. 113, 128\u201329 (2000) [hereinafter \u201cBuilding a Pedagogy of Problem-Solving<\/em>\u201d].<\/p>\n<\/div>\n

\n

[8]<\/span><\/span> See, e.g.<\/em>, John G. Koetltl, U.S. District Judge for the Southern District of New York, From the Bench<\/em>, 23 Litigation 3 (1997); Stuart Taylor Jr., Sleazy in Seattle<\/em>, Am. Law., Apr. 1994.<\/p>\n<\/div>\n

\n

[9]<\/span><\/span> Shattering Negotiation Myths<\/em>, supra <\/em>note 3, at 147\u201348.<\/p>\n<\/div>\n

\n

[10]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[11]<\/span><\/span> See<\/em> Macfarlane, supra<\/em> note 1, at 171, 172.<\/p>\n<\/div>\n

\n

[12]<\/span><\/span> Bruce Winick, Therapeutic Jurisprudence and the Role of Counsel in Litigation<\/em>, 37 Cal. W. L. Rev. 105, 110 (2000).<\/p>\n<\/div>\n

\n

[13]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[14]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[15]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[16]<\/span><\/span> See, e.g.<\/em>, Urska Velikonja, Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice<\/em>, 72 Alb. L. Rev. 257, 260 (2009) (\u201c[t]he United States, on the other hand, has relied on an adversarial system of judicial dispute resolution, where each side presents its case and a jury decides the winner.\u201d).<\/p>\n<\/div>\n

\n

[17]<\/span><\/span> Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism<\/em>, 46 Am. U. L. Rev. 1337, 1353\u201355, 1403 (1997).<\/p>\n<\/div>\n

\n

[18]<\/span><\/span> See, e.g.<\/em>, Connie J. A. Beck, Bruce D. Sales, & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers<\/em>, 10 J.L. & Health 1 (1996).\u00a0 The authors explain that certain psychological distress symptoms \u201care not exhibited when the lawyers enter law school, but emerge shortly thereafter and remain, without significant abatement, well after graduation from law school.\u201d\u00a0 Id<\/em>. at 2. \u00a0The authors also note that in a 1986 study\u00a0prelaw students did not show significant elevations of psychological distress when tested in the summer prior to law school entry.\u00a0 Yet, within two months of beginning law school the students\u2019 psychological distress was found to be significantly elevated.\u00a0 Depending on the group (first, second, or third year), the authors found that 17\u201340% of the law students fell above the cutoff on symptoms relating to depression.\u00a0 Of these same students, 20\u201340% also fell above this cutoff on symptoms relating to obsessive-compulsiveness, interpersonal sensitivity, anxiety, hostility, and paranoid ideation in addition to social alienation and isolation.\u00a0 A similar pattern was found in law school alumni two years post-graduation.\u00a0 On a global measure of distress (GSI), the authors found that 17.9% of these lawyers fell above the cutoff for the non-patient normal population mean. In comparing the students at their third year of law school and then two years post-graduation, the study found that symptoms present during the third year had not diminished significantly during the lawyers’ first two years of practice. Id<\/em>. at 4; Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence<\/em>, 52 J. Legal Educ. 112, 113 (2001\u201302).\u00a0 Additionally, Dr. Andrew Benjamin found that students<\/p>\n

[b]ecome much less healthy soon after entering law school.\u00a0 For example, our research data (and subsequent replications by others) have revealed that before entering law school, only four percent of students suffered from depression, a figure expected from any normal population. \u00a0During the first year of law school, about 20% of the students developed depression. \u00a0By the third year of law school, 40% of the law students had developed statistically significant levels of depressive symptoms.<\/p>\n

Andrew Benjamin, The Role of Law School in Producing Psychological Distress Revisited<\/em>, available at<\/em> http:\/\/www.law.fsu.edu\/academic_programs\/humanizing_lawschool\/images\/benjamin.pdf.<\/p>\n<\/div>\n

\n

[19]<\/span><\/span> See generally <\/em>Krieger, supra<\/em> note 18; Lawrence S Krieger, What We\u2019re Not Telling Law Students and Lawyers That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession From the Roots<\/em>, 13 J.L. & Health 1 (1998\u201399); Lawrence S. Krieger, Psychological Insights: Why Our Students and Graduates Suffer, and What We Might Do About It<\/em>, 1 J. Ass\u2019n. of Legal Writing Directors 259 (2002); Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being<\/em>, 22 Behav. Sci. & L. 261 (2004) (presenting and discussing empirical evidence of the psychological effect law school has on students).<\/p>\n<\/div>\n

\n

[20]<\/span><\/span> Krieger, supra<\/em> note 18, at 117.<\/p>\n<\/div>\n

\n

[21]<\/span><\/span> Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic<\/em>, 13 Clinical L. Rev. 605, 610\u201311 (2006).<\/p>\n<\/div>\n

\n

[22]<\/span><\/span> Id<\/em>. at 610.<\/p>\n<\/div>\n

\n

[23]<\/span><\/span> Id<\/em>. at 610\u201311.<\/p>\n<\/div>\n

\n

[24]<\/span><\/span> Id<\/em>. at 610.<\/p>\n<\/div>\n

\n

[25]<\/span><\/span> See <\/em>Leonard L. Riskin, Mindfulness in the Law and ADR: The Contemplative Lawyer: On the Potential Contributions of Mindfulness Mediation to Law Students<\/em>, 7 Harv. Negot. L. Rev. 1, 13 (2002).<\/p>\n<\/div>\n

\n

[26]<\/span><\/span> See <\/em>Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation<\/em>, 10 Harv. Negot. L. Rev. 103, 118\u201319 (2005).<\/p>\n<\/div>\n

\n

[27]<\/span><\/span> See Building a Pedagogy of Problem-Solving<\/em>, supra<\/em> note 7, at 128\u201329.<\/p>\n<\/div>\n

\n

[28]<\/span><\/span> See <\/em>Riskin, supra<\/em> note 25, at 8.\u00a0 Approximately 20% of attorneys are extremely dissatisfied with their jobs.\u00a0 Moreover, 19% of attorneys suffered from depression (as opposed to 3\u20139% in the general population), and 15\u201318% suffered from substance abuse (as opposed to 10\u201313% in the general population).\u00a0 Daicoff, supra<\/em> note 17, at 1347.\u00a0 Lawyers also have higher rates of anxiety, divorce, and substance abuse than both the general population and members of other professions.\u00a0 Id<\/em>.<\/p>\n<\/div>\n

\n

[29]<\/span><\/span> Id<\/em>. at 1334\u201345.\u00a0 Daicoff found that<\/p>\n

[t]he vast majority of commentators generally agree that the level of \u201cprofessionalism\u201d displayed by attorneys has declined dramatically in the last twenty-five years. They point to the following as evidence: (1) a decline in civility and courteous conduct between lawyers, an increase in unethical or uncivil behavior among lawyers and judges, frequent lapses of appropriate ethical and professional conduct, and increasingly aggressive, competitive, and money-oriented legal battles, fought with a \u201cwin at all costs\u201d approach; (2) increased competition and pressure to win\u2014and the underlying theory that law has become a \u201cbusiness\u201d rather than a profession, placing a heightened emphasis on materialism and money; (3) a decline in attorney and client\u00a0loyalty to the law firm; (4) frequent and abrupt dissolutions and reconstitutions of large law firms; (5) an increase in aggressive lawyer advertising; and (6) a perceived general decline in lawyers\u2019 values, ideals, and morals.<\/p>\n

Id<\/em>.<\/p>\n<\/div>\n

\n

[30]<\/span><\/span> See <\/em>Riskin, supra<\/em> note 25, at 13.<\/p>\n<\/div>\n

\n

[31]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[32]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[33]<\/span><\/span> Id<\/em>. at 16\u201317.<\/p>\n<\/div>\n

\n

[34]<\/span><\/span> See <\/em>Winick, supra<\/em> note 12, at 112\u201313.<\/p>\n<\/div>\n

\n

[35]<\/span><\/span> Colleen M. Hanycz, Trevor C. W. Farrow & Frederick H. Zemans, The Theory and Practice of Representative Negotiation 254 (2007).<\/p>\n<\/div>\n

\n

[36]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[37]<\/span><\/span> Id<\/em>. at 255.<\/p>\n<\/div>\n

\n

[38]<\/span><\/span> Julian Webb et al., Lawyers\u2019 Skills 2007\u20132008 154 (2007).<\/p>\n<\/div>\n

\n

[39]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[40]<\/span><\/span> Hanycz et al., supra<\/em> note 35, at 45.<\/p>\n<\/div>\n

\n

[41]<\/span><\/span> Id<\/em>. at 46.<\/p>\n<\/div>\n

\n

[42]<\/span><\/span> Julie Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project<\/em>, 2004 J. Disp. Resol. 179, 180 (2004).<\/p>\n<\/div>\n

\n

[43]<\/span><\/span> Id<\/em>. at 186.<\/p>\n<\/div>\n

\n

[44]<\/span><\/span> Douglas C. Reynolds & Doris F. Tennant, Collaborative Law\u2014An Emerging Practice<\/em>, 45 B.B.J. 12, 12 (2001).<\/p>\n<\/div>\n

\n

[45]<\/span><\/span> Pauline H. Tesler, Collaborative Law 7 (2001).<\/p>\n<\/div>\n

\n

[46]<\/span><\/span> Macfarlane, supra <\/em>note 42, at 186.<\/p>\n<\/div>\n

\n

[47]<\/span><\/span> Id<\/em>. at 190\u201392.<\/p>\n<\/div>\n

\n

[48]<\/span><\/span> David Wexler, Therapeutic Jurisprudence: An Overview<\/em>, 17 T.M. Cooley L. Rev. 125 (2000).<\/p>\n<\/div>\n

\n

[49]<\/span><\/span> Id<\/em>.at 125.\u00a0 Bruce Winick summarized the impetus behind the Therapeutic Jurisprudence movement stating that<\/p>\n

[o]nce it is understood that rules of substantive law, legal procedures, and the roles of various actors in the legal system such as judges and lawyers have either positive or negative effects on the health and mental health of the people they affect, the need to assess these therapeutic consequences . . . thus emerges as an important objective in any sensible law reform effort.<\/p>\n

Bruce J. Winick, Therapeutic Jurisprudence Applied: Essays on Mental Health Law 4 (1997).<\/p>\n<\/div>\n

\n

[50]<\/span><\/span> Wexler, supra<\/em> note 48, at 129.<\/p>\n<\/div>\n

\n

[51]<\/span><\/span> Building a Pedagogy of Problem-Solving<\/em>, supra<\/em> note 7, at 120.<\/p>\n<\/div>\n

\n

[52]<\/span><\/span> Id<\/em>.<\/p>\n<\/div>\n

\n

[53]<\/span><\/span> Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder<\/em>, 1 Psychol. Pub. Pol\u2019y & L. 193 (1995).<\/p>\n<\/div>\n

\n

[54]<\/span><\/span> Shattering Negotiation Myths<\/em>, supra<\/em> note 3, at 197.<\/p>\n<\/div>\n

\n

[55]<\/span><\/span> Winick, supra<\/em> note 12, at 117\u201318.<\/p>\n<\/div>\n

\n

[56]<\/span><\/span> Id.<\/em><\/p>\n<\/div>\n

\n

[57]<\/span><\/span> Id.<\/em> at 118.<\/p>\n<\/div>\n

\n

[58]<\/span><\/span> See generally <\/em>Slobogin, supra<\/em> note 53.\u00a0 Slobogin contends that<\/p>\n

to measure the therapeutic effect of a given rule . . . therapeutic jurisprudence relies on social science theory and research\u2014in particular, mental health and behavioral work . . . . [These disciplines] may frequently be unable to provide [Therapeutic Jurisprudence] with much useful information for two reasons, one which is general in nature and one which is more specific to [Therapeutic Jurisprudence]. \u00a0First, social science has often proved inadequate to the task of investigating legal assumptions. \u00a0Second, even if this general concern can be overcome, the types of empirical questions [Therapeutic Jurisprudence] asks may be particularly difficult to answer. \u00a0Consequently, [Therapeutic Jurisprudence] may be confronted with another dilemma: To the extent it grows dependent on social science data it may rest on shaky foundations, but to the extent it does not it loses its allure.<\/p>\n

Id<\/em>. at 204.\u00a0 There are also additional concerns that reliance on social science data and standards of evaluations may be misapplied: those attempting to apply the research may not be abreast of newly emerging, relevant literature; users of social science may misinterpret the findings or apply them in the wrong context; lawyers and judges may unduly emphasize social science findings to justify their arguments or conclusions; and social science findings may become a superficial, pseudo-authoritative justification used to mask political or value-laden decisions.\u00a0 Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective<\/em>, 72 Ind. L.J. 775, 796 (1997).<\/p>\n<\/div>\n

\n

[59]<\/span><\/span> Slobogin, supra<\/em> note 53, at 211\u201318.<\/p>\n<\/div>\n

\n

[60]<\/span><\/span> See <\/em>Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider Views of the Legal Profession<\/em>, 21 Harv. J.L. & Pub. Pol\u2019y 835, 850 (1998).\u00a0 In noting the degradation of public opinion toward lawyers, the authors stated that<\/p>\n

[p]olls conducted by Louis Harris and Associates, for example, reveal a decline in public perception of the prestige of the legal profession.\u00a0 For decades, pollsters at the Harris organization have asked random samples of adult Americans to rate the prestige of a variety of occupations. \u00a0Each profession is slotted as having \u201cvery great prestige,\u201d \u201cconsiderable prestige,\u201d \u201csome prestige,\u201d or \u201chardly any prestige at all.\u201d\u00a0 In 1977, almost 75 percent of respondents believed the legal profession had either very great or considerable prestige . . . .\u00a0 Twenty years later, public opinion has changed dramatically.\u00a0 A near majority (47 percent) of respondents to the same question in an April 1997 survey ranked the legal profession as having either some or hardly any prestige at all.<\/p>\n

Id<\/em>.<\/p>\n

\n<\/div>\n<\/div>\n

\n
\n<\/div>\n
Originally published to HNLR Online on Jan. 27, 2010.<\/em><\/div>\n","protected":false},"excerpt":{"rendered":"

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,38],"tags":[39],"class_list":["post-577","post","type-post","status-publish","format-standard","hentry","category-online-only","category-hnlr-online-article","tag-hnlr-online-articles"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSkE-9j","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/577","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/comments?post=577"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/577\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/media?parent=577"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/categories?post=577"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/tags?post=577"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}