Hyman, Jonathan

Rutgers School of Law- Newark Legal Studies Research Paper Series Research Paper No.
030 ~and~ NYLS Clinical Research Institute Paper No. 08/09 #15
Four Ways of Looking at a Lawsuit: How Lawyers Can Use the Cognitive Frameworks of Mediatio
By
Jonathan M. Hyman Rutgers School of Law- Newark
FOUR WAYS OF LOOKING AT A LAWSUIT: HOW LAWYERS CAN USE THE COGNITIVE FRAMEWORKS OF MEDIATION Jonathan M. Hyman* Rutgers Law School - Newark
Abstract When lawyers represent clients in the process of mediation, tensions may arise between the goals and actions of the mediators and those of the lawyers. Mediators may be seeking to find ways to create new value for the parties, beyond a simple compromise of their legalistic claims and defenses. Or they may be seeking to repair or improve the parties relationship. Or they may wish to lead the parties to greater mutual understanding. But lawyers often seem to be limited to an adversarial, legalistic approach, looking only for some minimal or reasonable compromise and standing in the way of the mediators other goals. These tensions run deeper than a difference in goals or tactics or techniques. They arise from different cognitive frameworks about conflict and ways to deal with it. The cognitive frameworks, often operating tacitly and without an actors conscious awareness, create different and competing perceptions of what is relevant and what is appropriate to do. The mediation literature has articulated four different, if overlapping, cognitive frameworks for dealing with conflict in a mediation setting: distributive compromises, creating more value for all, changing relationships, and increasing the mutual understanding of the parties in conflict. Four examples of conflicts between mediators and lawyers, drawn from stories of actual mediations, demonstrate these conflicting frameworks. Understanding the cognitive frameworks reveals ways in which lawyers can operate congruently with mediators, rather than in opposition to them. The cognitive frameworks are versions of ways that people lawyers included ordinarily have available to deal with conflict. There is nothing inherent in legal thinking that prevents lawyers from shifting into non-adversarial frameworks in a mediation, although the shift can be challenging. Similarly, a lawyers ethical obligation to act in a clients interest does not stand in the way of a lawyer inhabiting one of the alternative frameworks. Indeed, because the alternative frameworks can actually serve a clients interests in ways not easily
Acknowledgments: Thanks to the participants of the Rutgers faculty colloquium and the Marquette W orks in Progress conference for their insights and suggestions, particularly Howard Gadlin and Melissa Manwaring. Particular thanks are due to Douglas Frenkel and James Stark, whose first rate writing on mediation got me thinking about whether lawyers work in mediation is merely intentional technique, or might be indicative of deeper conceptual frameworks. Special thanks also to the late Allen Axelrod, a noble presence for many years at Rutgers Law School, who in his usual succinct, respectful and crystaline way got me to restructure the entire article. All misguided and other erroneous thoughts and expressions remain my own.
Electronic copy available at: http://ssrn.com/abstract=1347057
FOUR WAYS OF LOOKING AT A LAWSUIT
achievable within an adversarial, distributive approach, lawyers have a moderate ethical obligation to seek to use alternative frameworks within a proper mediation setting. But it is not easy to shift from one framework to another simply by intending to do so. I suggest that paying attention to certain categories of things discussed in mediation is a practical way to identify and influence the operative framework. Certain subject matters, such as what happened in the past, what will happen in the future, legal meaning versus moral meaning, feelings, relationship, and how the parties intend to move into the future, tend to be distinctive for different frameworks, both partially constituting a framework and leading others into it. Beyond the questions of whether lawyers can mentally inhabit the alternate frameworks, whether they ethically may use them, and whether they ethically should use them, attending to the subject matters thus can give lawyers a technique for how they can move between frameworks.
INTRODUCTION The growth of mediation has significantly challenged the lawyers craft of representing clients. What should a lawyer think and do while appearing with a client at a mediation session? The actions appropriate for a trial or similar adjudicatory hearing may be largely out of place before a mediator. In mediation, satisfaction of the clients goals can only come about through voluntary agreement by the other parties to the dispute, not by persuading a neutral decisionmaker of the rightness of ones cause.1 Nor will the actions most appropriate for bilateral negotiation always serve the interests of the client. The presence of the mediator changes the dynamics of the negotiation process, and can throw out of kilter the moves that might be most effective in simple bilateral negotiation. But mediation is an opportunity as well as an obstacle. It gives the lawyer options that are unavailable in adjudication and rare in negotiation. Lawyers need to know how to seize these opportunities.
Persuading the mediator of the rightness of the clients cause can be part of this task, but only in an indirect manner. Despite her formal impartiality, a mediator who sees the correctness or virtue of the clients claims may engage in a variety of actions that could influence the other party to come around to what the client wants. For instance, the mediator might subtly or not so subtly indicate her views on the legal merits of the clients claims, thereby inducing the other party to make some concessions in his bargaining positions. The mediator might indicate her views of the unfairness with which the client was treated, or the fairness of the settlement terms proposed by the client. Even without an explicit opinion, such views might be subtly conveyed through tone of voice, facial expressions, body language and control of the agenda of discussion. As useful as such persuasion might be to the client, persuasion of the neutral is still only one step in the process of trying to persuade the other party to do what the client wants, not an end it itself.
The mediation field is just beginning to articulate what lawyers should think and do while representing clients in mediation. We have lists of dos and donts, and a wide collection of war stories and suggestions.2 Some scholars have developed systematic approaches to the problem, primarily focusing on using mediation to overcome various strategic, cognitive, and emotional barriers to negotiated agreement.3 Others urge lawyers to use mediation for
developing enhanced settlement proposals, ones that would serve the interests of the parties better than simple compromises of bargaining positions.4 These are sound developments. But the field has not yet reached the stage of conceptual maturity it could have. Trial practice has received a much more thorough treatment, effectively putting together both general concepts and advice about specific actions.5 Negotiation by lawyers, drawing on extensive and continuing research in economics and psychology, has also received extensive treatment that is both conceptual and pragmatic, and quite different from our models of trial practice.6 Representation of clients in mediation draws on both persuasive legal advocacy and artful negotiation, and yet
For a recent and wide-ranging collection of advice to lawyers about mediation see H AN D BO O K O N Mediation (Thomas E. Carbonneau & Janeatte A. Jaeggi eds. 2006), including, among others, articles such as Joel E. Davidson, Successful Mediation: The Dos and Donts, in Id. at 71-76 and Karin S. Hobbs, Attention Attorneys! How to Achieve the Best Results in Mediation , in Id. at 177-184.
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Jean R. Sternlight, Lawyers Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 O H IO S T . J. O N D ISP . R ESO L. 269 (1999) (reviewing recent cognitive science about negotiation and decision-making for insight into how lawyers representing clients in mediation can be more effective.)
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Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 H ARV . N EGO . L. R EV . 103 (2005); H ARO LD I. A BRAM SO N , M ED IATIO N R EPRESEN TATIO N : A DVO CATING IN A P RO BLEM -S O LVIN G P RO CESS (2004). (setting out the goals and methods a lawyer representing a client can use in mediation to capture opportunities for value-creating resolutions.) For an approach to advocacy in mediation that is comprehensive and insightful, but perhaps somewhat less systematically conceptual, see J O H N C O O LEY , M ED IATIO N A D VO CACY ( 2002 ) ([T]he role of the mediator involves instinctive reactions, intuition, keen interpersonal skills, and sensitivity to subtle psychological and behavioral indicators as well as logic and rationality. Id. at 4.)
5 See, e.g. , R O BERT P. B U RN S , A T H EOR Y O F THE T RIAL (1999); T H O M AS A. M AU ET , T RIAL T ECH N IQ U ES (4 TH E D . 1996); A LBERT J. M OO RE ET AL., T RIAL A DVO CACY : I N FERENC ES , A RGU M EN TS AN D T ECH N IQ U ES (1996).
FOR
See, e.g ., R O BERT M N O O KIN , ET AL, B EY O ND W IN N IN G (2004); G. R ICH ARD S H ELL, B ARGAIN IN G A DVANTAGE (2007); C HRISTOPHER H O N EY M A N & A ND REA S CH N EID ER , T H E N EGO TIATO R S F IELDBO OK (2006).
does not fit well with either. It seems to be terrain in which the advocacy moves of trial practice and the techniques of negotiation collide. The mixture of these two sets of ideas produces a kind of conceptual fog. It would be desirable to burn the fog away. This article is an attempt to do so by advancing a relatively systematic and coherent account of what representation of clients entails in the distinctive process of mediation. Such an account should not be limited to the models of trial practice and negotiation. The task is made more complex by the fact that mediation theory has become extremely wide-ranging and varied. Many different concepts and modes of practice compete for attention and application. This article is preliminary and does not purport to advance a full theory of representation in mediation. It attempts to sketch out a possible theory, however, by articulating an underlying structure that can encompass the variety of approaches to mediation and make them available to lawyers, both conceptually and practically. Roughly speaking, the varied approaches to mediation can be divided into four categories. Some mediators and mediation focus on using mediation as an opportunity for the parties to negotiate in a distributive, positional manner. I will call this a Distributive framework. It is by far the most familiar framework, and the one in which most lawyers are inclined to work. It is probably the only one that most lawyers would recognize. A second category uses
mediation to uncover the parties underlying real world interests and needs, and uses those interests to craft agreements that will provide more tangible benefit to the parties than a simple distributive negotiation. This is a Value-creating framework. Still others treat the prime purpose of mediation quite differently, as an opportunity to repair or improvement of the parties relationship. This is a Relationship framework. The fourth category I will call Understanding. It uses mediation as an opportunity for the parties in conflict to increase their understanding of themselves and the others enmeshed in conflict with them. The parties use their increased understanding to make decide what to do about their conflict. Whether they reach an agreement that resolves their dispute is less important than increasing their mutual understanding of it. Understanding and distinguishing between these four categories is important for mediators. It is equally useful for lawyers who represent parties in mediation. The categories can guide lawyers in deciding how to plan, how to prepare their clients, and what to do in the
mediation itself. The task for lawyers is to recognize and become adept in working in each of these modes of thought and action. I propose that the categories are more than matters of convenience. They are coherent cognitive frameworks, each embodying characteristic mental ways of organizing information and stimulating action. Each is a distinct field of tacit knowledge. The frameworks enable lawyers to make quick, almost unconscious decisions about what to say and do; depending on the framework, certain actions seem obvious and certain information seems quite relevant, while other information and action seems inappropriate, if it comes up at all. To illustrate the frameworks and some of their differences I begin in Part I with four examples of how lawyers act in mediation, adapted from a book that describes actual mediations.7 In each, the lawyer and the mediator act at cross purposes. The lawyer handles the situation in ways that upset the goals the mediator seeks to achieve. Each is an example of lawyers using a different mental framework from the mediator, or using a framework in a different manner. The resulting conflict is not just a conflict of goals and methods. It is a conflict of ways of understanding mediation and the process of disputing. In Part II I describe the concept of frameworks in more detail. I show how the conflict between the lawyers and the mediators depicted in the examples arises from the fact that the lawyers and the mediators are using different frameworks. They are probably not seeing things in the way the others in the room do. Once we understand that the tension between lawyers and mediation is a mismatch of frameworks, we face the question of whether the discrepancy is inevitable. If lawyers could step into one of the alternative frameworks, their work in mediation could become consistent with the framework that the mediator might be using, rather than staying at odds with it. Moreover, a lawyers facility to move between frameworks is important even beyond the question of avoiding conflict with mediators. It might be important for lawyers to adopt one of the
alternative frameworks, regardless of what framework the mediator happens to be using. Precisely because mediation can provide such a rich variety of alternative frameworks for
J EFFREY K RIVIS , I M PRO VISATIO N AL N EGO TIATIO N (2006).
dealing with conflicts and disputes, it offers benefits to clients and to our system of disputing, beyond those that adversarial adjudication or even distributive, positional bargaining can provide. But urging lawyers to inhabit these alternative frameworks raises a number of questions: Can lawyers actually think in the alternative frameworks? Their legal training and experience, their sense of role, and the logical and distributive nature of much legal work8 may make it mentally difficult, if not impossible, to embrace any of the alternative frameworks. In Part III, I discuss why legal reasoning and lawyers mental habits should not disable them from adopting one or more of the alternative frameworks. Even if they can think and act in a variety of frameworks, ethical constraints of lawyering may prevent lawyers from doing so. Thus, the next question is whether lawyers may ethically adopt alternative frameworks when they are acting as the representative of a client in a mediation. Part IV describes why it is ethically permissible to do so. Part V takes up a related ethical question. Should lawyers seek to adopt the alternative frameworks? Even if it is permissible to do so, client objections, or lawyers own personal dislike of the alternatives, may inhibit them. I argue that the benefits that the alternative
frameworks of mediation, both to clients and to our systems of dispute resolution, are substantial enough to impose at least a modest obligation on lawyers to try to use them. The final question is how lawyers can bring the alternative frameworks into the mediation room. If frameworks are a form of tacit knowledge, it may be difficult for lawyers to consciously put them on or take them off like a suit of clothes. When mediators practice them, the frameworks may be seen as complex attitudes and skill sets that can only flourish after years of dedicated practice. But lawyers may have to adopt a variety of different frameworks without a longstanding dedication to one or another. In Part VI, I suggest a more accessible way for lawyers to at least begin to enter different frameworks. The guideposts are the subject matters that are discussed during the mediation. Certain subject matters are more distinctly part of some frameworks than they are of others. By observing the kinds of subject matters that are discussed
Legal reasoning and distributive, positional negotiation have analogous logical structures. Both involve categories with dividing lines between them. See text at note 44, infra.
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in a mediation, a lawyer can pick up which frameworks may be operating in the room. By bringing up certain critical subject matters herself, or by continuing to discuss those subject matters in more depth and breadth as a mediation progresses, a lawyer can influence the mediation to move into, or to stay within, a particular framework. I identify seven key subject areas for mediation discussion. They are: i.) What happened and what it meant; ii.) What can or will happen in the future; iii.) Law and legal rights; iv.) Fairness and moral rights; v.) Relationship; vi.) Feeling; and vii.) What someone wants, what they can get, and how they can get it. These subject matters do not each belong exclusively to one of the frameworks. Some can appear prominently in several; the particular content that is discussed within a subject matter may vary in different frameworks. They are only a suggestive diagnostic tool for identifying a framework in operation, not a definitive one. Similarly, if a lawyer or mediator were to move the discussion into one of these subject areas, or to continue talking in a subject area when the others seem ready to change the subject, it will not guarantee that the mediation or its participants will stay, or move into, the particular framework associated with the subject matter. But the subject areas do provide a reasonably accessible way for lawyers to try to guide the mediation and the other parties into a desired framework.
I. FOUR SCENES FROM A MEDIATION To describe the ways in which lawyers can operate at cross purposes with mediators and mediation, I have set out four different mediation incidents, inspired by a recent book describing a variety of mediations.9 Each highlights a different model or framework of mediation. Each
K RIVIS , supra note 7. I have used disputes described by Krivis, as well as some of the negotiation dynamics, but have imagined actions by lawyers in the mediation that Krivis does not describe. Krivis focuses on what mediators have done in the various situations he describes. I add accounts of lawyers to change the focus to
produces a different kind of conflict with a lawyer.
Incident 1 The Automobile Accident: The dispute is about an automobile accident at an intersection. The defendants car was making a left turn when it collided with the plaintiffs car, which was traveling in the opposite direction. The plaintiff alleged that the defendant had made the left turn without looking. By way of defense, the defendant alleged that the plaintiff had been speeding. The plaintiff suffered several broken ribs and some bruises and sprains and had some residual stiffness. He demanded $1 million in damages. The defendants lawyer, however, offered only $3,000 to settle the personal injury claims, giving as reasons the following facts: Under comparative negligence, the plaintiff was probably more than fifty percent responsible, because of his speeding, and thus entitled to nothing; plaintiffs medical insurance had paid for plaintiffs medical expenses; and plaintiffs personal injury lawyer was known to make extreme demands in settlement negotiations, only to settle on the eve of trial after making huge concessions.
The mediator sought to deal with the huge gap by meeting with each side separately (commonly called caucusing), expressing her opinion to each that their settlement positions were way out of line, were not supported by the facts, and did not reasonably reflect the likely outcome at trial. In her view, the extreme
settlement positions were taken only as a hardball negotiating strategy of dubious effectiveness. Despite the mediators interventions, the lawyers refused to change their settlement positions.10
what lawyers can and should do in mediation.

10 In Kriviss story from which this account is adapted, the plaintiffs lawyer initially refused to disclose medical information showing that the defendant was legally blind. The defense lawyer was not yet aware of the information, and the plaintiffs lawyer wanted to save it for surprise at trial. The mediator persuaded the plaintiffs lawyer to disclose to the defense lawyer, thus substantially increasing the defendants settlement offer. K RIVIS , supra note 7, at 154.
Did the lawyers do the right thing? In this instance, they were negotiating with highly positional strategies within a distributive framework. The framework was distributive in that the lawyers were negotiating about a single issue: the dollar amount of the settlement payment to the plaintiff. The issue was subject to a constant sum distribution: each dollar more to the plaintiff was an equivalent dollar less to the defendants insurance company. The lawyers strategies were positional in that their work consisted primarily of taking negotiation positions $1 million and $3,000, respectively with the aim of inducing large concessions from the other side, while conceding as little as possible themselves. The lawyers seemed to have a love of deadlines as a tactical negotiating tool; they expected that the other side would not make the largest concession in their position until trial was upon them.11 The mediator was also operating in a distributive framework. She was treating the size of the settlement payment as the only issue to be negotiated. And she accepted that the
settlement funds were to be distributed in accordance with the negotiating positions taken by the lawyers. What she was trying to do, however, was to speed up the process of making mutual concessions, to get to an agreed settlement number well before the eve of trial. She was trying to wean the lawyers from their highly competitive positional tactics. The conflict between the mediator and the lawyers was about how to play the tactics of the positional, distributive game.
Incident 2 The Real Estate Purchase: A religious school negotiated to purchase a building. There was some written communication between the school and the building owner, but before a formal real estate sales contract was signed, the owner signed a sales contract, for a higher price, with a commercial real estate buyer. The schools lawyer claimed that the school had a binding agreement to
See L EIGH L. T H O M PSO N , T H E M IN D AN D H EART OF TH E N EGOTIATOR 34-35 (3 D E D . 2005) (describing research showing that the rate of negotiation concessions increases as negotiators near their final deadlines, and that negotiators believe deadlines are a strategic weakness.) See also W illiam Zartman, Timing and Ripeness , in T H E N EGO TIATO R S F IELDBO OK 143 (Andrea Kupfer Schneider & Christopher Honeyman, eds.2006). The lawyers in this example may well have been using the mediation primarily as a device to obtain information from the other side, a kind of free discovery, rather than as a strategic step towards immediate settlement. If so, they had little interest in reaching an agreement at the mediation itself. But they were probably still operating in a distributive framework, using mediation to gather information to seize the largest possible share (or give up the smallest possible share) when the matter is settled, as it probably will be, later and closer to trial.
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purchase the property.
The owners lawyer alleged that any communication
between the school and the owner, whether oral or written, was no more than preliminary negotiation, and was not legally binding.
At a mediation of the dispute, which included the school, the building owner, and the third party buyers, the mediator sought to find out what plans the third party buyer had for the property. The buyers lawyer said that was private information and told the buyer not to discuss it.12
Did the buyers lawyer act effectively? Like the lawyers in the first incident, the buyers lawyer here was apparently operating in a distributive, positional framework. In that framework, one should be reluctant to reveal private information, because the other party might use it for tactical advantage. Information about ones plans could be used to ones detriment in a number of ways. Any settlement positions taken by the new buyer need to be credible. Information about the buyers plans might suggest that the buyers expressed settlement position was a bluff. The school would have then been less likely to agree to the buyers settlement terms. Unlike the first incident, however, the mediator here was not simply trying to speed up the exchange of concessions. Instead, the mediator can be understood to have been operating in an entirely different framework: value creating13 or interest-based negotiation. This framework conceives of negotiation and mediation as an opportunity to expand the pie, not just to distribute it. The mediator was looking for greater substantive efficiency, trying to find or invent exchanges that would make at least one party better off than they would have been with no agreement, while at the same time not diminishing the agreements value to the others. The key
In the case that inspired this example, the school was a religious one and the mediator wore a kippah, despite the fact that he was not an observant Jew, to elicit trust from the schools director. That effort seemed to work. The conflict was resolved by completing the sale of the property to the new buyer, who then leased the property to the school. Id. at 114-123. I have added the objection from the buyers lawyer, which does not appear in Kriviss account. Such an objection is consistent with a distributive, positional approach to negotiation, rather than one based on the parties underlying needs. In a positional, distributive approach, it is important to conceal information that could damage ones negotiating position.
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D AVID L AX AN D J AM ES S EBEN IU S , T H E M AN AGER AS N EGOTIATOR 88-116 (1986).
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is to identify interests of the parties that are complementary, and not entirely in conflict. By understanding their underlying needs and interests, the parties can invent options for mutual gain,14 The mediator in this instance asked about future plans to see if, in some way, the plans of the new owner might be satisfied without requiring the school to give up its needs.15
Incident 3 The Carwash Loan: The plaintiff and the defendant had known each other for several years, attending the same church and seeing each other at their childrens athletic events. The plaintiff loaned the defendant $30,000 to purchase and operate a carwash. When the defendant failed to repay as provided in the loan agreement, the plaintiff brought suit.
At the mediation, the mediator began to ask questions about how the plaintiff and defendant came to know each other and what kind of contact they had apart from the loan. The plaintiffs lawyer intervened, stating that the questions were
irrelevant to the case at hand. She asserted that the plaintiff had a very strong case, that she was hired to collect the debt, and that the mediator was just trying to get the plaintiff to make an unnecessary concession for the sake of friendship.16
Here, again, the lawyer was operating in a positional, distributive mode, looking to maximize the amount of the financial settlement. She expressed her worry that her client, out of
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R OGER F ISH ER , ET AL., G ETTIN G TO YES 56-80 (2 D E D . 1991).
In the case from which this example is drawn, the new owner did not immediately need the building for another use. He was thus in a position to take title and then rent the property to the school. The interests of both were satisfied without having to decide or compromise on the issue of who was legally entitled to the property, or how many dollars would be required to get the school to drop its lawsuit. See K RIVIS , supra note 7.
16 Id. at 92 ff. In Kriviss story, the plaintiffs lawyer objected to talk about relationship, but shrugged, gave in, and fell silent when the mediator got the creditor interested in how to preserve his friendship with the debtor. The mediator moved to a relationship framework by closing the lawyer out of the conversation, rather than having the lawyer participate.
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friendship, would make a concession that was not required either by the legal strength of the case or by the negotiation dynamics. Was she acting appropriately for a mediation? This mediator was operating in a yet a different framework. Rather than trying to speed up the positional negotiation dance, and rather than trying to create value by working with underlying needs and interests, the mediator was exploring the relationship between the parties. She could have been asking herself how it came about that two people who had both a social and a business relationship got into the situation in which they could not resolve the issue of the payment of the debt. Was there something about the way they related or communicated that caused or perpetuated the conflict? Looking forward, they would probably continue to have some kind of relationship, even if their business arrangements were terminated. Would that relationship be a satisfactory one, or would acrimony from their dispute unnecessarily poison it? Could the mediation be an opportunity for clarifying and improving the relationship between the disputants?
Incident 4 The Promotion: A fifty-two year old employee failed to get a promotion and a raise. She claimed that she was denied the promotion because of her age and because she had complained about certain company practices that she thought were immoral and possibly illegal. She also claimed that her supervisor had, because of her age, failed to assign her work that would demonstrate her competence.
The companys lawyer and the head of its human resources department appeared at the mediation. The employees supervisor did not. The mediator asked the company to have the supervisor attend. The companys lawyer refused, saying that this wasnt going to be a group therapy situation or an opportunity for the employee to get free discovery.17
See id. at 7 ff. In Kriviss account of the mediation of the discharge of an employee, the defendant rather than the lawyer objected to having the plaintiff talk about why the discharge had been so difficult for him, fearing that such talk would make the proceeding a therapy session rather than a settlement. The defense lawyer was
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The lawyer was operating in the familiar distributive, positional mode. Was this good lawyering? Information is a key element in positional negotiating. Each side seeks to obtain as much information about the other as it can, while concealing information that would undermine the credibility of ones commitment to a negotiating position, or would give the other side additional negotiating leverage. If the supervisor were to speak in the mediation, she might
have revealed information about what happened or about herself that would show the employees legal case to be stronger than the employees lawyer might have otherwise assumed. With a more optimistic view of the outcome of the case, the employee would have been less likely to settle for the small amount that the defendant would prefer. The mediation was not critical for the disclosure of information: If the matter had proceeded to pretrial discovery, the employee would have been able to take the supervisors deposition and get some of the same information.18 But depositions cost the employee money, and she could use any money saved for other pretrial preparation, or to avoid the demoralizing effect of incurring large expenses along the laborious road to trial. The mediator, however, was using a fourth framework. Rather than focusing on
information about the possible outcome of a trial, which would be used for positional jockeying, the mediator was seeking to learn how the participants understood what happened, how they understood the other parties to the conflict, and how they understood themselves. In what ways did the employee and the supervisor each misunderstand the other? What did each expect from the other, and from themselves, that got them into the conflict in the first place. What did they expect now that prevented them from managing the conflict without litigation? By increasing understanding, the mediator aimed to help the parties develop their own, more effective ways of dealing with others, with conflict situations, and with themselves. The conflict initially arose between the employee and the supervisor, although it was most likely linked to a web of
willing to hear the plaintiff, however, and the matter ultimately settled.
18 The mediation might produce more information than a deposition, because a deposition in limited to what is legally relevant. The matters discussed in the mediation is limited only by the will of the participants and the mediator. The mediation might also produce less information, since a witness is required to answer relevant, non-privileged deposition questions, but can refuse to speak in a mediation.
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situational factors and the expectations of others.
Dealing with the conflict in this fourth
framework cannot be done without the direct participation of the people who were there at its inception. The foregoing scenes pit mediators and lawyers against each other. In each, the lawyer operated in a way that thwarted the methods used by the mediator. In the midst of a process designed to manage conflict and resolve disputes, mediators and lawyers found themselves engaged in a conflict about the process itself. Is this conflict inevitable? Are lawyers
commanded by their ethical obligations to act in the positional, distributive manner described, regardless of how the mediator is treating the situation? Is there something about the way that lawyers think and make decisions that inevitably keeps them in the positional, distributive mode? The conflict presents a normative question as well. Should lawyers and mediators work in conjunction with each other, rather than at cross purposes? In my view, the conflict is neither necessary nor desirable. Lawyers representing clients in mediation can and should be able to work with the same focus and the same goals as mediators. And this is not simply because conflict makes people uncomfortable or should be
avoided. As many mediators know, conflict is not necessarily bad. It can be used to build better situations and better outcomes. Perhaps the tension between lawyers working in an adversarial mode and mediators working in a more collaborative one produces something that is better than either working alone or in congruence with the other.19 But I think that it would be better for lawyers and mediators to work congruently. Mediation has benefits for people in conflict
substantially different from and beyond what legal adjudication and the adversary process can provide. Lawyers who cut themselves and their clients off from those benefits, by adhering only to the distributive, positional ways of settling disputes, leave our dispute resolution system a poorer place. To explore how lawyers can work congruently with mediators, rather than in conflict with them, we need to understand more fully the nature of the conflicts exemplified by the
B ERN ARD M AY ER , B EY O ND N EUTRALITY : C O N FRO N TIN G THE C RISIS IN C O N FLICT R ESO LU TIO N 248-279 (2004) (arguing that there is a place for adversarial lawyers in a good conflict management process, although it seems to require that lawyers direct their efforts somewhere other than the mediation room itself.)
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incidents. In my view, the conflicts do not arise simply from personal or stylistic differences between specific mediators and lawyers. They do not result from mediators and lawyers each trying to seize personal control of the situation. Instead, they exemplify more fundamental mental frameworks or schemas of conflict.20 The incidents can arise from basic differences between the ways the lawyers and the mediators understand conflict and what to do about it. For lawyers and mediators to work in concert, they need to share the mental frameworks and schemas of the other.
II. THE MENTAL FRAMEWORKS OF MEDIATION Mediation theory has exploded with a mind-boggling diversity of concepts and views. Is mediation bargaining or therapy?21 Do mediators handle the narrow issues that the parties present to them, or the broader range of issues, needs and interests that have driven the parties into the dispute?22 Is the goal of mediation to bring the disputing parties to agreement, or just to enable them to understand the other party better and become more effective in handling their concerns themselves?23
For a sobering description of how assumptions about litigation and mediation get in the way of satisfying client needs in medical malpractice litigation, see Tamara Relis, Consequences of Power , 12 H ARV . N EGO T . L. R EV . 445 (2007) (arguing that pervasive assumptions about litigation and related actions prevent parties from obtaining the benefits that they want and that mediation might be able to provide.) One might see my arguments here as trying to articulate a path between litigation assumptions and those of mediation. The task is made particularly complex because, in my view, there is not one model of mediation, but several.
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See, e.g., Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 L. & P O LY . Q. 7, 19-
20 (1986).
22 E.g., Leonard L. Riskin, Understanding Mediators Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 H ARV . N EGO . L. R EV . 7 (1996) (hereinafter MediatorsOrientations ) (noting that a mediators interventions can be understood as choices between more facilitative or more evaluative interventions, and between a broader or narrower definition of the problem to be addressed.) and Leonard L. Riskin, Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 N O TRE D AM E L. R EV . 1 (2003) (hereinafter Decisionmaking in Mediation ) (suggesting a move away from the facilitative-evaluative spectrum in describing a mediators intervention, replacing it with a spectrum with one that runs from directive to elicitative, instead. The new, new grid retains the broad to narrow scale in describing a mediators choices for how to understand and address the dispute or conflict.)
E.g., R O BERT B ARU CH B U SH & J O SEPH F O LGER , T H E P RO M ISE O F M ED IATIO N (2 D ED . 2005) (describing the most important goal of mediation and mediators to be Transformative rather than problem solving. Under this approach, the mediator does not seek a resolution of the dispute, but instead focuses on increasing each
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I think this welter of voices can best be understood in terms of four distinct mental models or cognitive frameworks of mediation: (i.) Distributive negotiation through positional methods; (ii.) Value-creating negotiation through interest-based methods; (iii.) Relationship; and (iv.) Understanding: A variety of methods or approaches that focus on increasing the parties understanding of themselves, the others in the conflict, and the situation. (For lack of a single term in the literature, I will call this fourth category Understanding, although it is not limited to the specific, so-named Understanding method developed by Gary Friedman and Jack Himmelstein.24) Each of these is exemplified by the mediators work in one of the incidents described above. And in each incident, the conflict arose from the fact that the lawyer was operating in a distributive framework with a highly positional method, while the mediator was operating in a different framework (in the latter three) or in the same framework but at a different pace (the first incident.) The question for lawyers in mediation is whether, in their role as lawyers for clients, they can inhabit any or all of the various frameworks that mediators use, or whether they are limited to the distributive framework and the competitive style that each lawyer exemplified in the incidents. By mental frameworks I mean something different from techniques or methods. The characteristics of the four frameworks dividing the pie through distributive gamesmanship, enlarging the pie with new options, considering and trying to improve the relationship between the parties, and giving the parties greater perspective about each other are familiar to mediators and students of mediation. But are these simply different techniques, used by mediators in a haphazard fashion, according to personal preference or habitual response? Do mediators pick them for instrumental reasons, such a focusing on relationship to soften a partys resistance to
partys empowerment to solve their problems more effectively on their own, and each partys recognition of the other partys situation, concerns and perceptions.) G ARY F RIED M A N AN D J ACK H IM M ELSTEIN , C HALLENGING C ON FLICT : M ED IATIO N T HRO UGH U ND ERSTAND ING (2008).
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concessions in their negotiating position? Are the techniques best understood as arrayed across one or two continuous scales, with a mediator picking and choosing along the scale as seems appropriate?25 As I use the term, mental frameworks are more distinct than that. I treat each as a relatively coherent mental system. It tells the person operating within it mediator, lawyer, or disputant what kinds of questions, statements, and interactions with the other disputing parties make sense.26 Sometimes, the framework will be apparent to an actor, who will make a
conscious decision to say or so something appropriate for the framework she intends to use. Someone using a Relationship framework, for instance, may say to herself that she needs to know more about the parties relationship, and will consciously decide to seek relevant information. Much more often, however, the mental framework operates in a tacit, unarticulated way. Information about relationship will just seem more pertinent to an actor whose thinking is structured by the Relationship framework. The actor will want to seek out more information about relationship without making a conscious decision to do so, and perhaps by not even being fully aware of what she wants to know or why. The Transformative approach fostered by Baruch Bush and Joseph Folger,27 (a part of my Understanding framework) is challenging to many mediators and lawyers precisely because it engages a different framework of thinking both explicit and tacit from the Distributive framework that many mediators and most lawyers inhabit. Transformative mediators refuse to make resolution of the dispute the goal of the process or the measure of success. Whether they consciously articulate it or not, it is obvious to them that the terms of possible resolution are of minimal importance. At most, the terms
Leonard Riskins grids, whether old, new old, or new new, conceptualize mediator choices of action as sliding along several continuous scales, with no obvious breaking points. His model of a 2 X 2 matrix along two scales tells us about differences in quantity, but does not help us decide whether mediators actions differ in quality, or when differences in quality occur. See Decisionmaking in Mediation, supra note 22.
26 This kind of mental structure is sometimes called schema, or script. For a study of mediatorlike ombudspersons, using the concept W orking Mental Model to describe the schematic mental blueprints that practitioners use, see Kenneth Kressel & Howard Gadlin, Mediating Among Scientists: A Mental Model of Expert Practice (forthcoming in N EGO TIATIO N AN D C O N FLICT R ES .)
25
27
See T H E P RO M ISE O F M ED IATIO N , supra note 23.
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become relevant late in the process, and arise from the parties own decision to use their greater empowerment and recognition to structure a specific plan for what to do. For people operating in a Distributive mental framework, however, it is equally obvious that one needs to pay attention to possible terms of resolution from the very beginning of the process. from the Distributive, Value-creating and Relationship frameworks.28 The four mental frameworks, as I describe them, are not watertight buckets, each excluding the contents of the other. Many specific statements or actions can appropriately appear in several of the frameworks. For instance, as just noted, a mediator thinking in a Distributive framework may focus on the relationship of the parties. It might be useful to encourage the parties to modify their settlement positions and elicit more distributive concessions. But a mediator thinking in a Relationship framework would focus on the parties relationship for intrinsic reasons, not just because the focus is useful for other purposes. For such a mediator, the flaws in the parties relationship and communication would be seen as the key issue. The Distributive framework is well understood. One might even call it the default framework, the model of conflict and conflict resolution that first comes to mind when people think about the topic. And it fits well with disputed legal claims, since legal claims primarily focus on whether one of the parties is entitled to take something from the other. The Valuecreating framework is also well developed, both in the field of legal negotiation29 and, more recently, in guidance for lawyers representing clients in mediation.30 The Relationship The
Understanding framework, as exemplified by the Transformative model, is qualitatively different
Id. at 45 [W ]e do not believe that [the different approaches to mediation] can be combined or integrated, at either the theoretical or practical levels. In effect, each of these theories represents a coherent viewpoint that guides ones view of both the meaning of conflict and the value of intervention. The coherent viewpoint does more than guide the mediators view of meaning and the value of intervention. It also guides, often tacitly, a mediators specific actions and statements in the mediation itself.
29 See, as examples from a huge literature, T H E M AN AGER AS N EGO TIATO R , supra note 13 and G ETTIN G TO YES, supra note 14, as well as B EY O ND W IN N IN G , supra note 6, and B ARGAINING FOR A DVANTAGE , supra note 6.
28
See M ED IATIO N R EPRESEN TATIO N supra note 4 and Lawyers Representation of Client in Mediation, supra note 3.
30
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framework may be more difficult to see as a separate cognitive entity.31 By Relationship I mean something more than whether the parties are friendly or cordial or hostile to each other, or whether they have some formal bond, such as belonging to the same family or same organization. The concept encompasses more generally issues of how engage and communicate with each other, as well as what expectations they may have about how each should relate to the other. It can be an aspect of the latent causes of conflicts, when parties hostility and
dysfunction arises from aspects of their communication and relationship that they do not perceive or understand. Relationship issues may be more difficult to understand as separate cognitive framework because the parties relationship can appear in Distributive, Value-creating and Understanding frameworks, as well. A mediator working in a Distributive framework, for instance, may be concerned with how the parties are relating in the mediation itself: If they are more comfortable with each other, or are communicating better, they should be better able to make the kind of reciprocal concessions required to find a mutually agreeable settlement position. Similarly, if the parties in a Value-creating framework are seeking to construct an ongoing arrangement that will benefit both, the quality and effectiveness of their future relationship will have an important bearing on the success of their agreement. In each of these, the relationship issues are understood secondary to the dynamics of the primary framework, important in an instrumental way to make the work in the primary framework more effective. The Relationship framework, by contrast, gives primacy to understanding and dealing with the parties relationship. As an example, a mediator who seeks to identify and resolve a latent conflict between the disputants rather than distribute assets, increase mutual value, or enhance mutual understanding seems to me to be working in a Relationship framework. The task of
To examine the role of repairing or improving relationships in actual mediations, Dwight Golann surveyed participants about relationship issues in their mediations. He found that relationship repair was articulated as one goal, but usually not achieved in practice. It became secondary to other issues and other dynamics in the mediation. I suspect that relationship issues were shunted aside because the participants were operating in either a Distributive or a Value-creating framework, and the relationship issues simply could not keep their place in the talk and decision-making that occurred. This remains a suspicion, since Golanns account does not, and could not, provide the kind of detail about the mediations that would be necessary to examine this issue. Dwight Golann, Is Legal Mediation a Process of Repair--or Separation? An Empirical Study, and its Implications, 7 H ARV . N EGO T . L. R EV . 301 (2002).
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the mediator is to reveal the latent conflict and resolve it.32 Getting the parties to a common position, or finding new, mutually beneficial options, are not what the Relationship mediator is about. Some readers might feel that I have improperly split a single varied mental concept of mediation into four distinct frameworks. Others may protest that I have improperly lumped together mediation styles that should be kept quite distinct.33 This is particularly true for the fourth category: Understanding. Not only does that include the Understanding model of Gary Friedman and Jack Himmelstein34 and the Transformative model of Baruch Bush and Joseph Folger,35 it also includes such approaches as Narrative Mediation36 and Insight Mediation37 Each of these has features, goals, and operating assumptions that are different from the others. But for
32 Psychologist Kenneth Kressel has described as strategic a style of mediation in which the mediator posits that the apparent conflict arises from a latent one, and makes it her task to bring the latent conflict to the surface and change the expectations the parties have of each other and the way they communicate. Kenneth Kressel, The Strategic Style of Mediation, 24 C O N FLICT R ESO L. Q. 251, 252, 257 (2007) ([T]he focus of the mediators attention and activity [in the strategic style] is on ascertaining wehther there is an underlying or latent cause that has fielded the parties conflict. The mediators intervention [in a child custody dispute] hinged on surfacing a maladaptive communication pattern between the father and his children.) Kressel does not categorize this style as drawing on a relationship framework, but I believe it appropriately fits within the relationship framework I am describing here. The relationship framework gives special attention to problems in the relationship, whether those problems are patent and known to the participants, and latent and only suspected by the mediator.
The tension between splitting apart things that should be kept together, and lumping together things that should be kept apart, hovers over any effort to classify. A modern example is bird taxonomy, which is undergoing substantial change, as some bird species are split into several new species (increasing the ability of birders to add to the size of their life lists) and lumping together as one species groups of birds that had formerly been known as separate. See http://www.wildbirds.com/dnn/IdentifyBirds/BirdTaxonomy/tabid/109/Default.aspx (last visited January 3, 2008).
34
33
See note 24 supra . See note 23 supra .
35
J O H N W IN SLAD E & G ERALD M O N K , N ARRA TIVE M ED IATIO N : A N EW A PPRO ACH TO C ON FLICT R ESO LU TIO N (2000) (describing conflict as growing out of the differing and competing stories, or narratives, that each party uses to explain to themselves and to others what has happened, and further describing the mediation of conflict as helping the parties develop a new narrative or story about themselves and the situation that will enable them to do something appropriate and effective about the conflict and move on.) Cheryl A. Picard & Kenneth R. Melchin, Insight Mediation: A Learning Centered Mediation Model, 23 N EGO TIATIO N J. 35 (2007) (describing a method which seeks to learn more about how the conflict threatens what is important to each party, permitting a shift in attitudes and space for creative action.)
37
36
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our purposes, they share a key conceptual feature that distinguishes them from the Distributive, Value-creating and Relationship frameworks: an emphasis on improved reciprocal understanding between the parties. They treat this goal as an intrinsic one, not as an instrumental step to some other goal such as reaching an agreement. They view the parties perception of the conflict as malleable; through the mediation the parties may come to understand their conflict in a different way, a way that comes from their own insight, rather than from the insights of the mediator. These approaches also minimize the mediators direct role in solving the dispute, and maximize the opportunity and responsibility of the parties to develop their own resolution. A Distributive mediator might unilaterally develop a compromise position and influence the parties to accept it. A Value-creating mediator might unilaterally see options for mutual gain that the parties have not yet recognized, and use the mediation as an occasion to tell it to the parties. A Relationship mediator may understand the parties latent conflict and show them what they need to do to resolve it. But the mediators of the Understanding framework let the parties develop for
themselves ideas for how to move to a better future, and even to decide whether to resolve the dispute or not.38 The Understanding framework has important similarities to the Relationship framework. In the Understanding approaches, the conflict is seen to arise in part from features of the parties relationship, and the conflict itself contributes to distorted or partial communication. But the problems with the relationship are not the key feature of the
Understanding framework. For this framework, improving understanding will enable the parties to improve or reshape their relationship as they decide. The recent book by Roger Fisher and Daniel Shapiro39 about handling emotions in negotiation provides a vivid example of the difference between Distributive, Value-creating and Understanding frameworks. It recounts the story of Fishers advice to the buyer of a radio station who was stymied by the refusal of one of the co-owners to sell. Fisher asked the buyer
38 See T H E P RO M ISE O F M ED IATIO N , supra note 23, at 53 ([P]arties who come to mediators are looking for and valuing more than an efficient way to reach agreements on specific issues.) and N ARRATIVE M ED IATIO N , supra note 36, at 90 (At the end of the mediation process many people are in a stronger position to negotiate the details about settling the dispute themselves.)
39
R OGER F ISHER & D AN IEL S HAPIRO , B EY O ND R EASO N (2007).
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what he knew about the recalcitrant co-owner. From the small amount of information available nobody had asked the co-owner he inferred that the co-owner had roots in the community, a growing family, and wanted to continue his work. Fisher advised the buyer to offer the coowner a position with the station after the sale, together with an enhanced sale price, because he needed to have the co-owner take a smaller share of the business. The co-owner accepted and the deal went through. The buyer was pleased, and gleefully told Fisher that the seller fell for the negotiation move.40 The buyer understood the deal as a distributive, positional one; he won by making the more clever positional move to induce the seller to agree. Fisher, however, understood the deal as a Value-creating one. Using underlying interests, he constructed terms continued work at the station that were high gain to the seller but low cost to the buyer and thus created more overall value than any single cash amount would have done. For someone in an Understanding framework, however, even this arrangement would have been unsatisfactory. It would have failed because the buyer never got it. He never understood how the situation looked from the perspective of the seller. He never understood enough about the seller or enough about his own perceptions and bargaining style that had kept the parties from being able to construct the appropriate sale terms. From an Understanding framework, the fact that the sale was successfully accomplished would be secondary to the increased understanding that permitted the parties to get there themselves. I find this four part division plausible because it corresponds to four different kinds of goals that can arise for someone in conflict. I do not mean legal conflicts. Instead, I refer to the variety of ordinary conflicts that people regularly face in life. The conflicts might have legal aspects, or might be expressed as legal claims or acted upon in a legal forum. But the ordinary goals can exist, and usually do, regardless of whether one expresses them as legal issues. First, someone experiencing a conflict may wish that their opponents in the conflict would give in to them, taking the action or providing the thing that the first person wants. The person needs the action to eliminate or at least assuage her sense of conflict or loss. Most commonly, this would require the opponent to come around to the first persons position. The
40
Id. at 126.
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position might be a tangible object, or an amount of money, or ceasing an action that the first person finds troublesome. This is the kind of goal sought by distributive, positional bargaining; if you cant get a complete concession from the other party, at least you can seek one that gives you as much of what you want as possible. It can also include nondivisible things, such as bringing the other party around to the understanding that you are right, or that you deserve the thing in question, although total victories such as this are less common in conflicts than compromises. The second kind of goal is to seek some kind of way to get what you want while minimizing the loss or concession that the offending party must suffer to give it to you. A key question for this kind of goal would be something like, Isnt there some way you can give me that, or do that, without your having to hurt yourself to do it? Mary Parker Follett, one of the founders of our modern understanding of conflict management, asked this kind of question when she solved the problem of whether to open a library window by opening a window in an adjacent room, thus giving the other library patron the fresh air he wanted but not imposing an unwanted draft on her.41 That kind of problem solving goal seeks, as does our second framework, a value creating solution. The third kind of goal focuses on relationship. Finding themselves in conflict about some object or action, people might be troubled by what the disagreement is doing to their relationship. Their goal would be to stabilize or repair their relationship. We recognize this more in family situations, including divorces, inheritance disputes, family businesses, and the like, as parties seek to get past the conflict for the sake of maintaining some form of relationship. We might expect to see it less often in workplace relationships, or between people with a service relationship. We might see it even less, if ever, in conflicts between strangers. But even between strangers, the parties may develop a relationship with regard to the conflict they perceive between them, and wish to relate to each other in a way that does not fan the flames. It is this disturbance of relationships that leads me to place apologies in the category of relationship issues.
41
Apologies, in the fullest sense of the term, involve reconstructing a

OF
W RIITNGS FROM
THE
Mary Parker Follett, Constructive Conflict in P RO PH ET O F M AN GEM EN T : A CLELBRATIO N 1920'S 77 (Pauline Graham ed., 1995).
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relationship between people. One person acted in a way that caused harm and/or an affront to another. By the apology, the harm-doer seeks to correct the imbalance between them that the conduct created. At their fullest, apologies recast the balance of power between the parties. By his offending action, the offender has exercised unwarranted power over the other. But by offering an apology, the offender reverses the power relationship. The recipient of the offense now has power over the offender: the unconstrained power to decide whether to forgive.42 T h i s relationship quality is most apparent in full apologies, which have been called apologies of responsibility.43 Finally, people in conflict might find themselves asking what could have gotten into the other person that resulted in their taking such offensive action. They might be mystified and frustrated by the fact that the others in the conflict seem so unable to understand things from their perspective. Or they might even be a little surprised or disappointed by their own anger or stubbornness, or sense of helplessness in the conflict. Their goal in this context would be to have the others understand them better, and perhaps to understand the others better, as well: They seek understanding.44 These feelings and goals are part of our normal social lives. They may seem foreign to formal disputing. But, as many mediators know, the ordinary dynamics of conflict do not drop away when a dispute takes on the formal attributes of a litigation or mediation. The more structured and formal conflict carries a cloud of ordinary social conflict dynamics with it. The conflict management frameworks I have described operate in mediation for the same reasons and
See N ICH O LAS T AVU CH IS , M EA C U LPA : A SO CIO LO GY O F A PO LO GY AN D R ECO N CILIATIO N 35 (1991) (Once the symbolic overture has been made [by offering an apology], the victim alone holds the keys of redemption and reconciliation.); Carl D. Schneider, What it Means to Be Sorry: The Power of Apology in Mediation , 17 M ED IATIO N Q. 265 (2000). Jennifer K. Robbennolt, Apologies and Legal Settlement: an Empirical Examination , 102 M ICH . L. R EV . 460 , 506 (2003). ( Full apologies were seen as mitigating potential damage to the relationship . . .)
44 For an example of using increased mutual understanding as a way to improve functioning in a work setting, not limited to situations with a recognizable conflict, see R OBERT K EGAN & L ISA L ASKO W L AH EY , H O W W E T ALK C AN C H AN GE THE W AY W E W ORK : S EVEN L ANGUAGES FOR T RAN SFO RM ATIO N (2001) (explaining a systematic method of increasing both self understanding and understanding of others so as to overcome interpersonal and intrapersonal obstacles to more satisfactory functioning). 43
42
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in the same way as they operate in unmediated, informal conflict situations. We now are in a position to see what it would take for lawyers to do their work in concert with mediators, rather than in opposition to them. Drawing on their nonprofessional repertoire for dealing with conflict, they could align themselves with the framework that the mediator is using. To return to the incidents with which we began the discussion, we can see how the lawyers could have entered into the framework used by the mediator and permitted or encouraged the exchange of information that was pertinent to that framework, rather than blocking it. The lawyer in the first example could seek to get through the exchange of
concessions and the modification of settlement positions quickly and fairly, finding a way to a reasonable middle ground without delay and posturing. The lawyer in the second example could work assiduously to articulate the underlying needs and interests of all the parties, and then work creatively to find ways to meet the needs of one without sacrificing the needs of the other. In the third example, the lawyer could welcome a fuller account of the parties relationship, with an eye to understanding how repairing or improving the relationship might provide a path towards resolution. And in the fourth incident, the lawyer could endorse a face-to-face encounter
between the employee and his or her immediate supervisor, under the guidance of a mediator working in the Understanding framework, to see if a change in the antagonists narratives, or their mutual (mis)understanding, or insight, or empowerment, could have released them from their conflict. Suggesting that lawyers engage in these alternative frameworks carries some important questions. Can lawyers even do these things? Is it cognitively possible for lawyers who have been trained in the rigorous forms of legal reasoning, and who think about their clients problems that way every day, to work within these alternative mental frameworks as well? The question is particularly challenging because the framework are not simply points along a continuum, allowing a lawyer to slide up or down as one would tune a radio. Instead, each is qualitatively different from the other, entailing a different mind set. Moving from one to another might be more like an actor taking on diametrically different roles on consecutive nights in the theater, magnified by the fact that each role had to be played extemporaneously, without memorized lines. Some remarkable kind of shape-shifting seems to be called for. I will take up
26
the question of whether lawyer can work within these frameworks. Beyond the question of whether lawyers can mentally do this, we face the question of whether such differing mental frameworks are ethically permissible. May lawyers operate
within these frameworks? Or do the ethical rules and a proper sense of role require lawyers to remain within the distributive, positional mode exemplified by the lawyers in the examples? The ethical question has another dimension as well. Even if lawyers may operate within differing mental frameworks, should they do so? Or are they free to treat the possibilities as no more than interesting ideas, something permissible for others to do, but not something they need not bother themselves about? Finally, we need to address the question of how lawyers can implement these mental frameworks in their work in the mediation room. The potential ability to do so, the ethical permission to do so, and even an ethical imperative to try, will amount to little unless the lawyers can take actions that will bring the framework into the room. That is the last topic I will take up.
III. CAN LAWYERS THINK LIKE MEDIATORS? We have many reasons to think that lawyers, representing clients in an adversarial dispute, cannot think or act in ways that will craft new options for mutual gain, or will improve relationships, or enhance self knowledge and knowledge of others. Some of these relate to the cognitive and behaviorial tools with which lawyers do their work. Some relate to the ways many people deal with conflict much of the time. At the beginning of our modern interest in mediation, Leonard Riskin reminded us that lawyers think differently from mediators, and the kind of thinking that mediators do remains invisible to most lawyers. They just dont see it.45 The four mental frameworks I have described in this article help us understand more clearly what that might mean. about mutually exclusive categories. Legal reasoning is all
The doctrines of law articulate the categories,
distinguishing legal rights from an absence of legal rights. Under the facts, the conflict situation falls into one category or another. If the defendants actions and the plaintiffs situation fall
45
Leonard Riskin, Mediation and Lawyers, 43 O H IO S T . L. J. 29 (1982).
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within the category of a violation of the plaintiffs right, the plaintiff is entitled to a courtordered remedy. If the actions and situations do not fall within that category, the defendant is free to proceed on her way with no more interference. As a logical matter, in each situation the person with the complaint either falls within the category of legal right or does not. Because of its binary categorical nature, legal reasoning, including the problem of proving a legal claim, bears a strong structural similarity to the distributive concept of negotiation. In litigation, if a legal claim is on the plaintiffs side of the divide, it cant be owned by the defendant. In distributive negotiation, if part of an asset is negotiated to the claimants side, it has been lost by the other claimant. Consequently, lawyers may have a difficult time understanding how their client might give something to the other side without losing an equivalent value of what is given, or, conversely, how they might ask the other side to give their client something that would be a gain for their client without being an equivalent loss to the other side.46 The sociologist Charles Tilly describes a related conflict of frameworks that might prevent a lawyer from being able to think beyond the distributive model of dispute resolution. He points out that, when faced with trouble or an interpersonal problem to be dealt with, people respond in one of four qualitatively different modes of talk. These are Convention, Stories, Codes, and Technical Reasons.47 Although my description necessarily oversimplifies Tillys subtle analysis, conventions are the kind of brief statement that we often make in a situation of conflict, such as change is always hard, or hell get used to it. Stories are more extended narratives, explaining what has happened and perhaps what should happen, often with a moral implication or even an explicit moral point. Codes are the invocation of specialized sets of rules and standards for dealing with the conflict. Technical Reasons, such as an engineers
explanation of why the construction cannot be completed without a redesign and greater expense, rely on the objective determinations of technical disciplines.
See generally, Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: the Structure of Problem Solving , 31 UCLA L. R EV . 754(1984).
47
46
C H ARLES T ILLY , W H Y ? 15 (2006).
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Lawyers address problems through Codes.48 They rely on legal reasoning which, as Tilly describes it, is qualitatively different from conventions and stories. (In Tillys analysis, doctors also use their codes, such as codes about differential diagnosis, to handle the problems that face them.49) While the Distributive mediation framework is congruent with the logical structure of lawyers codes, the other three mediation frameworks are more in keeping with Convention and Stories as ways of dealing with conflict. In Malcolm Gladwells insightful account of a
mediation between a purse snatcher and his victim, he uses Tillys categories to show how the interchange between the two comes to a satisfactory fruition when they change their mode of talk. The mediation was part of a restorative justice session,50 held between the victim and the defendant after the defendant had been found guilty but before he was sentenced. It was also attended by the victims husband, and by the defendants partner and their infant child. The talk, Gladwell notes, avoided the code talk of the law, and instead flowed into story telling that elucidated cause and effect, with moral implications.51 We can see a similar clash of types of talk in Jeff Kichavens account of a mediation between a bank customer and a bank that had unwittingly destroyed the contents of the customers safe deposit box, which may have included personal memorabilia such as love letters or a lock of hair. The customers husband and co-renter of the box had died and the bank had been unsuccessful in trying to find his widow.52 As mediator, Kichaven suggested that the bank acknowledge the pain that its destruction of the boxs contents had caused, and apologize, without admitting liability. The banks lawyer would not do so. Its lawyer stonily asserted that the bank had no liability under the law. Although Kichaven did not explain it this way, with the
48
Id. at 96ff. Id at 108-114.
49
See generally Mark Umbreit et al., Restorative Justice in Action: Restorative Justice in the Twenty-first Century: a Social Movement Full of Opportunities and Pitfalls, 89 M ARQ . L. R EV . 251 (2005).
51 Malcolm Gladwell, Heres W hy, T H E N EW Y ORKER , April 10, 2007, available at http://www.newyorker.com/archive/2006/04/10/060410crbo_books.
50
Jeff Kichaven, Apology in Mediation: Sorry to Say, Its Much Overrated, available at http://www.mediate.com//articles/kichavenJ2.cfm.
52
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help of Tillys categories of talk we can see that he was trying to move the conversation from one form to another. While the lawyer was speaking in Code, Kichaven tried to turn the conversation to Conventions (such as The bank values its longtime customers and is distressed when things go wrong for them. or Unfortunately, things sometimes slip through the cracks in a bureaucratic organization, and were sorry for that.) or maybe to Stories (such as explaining in some detail all the steps the bank took to keep this from happening and why its procedures, which are usually beneficial, caused an unforeseen loss in this circumstance). The lawyer would not move with him. It is noteworthy that in Gladwells story, by contrast, there was no lawyer in the room, and thus no one invested in explaining things through Codes. As strong as the tendency is for lawyers to think and talk in binary, either-or terms, or to talk in Codes rather than Conventions or Stories, these attributes of lawyerly thinking do not bar lawyers from entering into the Value-creating, Relationship or Understanding frameworks. First, Tilly notes that when we give explanations, we do not limit ourselves to one mode of talk. Several or all of them can be implemented over a single effort to explain, understand, and justify.53 I will assume that, when they are acting in their personal roles, rather than their professional ones, lawyers use Conventions and Stories just as other people do. While their use of Conventions and Stories might be affected or reduced by their professional love of thinking in Codes, it isnt eliminated. Lawyers may not want to use Conventions and Stories while acting as lawyers, but there is nothing in the modes of talk, as Tilly describes it, that would prevent them. More importantly, Tillys account of Codes may understate the degree to which lawyers actually use Conventions and Stories as part of their work as lawyers. When lawyers are assessing the scope and effect of a precedent, for instance, they may use convention-like reasons to explain themselves, such as discounting a case because its author is a known judicial maverick whose opinions do not carry much weight. Similarly, negotiation talk, through which most cases are resolved, is filled with conventions about the negotiation process itself, even if the underlying legal issues need to be addressed with legalese, i.e., Code talk. For instance, a lawyer may refuse to give a new settlement proposal because she does not want to negotiate against
53
See W H Y ? supra note 47, at 22.
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herself. Beyond such conventions, stories and story-telling often play an important part in lawyers formal talk in the courtroom. Narratives are stories with beginnings, middles, and ends, with accounts of a trouble or disruption, and with moral implications about the trouble and the way to handle it. Effective trial lawyers use narratives in this kind of form to present cases to juries, judges and other adjudicators.54 If anything, lawyers can explain why in Tillys sense of the term with greater facility and elaboration by using narratives than simply by using codes. Tillys categories help us understand the deep and qualitative differences that exist between the four cognitive frameworks of mediation, and thus shed light on why it may be difficult for lawyers to move beyond the Distributive framework. But Tillys categories do not establish that the mental arsenal of lawyers prevents them from using the frameworks that are needed for Value creating, Relationship and Understanding ways of mediating. This is not to say that it is easy for lawyers to shift from their familiar Distributive framework to one of the others. Negotiators have a difficult time implementing a value-creating mode, even when the opportunity arises. Researchers have found, for instance, that when
negotiators were presented with problems that could be solved either by compromises, by tradeoffs, or by contingent agreements that actually added value (by capitalizing on the contingencies), they tended to miss the contingent, value-adding agreements and rely on negotiating for compromises, unless they had first been given negotiation training that used guided analogies that demonstrated how to find more value through contingent agreements.55 Other negotiation scholars have noted that people tend to negotiate in a value creating way only when they have an expectation that strictly distributive bargaining will cost too much, or that value creating negotiation will be more likely than distributive bargaining to produce a desirable
See, e.g., A N TH O NY G. A M STERD AM & J ERO M E B RU N ER , M IN D IN G THE L AW 110-111 (2000) (Law lives on narrative . . . the law is awash in storytelling. . . . questions and answers in . . . matters of fact depend largely upon ones choice (considered or unconsidered) of some overall narrative as best describing what happened or how the world works. ) (emphasis in original) Dedre Gentner, et al., Learning and Transfer: A General Role for Analogical Encoding 95 J. E D U C . P SY CH O L 393 (2003).
55
54
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result.56 Lacking that expectation in a particular situation, they will tend to use a distributive framework and positional methods instead. Thus, we cannot expect that lawyers will easily move away from the Distributive framework and bring themselves into collaboration with mediators who are operating in one of the other frameworks. But the obstacles to their move do not arise from something distinct about their lawyerly thinking. They are the same obstacles that anyone who reacts to conflict in a distributive manner would need to deal with.
IV. MAY LAWYERS THINK LIKE MEDIATORS? Even if there is nothing in lawyers mental architecture that would keep them in opposition to mediators, their ethical obligations might present obstacles. As agents for their clients, and as professionals subject to the ethical standards of their field, they are obligated to act diligently and loyally in pursuit of their clients interests.57 Does this mean that lawyers are ethically bound to negotiate in a Distributive framework, using positional tactics to distribute the maximum possible tangible value to their clients, regardless of the opportunities presented by mediation? If so, lawyers would be ethically wrong to adopt Value creating, Relationship or Understanding approaches. The lawyers in the four scenes that began this article would all be acting properly, and would all run the risk of acting unethically if they were to abandon their
D EAN G. P RU ITT & S UN G H EE K IM , S O CIAL C ON FLICT :E SCALATIO N , STALEM ATE , AN D 48ff.(3 D E D . 2004). (Problem solving negotiation is more frequently used when it is perceived as more feasible. The perception of feasibility depends on a variety of factors, including the negotiators faith in his own problem-solving ability, thinking in positive-sum, rather than constant sum, terms, and the other negotiators perceived readiness for problem solving.)
SETTLEM ENT
56
The Restatement of the Law Governing Lawyers requires that lawyers exercise the competence and diligence normally exercised by lawyers in similar circumstances. R ESTATEM EN T O F TH E LAW G OVERN IN G L AW Y ERS 52 (O FFICIAL D RAFT 2000) (hereinafter R ESTATEM EN T ). The American Bar Associations Model Rules of Professional Conduct have a similar requirement: A lawyer shall provide competent representation to a client. M O D EL R U LES O F P RO F L C O N D U CT R. 1.1. (hereinafter M O D EL R ULES ). The Preamble to the Model Rules notes that [a]s an advocate, a lawyer zealously asserts the clients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirement of honest dealings with others.
57
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positional approaches to adopt the different framework used by the mediator.58 It is easy to understand why distributive negotiation using positional methods seems to embody diligence and loyalty. The Distributive framework is the only one of the four that
plainly sets the interests of the client against those of the other parties and will unhesitatingly sacrifice the interests of others for the sake of the client. All of the others appear to consider the interests, concerns and perspectives of the other parties in the conflict. A Value creating
framework depends on finding terms of agreement that increase value for the other parties as well, or at least do not damage their interests. A Relationship framework necessarily attends to the other parties in the conflict, since repairing or improving a relationship requires the participation and commitment of all the parties. An Understanding framework entails mutual perspective taking, since it aims in part to have the client understand more fully the perspectives of the other parties, and develop insight into how the others might see the situation. As between the Distributive and the Value creating frameworks, there should be no general ethical need to choose the Distributive one. The ethical obligation that supports working in the Distributive framework equally justifies working in a Value creating one. That is because
The literal language of the Restatement and the Model Rules, is somewhat ambiguous on the question whether lawyers are limited to using a distributive approach to mediation. The Restatement speaks of competence and diligence normally exercised, suggesting that lawyers are held to act as most other lawyers would. If most lawyers limit themselves to a distributive framework, as I think is the factual case, perhaps lawyers who move to a different framework would be flirting with incompetence. The Comments to Section 52 of the Restatement, however, pulls the sting from such an interpretation by noting that competence does not require a lawyer, in a situation involving the exercise of professional judgment, to employ the same means or select the same options as would other competent lawyers in the many situations in which competent lawyers reasonably exercise professional judgment in different ways. R ESTATEM EN T , supra note 57, Sec. 52 Comment b. The term used by the Model Rules, competent, seems even less tied to the empirical question of what lawyers normally do, and instead is mostly normative. The Preamble distinguishes between advocacy and negotiation. The standard for advocacy seems limited to a distributive kind of approach, calling for the lawyer to zealously assert the clients position, (emphasis supplied). M O D EL R U LES , supra note __. But the standard for negotiation only requires the lawyer to seek a result that is advantageous to the client, suggesting that advantage to the client might mean something different from position. Of course, the term position has two somewhat different meanings in the context of lawyers work. In adjudication, it means a legally articulated claim of right or defense against a claim. In negotiation, however, it means specific terms or demands to which someone seeks agreement from the other party. The dual uses of the word make it easier to think that lawyers should take settlement positions in negotiation just as they take legal positions in adjudication. That in turn makes it easier to think that lawyers representing clients in mediation should focus on positions, using a distributive framework, as part of their appropriate functions. As indicated in the text of this article, I do not think that the Model Rules require such a limited transition from adjudication to negotiation/mediation.
58
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the Value creating approach to negotiation is aimed at increasing the tangible, primarily economic return to the client. It asks the client to sacrifice no tangible value, only to craft different ways to satisfy interests. A party that engages in value creating negotiations does so in the hope that the newly developed terms of agreement will satisfy his needs more fully than purely distributive negotiation might. And by seeking an agreement that does not require the other party to sacrifice its interests, the chances of reaching an agreement are enhanced. Of course, there are risks in using a Value creating framework. It requires disclosure of both sides underlying needs, and thus creates risks that the other side will be less candid than is appropriate, and will take advantage of the first sides disclosures to seize more value in a positional manner.59 But this risk does not mean that lawyers need to avoid value creating negotiation. It only means that they must negotiate in a skilled manner, using methods that will optimize the chances that they can develop mutual gain without suffering avoidable loss. The Relationship and Understanding frameworks, however, might be seen to present a greater challenge to a lawyers ethical obligations to a client. While improving a relationship, or achieving a greater understanding of self or other, might be of value to a client, they do not provide the kind of immediate economic or other tangible value that distributive or value creating negotiation can deliver. Restricted to their legal dimensions, legal disputes are about transferring money or other tangible things, or about providing greater freedom of, or limitations on, actions. They do not, and cannot, compel better interpersonal relationships or understanding. But the principles of agency and the ethical obligations of lawyers do not limit lawyers to obtaining tangible benefits for clients. The Rules of Professional Conduct, for instance,
explicitly permit lawyers to consult with clients about the ethical and moral dimensions of their
59 This is the Negotiators Dilemma. T H E M AN AGER AS N EGO TIATO R , supra note13, at 30. (The central, inescapable tension between cooperative moves to create value jointly and comopetitive moves to gain individual advantage); See also B EY O ND W IN N IN G , supra note 6, at 27. (The tension in creat[ing] value while minimizing the risks of exploitation in the distributive aspects of negotiation . . . cannot be resolved. It can only be managed.) (emphasis in original; footnote omitted.)
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choices.60 There is a strong tradition of concern for the clients personhood in legal ethics.61 So long as the lawyers concern does not interfere with protection of the clients legal rights or opportunities, concern for the other things the client may value, such as relationships or understanding, is ethically permissible. There is nothing in the latter three frameworks that necessarily sacrifices a clients legal rights or opportunities. A client who wishes to improve or repair a relationship, and sees an
opportunity to do so in the mediation, may decide not to seek full vindication of her legal rights. Perhaps the effort necessary for full legal vindication would interfere with the work required to deal with the relationship. But even if it did not, vindication of legal rights may come to seem less important once the relationship issues, which have been troubling to the client, have been addressed. A client who understands the other more fully, or who changes her narrative of herself and the situation, might gain sufficient perspective to realize that the story she has been telling of her legal rights is not fully correct.62 Neither of these approaches cuts off the assertion of legal right. Both leave open the possibility keeping legal rights as part of the discussion, and part of the resolution, though not the primary or sole part. And both permit returning to claims of legal rights and distributive bargaining if the alternative framework does not result in a satisfactory way of dealing with the conflict. Someone working in a Value creating framework should not pick the fruit of the value creating work unless it is better for them than what they could obtain from alternative courses of action, whether that is distributive negotiation, adjudication, or something else. Similarly, the Relationship and Understanding frameworks do not burn bridges or deprive a party of the choice to reject the ideas that come form such
In rendering advice, a lawyer may refer not only to law but to other consdierations such as moral, economic, social and political factors, that may be relevant to the clients situation. R. 2.1, M O D EL R U LES , supra note __.
61
60
See W arren Lehman, In Pursuit of a Clients Interest, 77 M ICH . L. R EV . 1078 (1979).
62 Talk of legal rights can be like talk of good and evil: the claimed legal rights are wholly justified, and the opposition to the claim is wholly unjustified and without any merit, no more than a blatant claim of narrow self interest. The Understanding framework, however, vigorously avoids such dichotomous thinking. Under that approach, all the participants in the conflict may have some responsibility for the beginning or the continuation of the conflict, and neither may be exclusively to blame.
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processes. The worst dangers are those similar to the Negotiators Dilemma: whether the disclosures required for the effective use of the framework can be opportunistically used by the other side for their unilateral distributive advantage. For instance, if a party acknowledges that she has some responsibility for what went wrong, the other might try to use that acknowledgment to lower the speakers confidence in a victory at trial and thus drive a harder distributive bargain. But, with good legal advice, the speaker should be able to distinguish some moral responsibility from legal risk. People may come to understand better how their thought and action contributed to the problem without changing their mind at all about their lack of legal responsibility. As with the Negotiators dilemma, the task is to manage the tension between the disclosures that are part of the chosen framework and the other sides opportunity to use those disclosures for unilateral advantage. I have not found any ethical opinions or malpractice decisions holding that actions taken in a Value creating, Relationship or Understanding framework are ethically impermissible or grounds for professional liability. The closest ethical analysis I have found revolves around the Collaborative Law movement. That is a growing practice in which lawyers structure
negotiations about a legal problem to avoid the adversariness that can prolong disputes and produce less than optimum resolutions. The lawyers and their clients agree to focus on the parties underlying interests and to meet together in an effort to develop mutually agreeable and mutually beneficial terms of agreement. The key feature of the practice is a written commitment by the lawyers to withdraw from representation if their work fails to produce an agreement and the parties proceed to litigation.63 This commitment appears to be an effective way to deal with the Negotiators Dilemma. It reduces but does not eliminate the risk that the opposing lawyer
will seize the disclosed information for unilateral trial advantage, since that lawyer has committed herself not to try the case. The formal reciprocity of agreeing not to continue
63 See Christopher M . Fairman, A Proposed Model Rule for Collaborative Law , 21 O H IO S T . J. O N D ISP . R ESO L. 73 (2005); John Lande, Principles for Policymaking about Collaborative Law and Other Adr Processes , 22 O H IO S T . J. O N D ISP . R ESO L. 619 (2007); Scott R. Peppet., The Ethics of Collaborative Law , 2008 J. D ISP . R ES .131 and Sherri Goren Slovin, The Basics of Collaborative Family Law: A Divorce Paradigm Shift, 18 A M ER . J. O F F AM ILY L AW 74 (Summer 2004), available at http://www.mediate.com/pfriendly.cfm?id=1684.
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representation through trial may also have some moral force in creating a feeling of safety and eliciting more candid disclosures. The ethical critique of Collaborative Law holds that the practice places lawyers in conflict with their clients. By committing themselves to withdraw if the matter is not voluntarily resolved but goes to litigation, the lawyers seem to be disadvantaging their clients in order to satisfy a promise they made to their clients adversary. This tension has the same structure as the tension between a Distributive framework and the others. The kind of candor and disclosure necessary for effective use of a Value creating framework creates a risk that a Distributive adversary will take unilateral advantage of the disclosure to the detriment of the disclosing party. Thus, the ethical critique of Collaborative Law suggests that lawyers cannot manage the Negotiators Dilemma. They must avoid it by grasping its more distributive, adversarial horn. Similarly, a lawyer operating in a Relationship framework, who works to satisfy a clients interest in a repaired or better relationship, may thereby downplay the hostile steps that seem necessary to obtain the maximum tangible benefits under a Distributive framework. If the practice of Collaborative Law violates a lawyers ethical obligation to her client, perhaps Value creating, Relationship and Understanding frameworks do so as well. One state ethics body has determined that Collaborative Law violates that states Rules of Professional Conduct.64 The promises made in Collaborative Law are said to unduly serve the interests of the others in the negotiation, to the detriment of the lawyers client. And the conflict is not waivable, even with sufficient disclosure to the client.65 But this is a minority position. The Standing Committee on Ethics and Professional Responsibility of the American Bar Association, and the relevant ethics bodies of several other states, have determined that Collaborative Law does not create an unwaivable conflict.66 Provided that there is sufficient
Colorado Bar Assn Eth. Op. 115 (Feb. 24, 2007), Ethical Considerations in the Collaborative and Cooperative Law Contexts, available at http://www.cobar.org/group/display.cfm?GenID=10159&EntityID=ceth,
65 64
Id .
66 American Bar Association, Standing Committee on Ethics and Professional Responsibility, Formal Opinion 07-447 Ethical Considerations in Collaborative Law Practice August 9, 2007. States permitting the practice include Kentucky: Kentucky Bar Assn Op. E-425 (June 2005), Participation in the Collaborative Law Process, available at http://www.kybar.org/documents/ethics_opinions/kba_e-425.pdf; New Jersey: New Jersey
37
disclosure to the client, and the client makes a voluntary choice to participate in the process, the lawyer will not have violated her ethical responsibilities by engaging in a Collaborative Law process. The Value creating, Relationship and Understanding frameworks present a less pointed tension than Collaborative Law, but perhaps one that is more difficult to dismiss. The
Collaborative Law problem arises from the lawyers specific act of committing himself to withdraw from representation if litigation ensues. It is that commitment that seems to sacrifice loyalty to the client for the apparent sake of the others in the dispute. The Value creating, Relationship and Understanding frameworks do not require any such specific commitment or turning point. Instead, they are all more fluid and malleable. A lawyer is free at any time to take actions that are more consistent with a Distributive framework than with one of the questionable ones. As discussed below in the context of how lawyers are to implement the various
frameworks, it may not be easy to tell if specific actions or statements fall within one framework or another.67 Thus, it would be difficult to pin down a specific act of a lawyer that would raise ethical concerns in the same way as the formal commitment to withdraw. Obtaining client consent is the most ethically satisfactory way to deal with the ethical challenges of Collaborative Lawyering and also of using the alternative fraemworks. But just as the fluid nature of the alternative frameworks makes it more difficult to identify when an ethically noteworthy action has been taken, that fluidity makes it more difficult to cartuclate
Adv. Comm. on Profl Eth. Op. 699 (Dec.12, 2005), Collaborative Law, available at http://lawlibrary.rutgers.edu/ethicsdecisions/acpe/acp699_1.html; see also Lerner v. Laufer, 819 A.2d 471, 482 (N.J. Super. Ct. App. Div.), certif. denied , 827 A.2d 290 (N.J. 2003) (rejecting a legal malpractice claim against a lawyer who, after disclosure to the client, did not pursue discovery while giving advice about a divorce settlement agreement that had been developed in mediation); North Carolina: North Carolina State Bar Assn 2002 Formal Eth. Op. 1 (Apr. 19, 2002), Participation in Collaborative Resolution Process Requiring Lawyer to Agree to Limit Future Court Representation, available at http://www.ncbar.com/ethics/ethics.asp?page=2&from=4/2002&to=4/2002; and Pennsylvania: Pennsylvania Bar Assn Comm. on Legal Eth. & Profl Resp. Inf. Op. 2004-24 (May 11, 2004), available at http://www.collaborativelaw.us/articles/Ethics_Opinion_Penn_CL_2004.pdf. Several states have special rules for collaborative law practice. See, e.g ., CAL. FAM 2013 (West 2007); N.C. GEN. STAT. 50-70 to 50-79 (2006); TEX. FAM. CODE ANN. 6.603 & 153.0072 (Vernon 2005).
67
See Part VI infra.
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what might constitute adequate client consent. Rather than identifying a precise act or precise moment when consent is required, and must either given or withheld, as with the Collaborative Law pledge, the consent entailed in the alternative frameworks can only effectively arise from ongoing communication between lawyer and client. For instance, a lawyer working in a
Relationship framework could use a series of questions and statements to keep the relationship idea in the forefront with the client. In the third incident described at the beginning of this article,68 for instance, the parties were likely to have some kind of ongoing relationship through their religious activities and childrens athletics. If they were to work out substitute payment terms, or change their business relationship to give the lender more security about repayment, they would also face a continuing business relationship. A lawyer could use statements and questions such as: If we work out a refinancing agreement, youre going to have to be sufficiently confident that they will do what they are saying they will do. What would you need from them to do this? Would you want to have some kind of regular communication to see how things are going and to raise problems and slippage? Would you feel comfortable
talking to them about these things? If you have some concern, what could they do to make you feel more comfortable raising such matters? If your children will be engaged in common sports activities, how will you deal with him? What effect would that have on your business relationship? Returning to these kinds of statements and questions as the matter proceeds would allow the client to consent to the lawyers direction, or to seek a change. A client who only wants a one-time payment as a way to be done with the matter could reject the lawyers inquiries and direct the lawyer to obtaining the best distributive outcome. But a client who is attracted to this view of the future would allow, or even encourage, the lawyer to continue. If consent is a matter of ongoing dialogue between lawyer and client, we face some challenging questions about the amount of influence a lawyer can properly exert. I will take these issues up in the next section, considering whether a lawyer should move into a Value creating, or a Relationship, or an Understanding framework, even if the client is unaware of such options, has no idea what they mean, and might even be hoping that the lawyer will act only as
68
See text at note 16, supra.
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the vindicator of her legal rights. Legal ethics also require that a lawyer act competently.69 It might be argued that a lawyer should not try to implement any framework other than a Distributive one because most lawyers cannot capably work in any of the other frameworks. The lawyer in the fourth scene that started this article may have objected to the participation of the supervisor as group therapy because he felt he was not competent to work with the expressions of feeling, or the search for improved mutual understanding, that the mediator seemed to be seeking. Lawyers have no particular training in the kind of economic creativity that is needed for the Value creating framework or in other kinds of creative thinking. Nor are they required to train in the arts of understanding and guiding relationships, or of understanding peoples narratives about themselves or explanations about others. But lack of training does not make lawyers incompetent in the ethical sense. Lawyers undertake many important tasks for which they do not need, and may not have had, specific training. Trying cases and negotiating settlements and transactions are just two examples of skills that lawyers use without systematic training. To be sure, good lawyers should develop their skills in such matters by paying attention to what they and others do, by reading, and by some kind of continuing professional education.70 But lack of such activity does not make their work ethically dubious. Similarly, lawyers should exercise ethical judgment by not falsely representing to their clients what they are capable of doing. They should decline work that they reasonably think is beyond their economic capacity or substantive or procedural knowledge, or they should associate themselves with someone who has the critical experience or resources they think they lack.71 Those are case-by-case judgments, not blanket exclusions based on a lack of training. If anything, the mediation frameworks we have been considering are less ethically problematic, from a competency standpoint, than many other things a lawyer might be tempted
69
R. 1.1, M O D EL R U LES , supra note 57. Id. Comment 6. Id. Comment 1.
70
71
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to do. Most importantly, the frameworks are part of ordinary thinking. It is part of life, not a specialized skill, to be concerned with how people are relating to each other, and how they might relate better. Similarly, gaining more perspective over how others think, act, or feel is an ongoing challenge for all of us. The kind of creativity that can invent options for mutual gain is a benefit wherever in life it is found. To bring these kinds of frameworks to bear in a mediation primarily requires that lawyers do as lawyers what they can do as ordinary, nonprofessional people. They may not do these things particularly well in their nonprofessional lives. We could all do much to improve. But that does not make their attempts unethical from a legal point of view.
V. SHOULD LAWYERS THINK LIKE MEDIATORS? Whether a lawyer should adopt one of the mental frameworks other than Distributive may be a more difficult question than whether a lawyer has the mental wherewithal or the ethical permission to do so. I am assuming that a lawyer has some power to choose in the matter. But having the power to choose does not mean there is any kind of obligation to do so. Take, for example, the lawyer for the businessman who thought he had bought the property in the second scenario at the beginning of this article.72 That lawyer had the opportunity to permit her client to disclose her plans for the property. Disclosure could reduce her clients bargaining leverage in a distributive bargaining framework. But for someone operating in a Value creating framework, disclosure of such an underlying interest would be understood to create an opportunity to develop new terms of agreement that would be more beneficial to both than the legal claims and negotiating positions that the parties had so far been able to express. On what basis should she choose? One standard would be personal preference. If a lawyer has a taste to invent options for mutual gain,73 she would be free to do so. If she prefers the dramatic confrontations and game playing of a Distributive framework, however, she would be equally free to block disclosure and
72
See text at note 12, supra. G ETTIN G TO YES, supra note 14, at 57.
73
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carry on the fight for positional advantage. For me, a lawyers personal preference is not an adequate justification for such a choice. Rather, lawyers should make the choice based on professional judgment and professional discretion. This puts me in the camp of those who view legal ethics as something other than an exercise of drawing lines with rules, something more than merely prohibiting action that falls on the wrong side of a rule, while giving lawyers complete license to act as they would on the safe side of the rule. Instead, legal ethics requires the exercise of professional judgment and A lawyers discretion about choosing frameworks would be bounded, guided discretion.74
guided by such things as her view of her clients best interests, her experience and facility with various frameworks, her clients preferences about them, her sense of the degree to which the conflict lends itself to the different frameworks, and her sense of the amenability of the other participants to engage in the kind of interchange that is necessary for each of the frameworks. It might seem strange to speak about exercising discretion and choice in matters of cognitive frameworks for dispute resolution. I have described frameworks as a kind of tacit knowledge, a group of perceptions and actions that make coherent sense to the actor without much articulated self-knowledge or even deliberate choice. Frameworks can seem more like what someone finds herself doing, rather than what someone intentionally chooses to do. Furthermore, frameworks can seem robust and persistent. Mediators who inhabit a particular framework may think of the framework as setting the path they will follow, and they will try to do so consistently and at length. But frameworks need not be exclusive or persistent in this way. A participant in a mediation may flip between frameworks, much as people talking about a troublesome matter may swiftly shift back and forth between the four different modes of talk described by Tilly.75 At each moment in a mediation, frameworks help us decide or perhaps make us decide what to do or say next. Each subsequent statement or action seems more appropriate or less appropriate
See W ILLIAM H. S IM O N , T H E PRACTICE O F J U STICE (1998); Bruce A. Green & Fred C. Zacharias, Permissive Rules of Professional Conduct, 91 M IN N . L. R EV . 265 (2006).
75
74
See W H Y ?, supra note 47, at 22.
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depending on the framework through which we are understanding it. A shift in framework even an unconscious one may lead us in a different direction, as new topics now seem relevant and fruitful. In Part VI, infra, I discuss how different subject matters of mediation talk are pertinent to different frameworks, and how the subject matters both indicate which framework we might be in, and how we might move the mediation discussion along the lines of a different framework. Similarly, the frameworks can operate in both the conscious and unconscious realms of our thinking. The things we say and the actions we take might often seem right to us because they are consistent with a tacit framework we are using, without our exercising any conscious thought about our choices. But we can also be aware of choices we have about speaking and acting. We can consciously choose our next words or actions because we think they are
appropriate in light of a framework we understand and wish to pursue. Experts who reflect on their actions and try to improve their professional behavior in light of their understanding are often consciously using their understanding of good professional work to guide their actions. Such control may moderate the degree to which someone flips between frameworks, but it also provides a mechanism for conscious choice. Given that a lawyer has some ability to exercise discretion about the cognitive frameworks of mediation, we need to consider why that discretion should be used in the direction of the alternative frameworks, rather than remaining in a Distributive framework that is most familiar to the legal world. The strong argument for moving beyond the Distributive framework arises from loyalty to clients and clients interests. To the extent a clients interests and goals range beyond what the Distributive framework for mediation can provide, a lawyer serves those interests and goals by adopting methods more suited to meeting the clients needs. It should come as no surprise that, from a clients perspective, conflicts involve more than legal rights and legal obligations. In surveying clients and lawyers in medical malpractice disputes, for instance, Tamara Relis found that clients were interested in much besides financial compensation.76 Among other
Tamara Relis, It's Not about the Money!: a Theory on Misconceptions of Plaintiffs' Litigation Aims , 68 U. P ITT . L. R EV . 701 (2007).
76
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things, they wanted an understanding of why things went wrong, and they wanted some kind of assurance that medical providers would not repeat the mistakes that led to bad outcomes. From their perspective, the disputes were not just about the money. Value creating, Relationship and Understanding frameworks all provide mechanisms better able to satisfy those goals than distributive bargaining can. The latter three frameworks also provide mechanisms for dealing with the kinds of dilemmas poignantly noted by Warren Lehman, in which a lawyers legal advice leads a client away from extra-legal satisfactions the client desires.77 While mediation frameworks are limited to conflict situations and are thus not available for many situations involving tensions between legal structures and client wishes, they provide a fuller opportunity for lawyers to align their work to the satisfaction of a clients interest than the Distributive framework can. Similarly, in some instances the alternative frameworks can reduce the need for lawyers to redirect the clients away from what the clients want. Consider the account of lawyer-client interactions given by Austin Sarat and William L.F. Felstiner.78 Drawing on recorded
conversations between lawyers and their clients in divorce cases, they show how clients express goals, such as correction of the wrongs their spouse has inflicted on them and returning pain for pain, that the lawyer knows are generally not achievable in legal proceedings. Part of the lawyers job becomes directing the client away from those goals.79 The alternative mediation
Lehman, supra note 61 at 1088 - 90. One situation involved a couple who wished to give a gift to a valued friend, but who deferred the gift on their lawyers advice because a later gift would have produced a lower tax liability. The couple were killed in an accident before they could make the gift, so it became impossible. Another involved whether a recovering alcoholic should defer the sale of her house for a time to escape capital gains tax, even when the burden of the house seemed to be interfering with her recovery from alcoholism. In both, Lehman argues, the problem arose from lawyers thinking in instrumental ways how can they engineer the best financial outcome for the client without entering into a dialogue with the client about what is important for the client, and how include those values showing appreciation and returning good deeds with a gift, moving beyond a destructive situation in making a law-related decision. As with Relationship and Understanding frameworks, the means to good judgment and good decisions lies in attentiveness to, and dialogue about, the clients concerns, considered broadly and holistically.
78 77
M EANIN G IN
79
THE
A U STIN S ARAT & W ILLIAM L.F. F ELSTIN ER , D IVO RCE L AW YERS AND L EGAL P RO CESS (1995).
THEIR
C LIENTS : P O W ER AN D
Id. at 53 (Defining and identifying realistic goals, and orienting and reconciling clients to the world of the legally possible, occur during complex negotiations of meaning in which struggle, if not overt conflict, is frequent.)
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frameworks may provide a broader range of techniques than the adversarial litigation and distributive compromise most obviously available to Felstiners and Sarats lawyers. Some interpersonal wrongs that the law will not correct may be addressed in a Relationship or Understanding framework. A lawyer looking forward to a mediation using a Relationship or Understanding framework might speak differently with a client than Felstiners and Sarats lawyers, emphasizing some possibilities of process or outcome that Felstiners and Sarats lawyers could not. The foregoing arguments in favor of using the alternative frameworks are a form of client-centeredness. That approach to lawyers work emphasizes that lawyers should not presume to know what their clients want, and suggests a variety of techniques for listening to clients to aid lawyers in developing a fuller understanding of their clients goals.80 In describing client goals, the client-centered model tends to focus on tangible things, even if such things are not limited to the assertion of legal claims.81 It may be more congenial to the Value creating framework, which looks to increase a clients tangible benefits by finding new structures for agreements, than to the Relationship or Understanding frameworks.82 But the fundamental precept of client-centeredness attending to a clients true goals provides a key reason to operate in a Relationship or Understanding framework as well. The client goals embodied in Relationship and Understanding frameworks can be just as important for clients as the more tangible ones emphasized by the client-centeredness approach. Client-centeredness should lead lawyers into the alternative frameworks just as fully as it should lead them into interviewing and counseling techniques that bring a clients goals more fully to the surface. The should question becomes more difficult when the alternative frameworks are not simply mechanisms to try to satisfy the clients expressed goals. If a client comes to a lawyer
80
D AVID A. B IN D ER , ET AL., L AW Y ERS AS C OU NSELORS : A C LIEN T -C EN TERED A PPRO ACH (2d Ed.
2004).
81 E.g., Id. at 273-74. (In a negotiation, the landlord client not the lawyer should decide whether to push for a maintenance cost-sharing provision in a shopping center lease at the risk of a breakdown in negotiations, or drop the demand and risk creating a perception that the landlord is too eager to concede.)
But see id. at 283 (suggesting that a lawyer consult with a client about the kind of business relations the client wants to have in the future with an opposing party.)
82
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seeking only the biggest possible monetary recovery (or, for a defendant, the smallest possible payment), should the lawyer take the client at her word? Should the lawyer ignore any
alternative methods that would deal with other concerns that the client may or may not have, but which the client has not expressed? The Value-creating framework can easily be justified as a means to achieve the clients expressed goals. Its aim is to find terms of agreement that gives the client more tangible benefit than a distributive negotiation might, or at least to minimize the risk of stalemate that distributive negotiation carries. The client may not perceive this benefit of the Value-creating framework. It is difficult for even experienced negotiators to find mutually beneficial value in negotiation situaitons.83 But even if the client does not appreciate the value of the framework as a means to her ends, the lawyer has ethical discretion to select means that seem best designed to satisfy the clients ends. The Rules of Professional Conduct, for instance, distinguish between goals, which lie within the clients control, and means, which are left to the lawyer.84 While the Rules ask a lawyer to consult with a client about means, they do not require the lawyer to use the means that the client prefers. The choice between a Distributive framework and a Value-creating one is similar to the choice of how to conduct a cross examination. A client might badly want her lawyer to use cross examination to show the world how shameful and deserving of scorn the witness is. But, keeping her eye on what would best persuade the jury, the lawyer may want to use the cross examination only to bolster her theory of the case. That may require using cross examination only to highlight certain facts, or only to show improbabilities or inconsistencies in the other sides case, all of which might be undermined by too aggressive an attack, particularly one not focused on the facts that are critical to the clients story.85 It seems to me that a lawyer is
83
T H O M PSO N , supra note 11.
M O D EL R U LES , supra note 57, R U LE 1.2( A ) (lawyer to abide by clients decision regarding objectives of the representation, but consult about the means; lawyer implicitly authorized to take actions to carry out the representation.)
85 T HO M AS M AU ET , T RIAL T ECH N IQ U ES (7 th Ed., 2007); A LBERT F. M OO RE , ET AL., I N FERENC ES , A RGU M EN TS AN D T RIAL T ECH N IQ U ES (1996) (emphasizing that litigators must develop a theory of the case, a narrative story of the facts that persuasively satisfies or negates the elements needed to establish legal liability, and must conduct cross examination in such a way that it supports the theory of the case.)
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as obligated to use a Value-creating framework for the benefit of the client as he is to use cross examination to build the case, rather than simply to tar the witness. The Relationship and Understanding frameworks are less amenable to the goals-means division of responsibility. Relationship and Understanding aim to give the client something he does not have in the midst of his conflict, either a better relationship or more awareness and control of his situation. But these might not be what he is seeking. Even if he does not articulate them as a goal, should his lawyer strive to achieve them? Many clients would probably not even think of such things as meaningful goals in the context of seeking legal help. Should their lawyers adopt means the alternative mediation frameworks that would increase the likelihood of achieving such goals? The strong argument for lawyers taking those paths, even in the face of their clients unawareness, is as follows: Legal disputes often grow out of conflict with larger dimensions. The parties may be trying to reshape or end a family or business relationship. The
circumstances that seemed favorable when people entered into a contract or an employment relationship have changed, or they find that they have different understandings of what they should expect from each other. The hurt, both physical and emotional, that accompanies an accident may be intensified by the need to ascribe or avoid blame, and find some kind of meaning in the bad events. The parties may end up with lawyers because they cannot satisfactorily deal with the issues on their own.86 But framing the dispute in terms of legal claims and defenses does not erase the other aspects of the conflict. They remain real for the parties, even if they cannot be addressed in any legally relevant way. The alternative
frameworks provide an opportunity for the parties to deal with them again. These are the working assumptions of mediators who operate in these frameworks. They would also be the assumptions for lawyers who participate in the alternative frameworks. The lawyers stance towards their clients thus becomes somewhat paternalistic. The
86 Steven Hartwell describes legal disputes as sometimes arising from a failure of other informal methods of social interaction to correct disruptions of interpersonal and social order. Steven Hartwell, Humor, Anger, Rules, and Rituals , 13 C LIN . L. R EV . 327 (2006) (describing how people try to deal with disruptions first by humor, then by anger, if humor is inappropriate or does not work, then by invocation of rules, and finally by the use of rituals such as litigation.)
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lawyers see opportunities to address more than the legal issues in the dispute, even if the clients do not see them. The justification for such action lies in lawyers expertise in conflict and dispute resolution. They understand that conflicts live and change over time. New limitations and new possibilities present themselves as the parties interact and their knowledge, understanding, and feelings change.87 Just as they can maneuver in a litigation or in a
transactional negotiation to open up some doors for their clients (and close some doors for the other side), they can expect that the dynamics of mediation could reveal or create good opportunities that were not previously available. Mediators work can raise similar paternalistic concerns. A mediator working in a
Distributive framework would try to influence the parties to get them through the process of taking positions and making concessions more effectively. The positional, distributive way of operating is familiar to many people in dispute situations, so they will likely recognize what the mediator is doing. Indeed, some welcome it, as a way to elicit more concessions from the other side than they have been able to do. A mediator focused on creating value, or dealing with relationships, or increasing understanding, however, may be structuring the mediation with a framework that the parties do not recognize and do not expect. The mediator does so because she thinks it is good for the parties to take advantage of what the alternative framework has to offer.88
87
Moreover, each of the alternative frameworks take the parties on a journey.
If
For a discussion about how the common and familiar desire for revenge can slide into forgiveness over time, see M ICH AEL M C C ULLOU GH , B EY O ND R EVENGE : T H E E VO LU TIO N O F THE F O RGIVENESS I NSTINCT (2008). If such transformations are part of how people deal with conflict and hurt, and because hurt and a desire for revenge often play a role in the conflicts that end up in litigation, then the Relationship and Understanding frameworks can provide a place for the forgiveness instinct to be expressed.
88 The mediators power to take disputants in directions they did not expect or intend to go is highlighted in the development of Leonard Riskins analysis of how mediators interact with the parties. In his earlier formulation, he termed the strongest kind of mediator intervention evaluative, connoting an explicit judgment by the mediator about the merits of the parties claims or the value of the parties courses of action. Mediator Orientations, supra note22. His more recent formulation, however, steps away from the term evaluative and instead uses directive to describe a strong way in which mediators can lead the parties, rather than just responding to what the parties are already thinking or doing. Directiveness is not limited to judgments about the substantive issues in dispute. The mediator can also be quite directive about the procedures of the mediation. Decisionmaking in Mediation, supra note 12. Directiveness shades into a form of paternalism. The mediator seeks to influence the parties to take actions, discuss matters, and make decisions in ways the parties may not have expected and might have no interest in doing on their own, if it were not for the mediators influence.
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successful, the parties will end up at some place they may not have expected to be. In a Valuecreating framework, they will have understood their interests and the interests of the other side more fully, and will have created terms of agreement that were not previously in their contemplation. In a Relationship framework, they may find themselves changing their
communication patterns with each other in unexpected ways, or may find they have different and unexpected views of what each should expect from the other, or may have gone through the experience of giving or accepting an apology. In an Understanding framework, they may come to see the other, and also see themselves, in an unexpected light. The mediator cannot tell them where they will be at the end of the process the mediator does not know. But the mediator trusts that the framework can help them find a place that they find more satisfying than their current conflict or than the compromises that the Distributive framework entails. Mediators may try to ameliorate the paternalistic aspects of these processes by periodically asking the parties about their satisfaction with the process as they proceed. But mediators have broad discretion to decide how much influence they will exert, and how to speak with the parties on an ongoing basis to make sure that the mediators influence is not unduly undermining the parties power of self determination. Party self-determination is a fundamental ethical precept of mediation.89 But that still leaves mediators with a broad range of discretion in how emphatically they seek to influence the parties actions and decisions. As with the law of contracts, party self-determination means that parties are not legally bound by promises they make under duress, or that result from misrepresentation, or that are unconscionable in their substance or in the procedures that created them. Mediators are ethically obligated not to manipulate parties into agreements that have those faults. But beyond that baseline, we rely on a mediators good judgment to balance the need for self-determination with the need to influence the parties to see things and decide things they have been unable to do by themselves. Lawyers can use the same kind of continuing interaction with their clients to preserve their clients autonomy and freedom of choice, while at the same time influencing the mediation
A M ERICAN B AR A SS N , ET AL., M O D EL S TAN D ARD S O F C ON DU CT FOR M EDIATORS , Standard 1A (2005) (A mediator shall conduct a mediation based on the principle of party self-determination.)
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process to take their clients in directions the clients may not have expected to go.90 This is another example of how counseling with a client, and actions on behalf of a client, are interlaced.91 But such counseling does not eliminate the possible paternalism in these
frameworks. Unlike distributive negotiation, in which the expressed negotiation positions are precisely the goals which the negotiator would like to achieve,92 one does not really know what the end results will be of a mediation conducted in a Value-creating, Relationship or Understanding framework until one has arrived there. The end results are to be created through focus on interests, or found through a fuller articulation of a relationship, or a greater understanding of self and other. The dimly foreseen end may or may not coalesce out of the process itself. We can expect that along the way the lawyer could remain more optimistic about the chances of finding a good outcome than the client might be. A lawyer who accedes too quickly to his clients doubts about the process could be depriving the client of a benefit that the client simply does not foresee. appropriate. Unlike neutral mediators, however, lawyers are partisans for their clients. Does this mean that lawyers should be less free than mediators to move the mediation towards methods Thus, a dose of procedural paternalism could well be
As discussed in Part VI, infra, lawyers influence the framework used in a mediation by the kinds of things that are discussed. A lawyer operating in an Understanding framework might try to keep the discussion focused on the different ways in which each side was seeing the other and seeing themselves. She would not be expected to announce that she wanted the mediation to be of the Understanding kind. The frameworks are unstated mental structures that organize the perceptions and the talk. A client might resist discussion about how the other side is seeing the matter, or about different ways in which the client could see his own narrative. The lawyer, using an appropriate degree of paternalism, could resist back, and try to keep the discussion going on subjects that would flesh out the framework. Lawyers cannot unilaterally implement a framework. They need the participation of the others in the conversation. If a client, and the others, all refuse to engage in the conversation required for the framework, the lawyer may have to give up. The sharpest lawyer-client tension would come if all the parties in the room except the client were working more or less in the same framework. Then the lawyer would have to choose between trying to redirect the conversation along the lines that the client preferred, or to continue along the lines that the lawyer and the others preferred.
91 See Donald G. Gifford, The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context, 34 UCLA L. R EV . 811 (1987); see also, L AW YERS AS C OU NSELORS , supra note 79.
90
Even if a negotiator states an ambitious position with the expectation that he will have to make some concessions, the position is still a specific goal that the negotiator would be all to happy to achieve.
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that a client may resist? The question places us squarely in the mixed area between goals and means. Clients have the most authority over choosing goals, and at the extreme have complete power to decide on goals. Lawyers have the most authority over the technical means, and at their extreme have complete power over the means to be used. In the middle, lawyers have authority over means, but they should consult with clients.93 Many decisions that lawyers make implicate both ends and means.94 Does the choice of mediation framework intrude so much on a clients autonomy that the client should retain a substantial ability to control the framework that is used? I dont see how it does. The alternative frameworks may require discussion of matters that the client thinks are private, such as his underlying interests, or feelings, or how he perceives his opponent. But litigation also requires a client to give up his privacy in matters that are legally relevant to the dispute.95 The matters that come up in mediation under the alternative frameworks are relevant to those frameworks. In addition, unlike his situation in litigation, a party in a mediation retains the power to refuse disclosure. However relevant the question, he can simply not disclose information that seems too private. His lawyer, and the mediator, might urge him to do so, but they have no power beyond whatever trust or other interpersonal persuasive force they have earned from the client. Apart from privacy concerns, some disclosures in the alternative frameworks may weaken a partys tactical advantages in distributive negotiation, such as permitting the other side to better infer what the partys bottom line in negotiation really is. Some disclosures may also
93 Rule 1.4 of the Model Rules of Professional Conduct for lawyers requires a lawyer to consult with her client about the means by which the clients objectives are to be accomplished, and about any limitations on the lawyers conduct. M O D E R U LES O F P RO F L C O N D U CT R. 1.4(a)(2) and (a)(5) (2007). Rule 1.2(a) authorizes lawyers to take actions that are impliedly authorized to carry out the representation and to abide by a clients decision to settle a matter. Id. R. 1.2(a).
For instance, a decision whether to submit a dispute to arbitration, as provided by a contract, or to sue in court, challenging the arbitration requirement, is in one respect a choice of means: which forum is most likely to produce the most favorable outcome for the client. But the choice can also be about ends. Court litigation can generate publicity and establish a precedent. Arbitration can preserve privacy. The means have indirect effects for the client that would seem to require some client participation in choosing them. For instance, plaintiffs claiming to have suffered psychological damage must waive patienttherapist privilege and permit their therapists to disclose private information about them.
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require adjustments in a partys litigation strategy, if the dispute is to go to trial.96 Managing the disclosure-concealment tension is an aspect of a lawyers skill, not a reason to avoid the disclosures altogether. Different lawyers will manage the tension differently, all within the range of sound professional judgment. Lawyers operating in a Distributive framework will most likely disclose less, while lawyers operating in an Understanding framework will encourage more disclosure of things that are relevant to increasing mutual understanding. Clients are also protected in mediation by the fact that nobody imposes a resolution on them. They must voluntarily accept any terms that resolve a dispute or change a relationship, and are free to agree to nothing. Retaining this power reduces, although it does not eliminate, the danger that paternalistic lawyers, shaping the mediation in accordance with a framework that the client may not perceive or consciously agree to, will intrude unduly into the clients autonomy. Finally, lawyers can justify their embrace of the alternative frameworks with a different kind of should. My previous arguments have relied on a lawyers obligation to benefit her client. The alternative frameworks can serve a clients interests more fully than the Distributive framework, encompassing client concerns and wants that cannot be squeezed into the framework of legal rights. But a lawyers use of the alternative frameworks also serves a more general societal interest improving the system of justice. The same social reasons that support the use of mediation in all its forms in law-related conflicts would support its use by lawyers in the ways they represent their clients.97
VI. HOW CAN LAWYERS THINK LIKE MEDIATORS?

This risk seems small in light of the broad scope of pretrial discovery. The other side could find out much if not all of the information anyway through interrogatories, depositions, and the production of documents. But the cost and complexity of discovery may allow a party to effectively hide certain facts that might be revealed in the more candid setting of a mediation using one of the alternative frameworks. The social reasons for promoting mediation in the presence of our legal system include obtaining resolutions of disputes more quickly and less expensively than litigation, obtaining resolutions that are more durable and more fully meet the parties needs and concerns than the formal legal process, providing a process that can give the parties more voice than the highly structured and limited procedures of legal disputing, all without necessarily sacrificing fairness or a sense of justice. All of these justifications are controversial, to a greater or lesser degree, but whatever strength they have equally justifies an effort by lawyers to capture the advantages of mediation.
97 96
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The tacit nature of the cognitive frameworks presents a challenge for lawyer seeking to take advantage of them. Because they are tacit, people implement them automatically, without conscious choice or control. People need not even be aware of what they are doing. All they need to know is that some things make sense those that are consistent with the cognitive framework and some things do not. identifying what framework is operating. Moreover, their tacit character makes it difficult for a lawyer, or a mediator, or anyone else to implement a particular framework. Once a framework is in operation, certain things seem appropriate, and others do not. But getting into a framework is more like diving into a pool than like walking, conscious step by conscious step, across a bridge. We can add to this the fact that mediations are interactive processes; what happens cannot depend on the will or action of a single participant, but must be shared to a degree. A particular framework will only work if a sufficient number of the mediation participants have become engaged in it. We may find the markers of different frameworks in many things that occur in a mediation, including what the participants say and how they say it (verbally and nonverbally), how they react to each other, what they feel and how they express what they feel, what their goals are, what they fear and what they hope for, and so on. To have some way to perceive and manage the frameworks, I suggest that we should focus on the first: what the participants say. The subject matter of their talk can provide a vivid indication of the framework in which they operate. In the four scenarios with which I began this article, the disagreement between the lawyers and the mediators was, at its most straightforward level, about what to talk about. Particularly in the last three scenarios, the mediator wanted to talk about things that were appropriate for the mediators framework underlying economic needs and interests, relationship, and reciprocal understanding, respectively but were inappropriate for the distributive, positional framework of the lawyers. Just as the lawyers and the mediators So lawyers, like everyone else, may have trouble
experienced in the scenarios, some subject matters are particularly appropriate for some frameworks but not for others. If subject matters form a kind of marker for the frameworks, as I think they do, then the task of identifying an operating framework can be somewhat simplified. If one pays attention to
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and names the subject matter of the mediation conversation, he or she can have a clue as to the framework in the room. Moreover, the subject matter areas provide a way for a participant, including a lawyer, to influence a move into a framework, or to keep a mediation from jumping into a different framework. If a participant introduces a new subject matter that is a marker for a particular framework, if the others pick up that subject area and continue the discussion in it, the framework may shift to the new one. If others start to introduce a different subject matter, but the participant resists and keeps the discussion going in the preferred subject matter, then the framework may remain the one that the participant seeks. With the pertinent subject matter, the continued conversation will seem appropriate, because the subject matter is congruent with the framework. The frameworks are in part made up of the subjects that are discussed. The subject matters both signal the presence of a framework, and at the same time are part of the creation and maintenance of the framework. I dont think we yet have a systematic, verifiable understanding of how particular subject matters are linked to cognitive frameworks. The seven subject matter areas that I describe below might be best understood as a working hypothesis of the link between key subject matters and cognitive frameworks. I expect they will seem familiar to some mediators, but quite strange to many lawyers. But attention to pertinent subject matters can help lawyers identify the
framework that the other participants may be using, and provide a way for the lawyer to try to direct the conversation to a place where the sought-after framework will blossom. I list seven different categories of mediation talk that are significant to build or inhabit a framework. frameworks. None of these subject areas belongs exclusively to any one of the
As will be seen, various subject areas can work within several different
frameworks. Whether a particular subject area is best understood as part of a specific framework may depend on its context in the discussion, and on the metalanguage such as facial expression, body movement, and emotion that accompanies it. A particular subject area may be necessary but not sufficient to inhabit a framework. The seven distinctive subject matters are: 1. What happened and what it meant. 2. What can or will happen in the future.
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3. Law and legal rights. 4. Fairness and moral rights. 5. Relationship. 6. Feeling. 7. What someone wants, what they can get, and how they can get it.
1.
What happened and what it meant.
This kind of subject is strongly
constitutive of a Distributive framework. In the mediation of legal disputes in that framework, the parties are concerned about historical events. The meaning of the events refers to their legal relevance. In the context of a litigated or potentially litigated matter the alternative to agreement is the anticipated result of adjudication. That is key information for taking positions and making The
concessions, which lie at the heart of the Distributive framework.
participants will use the discussion of what factually happened, and the legal meaning of those events, to clarify their own predictions of the adjudication, and to influence the other participants predictions. They will emphasize the facts and legal meaning that make their case seem stronger, and will wish to conceal the facts and legal meaning that make their case seem weaker. What happened, and what it means, are used in an instrumental way to try to shift the point at which the other party will agree to a preferred settelement. What happened and what it meant can also constitute Understanding talk, but in a quite different way than in a Distributive framework. For Understanding, it is not necessarily important to reach agreement or change the others mind, either explicitly or tacitly,98 about what actually happened. Rather, each sides
In a Distributive negotiation, a party might be persuaded that the other sides account of what happened, or about the governing law, is stronger than previously understood. That change would lead to a change in ones private assessment of when the settle, and a willingness to make more concessions in ones settlement position, but only if necessary. The party negotiating effectively in a Distributive manner would try to conceal any change in his judgment about the facts and law, however, so as to keep hidden from his opponent the possibility of a greater concession.
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perception of what happened is critical to the extent that each comes to understand how things seemed to her counterpart, as well as how things seemed to her. Perception, not truth, is sufficient. In the Understanding framework, that kind of mutual perception is the material with which the parties can start to build a way to deal with their conflict or resolve their dispute.99 The meaning of what happened is not limited to legal relevance. The important meaning is the meaning that each party gives to the past events, for whatever reason, and regardless of its objective validity. What happened and its meaning are not simply instrumental as ways to influence settlement positions, as they are in a Distributive framework. They are intrinsically valuable. Talk about what happened and its meaning might also be indicative of a Relationship framework, but only if the parties talk about what happened in terms of their relationship. For the sake of clarity, talk about relationship should be understood as an independent category, rather than cramming it into the what happened subject matter.100 If the participants are trying to persuade each other of the truth of what happened in the past, and its legal significance, we can guess that they are in a Distributive framework. If they are talking about how they perceived what happened more generally, and if they are talking about how they understand each others perceptions, we can feel more confident that they are in an Understanding framework. If their talk is about aspects of their past
communication and relationship, however, without an overlay of legal significance, or an effort to prove right and wrong, and without an effort to understand each others perceptions, it would be more appropriate to think of their subject matter and perhaps their framework as relationship.
99 Telling about the past is often part of an Understanding framework. See Carrie Menkel-Meadow, Remembrance of Things Past? The Relationship of Past to Future in Pursuing Justice in Mediation , 5 C ARD O ZO J. C O N FLICT R ESO L. 97, 110 (2004). (W ithout a full airing of our past sufferings, we cannot move on.)
100
See text at note 104, infra.
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What happened and its meaning are even less pertinent to a Value creating framework. That tries to focus on revealing present interests of all parties, and constructing terms of agreement that will deliver the greatest satisfaction of the interests of each in the future. The past is of relatively little importance.
2. What can or will happen in the future. As just noted, when the subject matter of mediation talk focuses on what can or will happen in the future, rather than what happened in the past, the participants may well be operating in a Value creating framework. This is particularly true if talk about the future occurs in the context of the parties interests. Talk about the future can also be indicative of a Distributive framework, if the talk is about what will happen to the parties in the absence of an agreement. In a litigated matter, for instance, each side can try to bolster its own commitment to a settlement position, or try to induce the other party to make concessions, by painting a picture of what the court will decide. An important distinguishing
characteristic may be whether talk is about what the future would be like with an agreement, or what the future would be like without one. A future with an agreement is more the province of a Value creating framework, exploring the extra value that might be captured by an agreement.101 The future without an agreement is more pertinent to a Distributive framework, to persuade the other side of the bad things that will happen to them if they do not agree. In a Value creating framework, talk will tend to be about the future that an agreement will bring. Talk about what will happen in the future is less characteristic of Relationship and Understanding frameworks. If anything, attention to the future
101 In his advice to negotiators operating in a Value-creating framework, W illiam Ury, one of the most effective advocates of a Value-creating framework, tells his readers to ask W hat if? W ILLIAM U RY , G ETTING P AST N O 83 (1993) The question helps the parties focus on creative ways to invent mutually beneficial agreements. W hat if is talk about what can or will happen in the future.
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would tend to come at the end of mediations in those frameworks. Once the parties have obtained enough understanding of each other, or have identified the latent conflicts that are distorting their relationship, they might be able to develop plans for the future.102
3. Law and legal rights. Talk about law and legal rights is most pertinent to the Distributive framework, for the same reasons as talk about past events. It is a way a setting the parameters for a distributive negotiation. A mediation
characterized by such talk is most likely operating in a Distributive framework. Similarly, a lawyer who insists on this kind of talk is probably operating in such a framework, and is trying to get the others to operate in it, as well.
4. Fairness and moral rights. In conflict situations, claims of unfairness also fill ones thoughts, and often fill the air. While there may be a substantial overlap between talk about fairness and talk about law, fairness should be considered separately, since ordinary, common-sense notions of fairness need not be limited to what the law requires, and fairness claims may fully express what the parties themselves want, even if their lawyers dont initially see beyond legal claims and dollar remedies. Fairness claims may also have the moral suasion to encourage or to block settlement. All of the frameworks can include talk of fairness and moral rights. Fairness can be used as a sword or a shield in the battle of positions in the Distributive framework. Relationship issues are often entwined with perceptions about fair treatment: Lack of communication, dismissive and high-handed treatment of another, lack of respect, and similar relationship issues are often perceived as forms of unfair treatment. Apologies, also part of a Relationship framework, are primarily about fairness and moral rights. Someone is only owed an apology because the other violated his moral rights or treated
In the Understanding framework, it is essential for the parties to develop their own idea of the future. In all the other frameworks, the mediator or lawyer could do it for them.
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him unfairly. Talk of fairness and moral rights is also critical for the Understanding framework. Increasing understanding of self and other, enhancing empowerment of self and recognition of the other, or changing the narrative that explains the conflict and the people, often entail a shift in ones perception of what is fair and what moral rights require in a situation. Talk of fairness and moral rights probably appears least in a Value-creating framework. That framework sees the problem as primarily distribution of tangible goods, rather than restoration or reparation for some perceived wrong.103
5. Relationship. Talk about the parties relationship is, as the name implies, a distinctive characteristic of a Relationship framework. As noted above,104 the Relationship framework includes a broad variety of relationship issues. Some look to the past, dealing with the ways the parties relationship caused or intensified the conflict. Some are oriented to the present, with regard to how the parties are treating each other now, including their behavior and communication during the mediation. Some focus on the future, as when the participants discuss how the parties will communicate in the future regarding any differences or problems that may arise between them. Talk about relationships can also occur instrumentally in other frameworks. For instance, if the participants in a Value creating framework are developing a deal that will involve them in a continuing relationship, they may pay attention to how they will relate to each other in the future, in order to carry out their mutually beneficial agreement more effectively. In a Relationship
framework, talk about the parties past, present, or future relationship has a more intrinsic value. It is an end it itself, rather than a step to another, more monetary
103 In a Value-creating framework, it is important, perhaps even necessary, that the participants see both the outcome and the process as fair. But it need not be the focus of struggle, or the subject of extended discussion, as it could be in the other frameworks.
104
See supra text accompanying note 102.
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end. In mediation discussion, one should be able to notice whether the parties seem engaged in, and satisfied with, talk about relationship, or whether they explain and justify their talk about relationship by reference to other goals, such as their possible deal.
6. Feeling. Mediation provides a place for the expression of emotions that trials do not.105 We should expect talk about the parties feelings to play a larger role in mediations conducted in the Relationship and Understanding frameworks than in the Distributive or Value-creating ones. Expressing ones own feelings, and perceiving and acknowledging the feelings of the others in the conflict, is an important part of most of the Understanding approaches to mediation. Similarly, bad feelings often accompany hostile or difficult
relationships; talking about the feelings becomes part of the effort to restructure the relationship. When talk is about feelings, we can notice the familiar distinction between intrinsic and instrumental purposes. In Relationship and Understanding
frameworks, descriptions and discussions of feelings can be intrinsically part of the subject matter. In Distributive and Value creating frameworks, however, talk about feelings can be used instrumentally for ends that are pertinent to those frameworks. For instance, anger, fear, and defensiveness can limit someones ability to think clearly about the risks of not making an agreement, or someones willingness to make a concession in a settlement position.106 Similarly, strong feelings can interfere with someones willingness to disclose their underlying interests, which are the key building blocks for a Value creating framework.
105 W hat an injured party felt in the past, or is currently feeling, might be relevant in a case in which emotional distress is an allowable element of damages. The feelings of a witness might also be relevant for assessing the witnesss credibility. In mediation, the expression of feelings isnt limited to relevance to the legal decision at hand.
See Clark Freshman, et al., The Lawyer-Negotiator as Mood Scientist: What We Know and Dont Know about How Mood Relates to Successful Negotiation , 2002 J. D ISP . R ESO L. 1.
106
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Thus, talk about feelings, by itself, will not definitively indicate whether the speaker is operating in an Understanding or Relationship framework. Much will depend on what came before and what comes after. If there has been much discussion about settlement positions, for instance, and the exchange of concessions has ground to a halt, a discussion of feelings might indicate an instrumental use to induce further positional movement. If the discussion returns to positions once the expression of feelings has cleared the air, then feelings have been kept in an instrumental function. But talk about feelings might indicate a turn in direction, into a different framework. For instance, if talk about feelings leads to a more extended discussion about relationship issues associated with the feelings, then perhaps the participants will have entered a Relationship framework. Or if talk about feelings leads the parties to spend time voicing a greater understanding of the perceptions and motivations of each other, then the discussion of feelings may mark a shift from a Distributive framework to an Understanding one.
7. What someone wants, what they can get, and how they can get it.
People
operating in any of the frameworks should find themselves talking about what the parties want, what they can get, and how they can get it. What is wanted, what may be obtained, and what one should do to obtain the desired result, however, vary in the different frameworks. In the Distributive framework they want the other side to accede to their positions, they need to consider what concessions the other side might make, and they can discuss negotiation tactics designed to elicit greater concessions from the other side. In a Value-creating framework, they will be aware of their underlying tangible needs and interests and will seek ways to meet those interests through an agreement with the other parties. Parties working in a Relationship framework want a relationship that works better, or want some kind of reparation for a failure of the relationship in the past, and will need to discuss what should be changed in what the parties expect from each other and
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how they communicate. Like the Value-creating framework, an Understanding framework requires people to understand and express more clearly what they want, and to understand more fully the perspectives of the other parties. Unlike the Value-creating framework, however, in an Understanding framework wants can easily flow beyond tangible wants or the specifics of tangible outcomes.
For me, observing categories of talk in the moment is simpler than the typical way we approach mediation practice. We usually think of learning about and conducting mediation
practice as a form of deductive logic: Theory comes first. We identify and embrace our general goals for mediation, we articulate our concepts about the nature of conflict and its management, we consider our preferred values, and then intentionally apply particular skill sets that we think will allow us to reach our goals. Focusing on the subjects of what is said in mediation, without such elaborate mental work, is altogether less formal and less systematic. The foregoing
categories of subject matters provide distinctive clues to the various tacit frameworks with which mediators and lawyers conduct themselves in mediation. But they do not rigorously chart a path to ones goal. They are more a kind of doorway to the tacit knowledge that is embodied in the frameworks. They invite entry into a more automatic way of thinking and speaking, in which the things perceived and the things said seem appropriate and worth pursuing because they fit within a framework. Recognizing and distinguishing the seven subjects of talk as they occur in mediation does not require years of training. The frameworks are embedded in the thinking of all of us, novice and expert alike. The subjects are instances, or embodiments, of embedded frameworks, and can appear as a natural, unforced phenomenon to anyone willing to observe them. Learning about them does not have to precede the perception of them or the act of using them. observation can be an effective first step. I do not intend to demean expertise. Of course, mediation and negotiation are immensely more rich and complex than simply choosing between subjects to talk about. Carrying out a mediation within any framework, or within none at all, is endlessly challenging. The dynamics ebb and flow, information surfaces or submerges, the participants sometimes work at cross Simple
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purposes and sometimes work together, all at the edge of, or slightly beyond, the control of any one participant. By itself, invoking frameworks, and leading others to act within them simply by trying to lead the discussion into the appropriate subject matter category is rather superficial. However easy it is for a novice to observe and identify the subject matters and invoke a particular framework, an expert practitioner will perceive and understand and perhaps influence the dynamics of the mediation with a power and degree of detail well beyond a less expert participant. Noticing the framework-relevant subject matters of mediation talk, as I am urging lawyers to do, is no substitute for developing expertise in representing parties in mediation. It is only one kind of step. But I think it is a critical one, for without it lawyers will find it difficult to open the door to frameworks other than the Distributive one. Without waiting for some
specialized training or graduation into expertise, by paying attention to the subject matters of talk in mediation lawyers can bring themselves into congruence with mediators, or even influence mediators and the other participants to step into the framework that the lawyers are seeking to activate. Nor is this advice a recipe for lawyer to seize control of mediations to the detriment of mediators. I dont think there is much danger that lawyers will be able to unilaterally bend mediations to their preferred framework simply by observing the subjects of discussion or by trying to move the discussion into preferred subjects. Effective implementation of a framework requires the collaboration of many, if not all, of the participants in the mediation. If only one participant is speaking in terms of subjects characteristic of a framework, and the other participants are not, the mediation as a whole will probably not proceed within that framework.
CONCLUSION Mediation presents substantial opportunities and substantial challenges to lawyers representing clients. The opportunities include speeding up the kind of positional negotiation that lawyers often use for settling their clients cases, finding mutually beneficial settlement terms that increase value for one side without imposing a corresponding loss on the other, repairing and improving tattered relationships, and increasing clients understanding of themselves, their real world situation, and the people with whom they find themselves in conflict. The challenges arise
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because lawyers too often cannot or do not act in mediations in ways that will facilitate these promising alternative means. When lawyers use familiar forms of positional bargaining instead of the alternative cognitive frameworks for mediation, they cut off their clients from the benefits that mediation can provide. Hindering mediation in this way is not necessary. Lawyers can properly do their jobs of representing clients in ways that enhance, rather than challenge, the benefits of mediation. To do so, lawyers could adopt a variety of suggestions that have been offered in the mediation literature. But these suggestions can appear scattershot, and can be difficult to work with in any consistent or useful way. Instead, to align themselves with the work of mediators, lawyers need to embrace the mental frameworks of mediation. Many forms of mediation operate through mental frameworks that are different from the positional negotiation of most legal disputing. Each of the four frameworks I describe
Distributive, Value-creating, Relationship, and Understanding provides a different way of understanding the nature and content of the parties conflict. Each provides a different set of goals and a different repertoire of talk to guide mediation. The Distributive framework conceives of the problem as how to distribute contested resources between the parties, usually through taking settlement positions and making demands and concessions. The Value-creating
framework understands that conflict arises from the parties desire to satisfy their underlying needs and searches for ways to satisfy the needs of each without unnecessarily sacrificing the needs of the other. Usually, this approach emphasizes tangible needs. The Relationship
framework attends to glitches or problems that have arisen in the parties relationship, such as failed communication, difficulties in aligning expectations, and concerns for how the parties can relate in the future. It places less emphasis on identifying and meeting tangible needs, relying on the parties to deal with those concerns once their relationship and communication have become more effective. The Understanding framework aims primarily at enhancing the parties
understanding of themselves and the others in the conflict. It trusts that if parties develop a clearer understanding of what they want, who they are, and how they act, and if they can also develop a clearer understanding of the perspectives and functioning of the other parties to the conflict, the parties themselves will be better able to deal with their conflicts and disputes.
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We might question whether lawyers can adopt such frameworks while they are representing clients in mediation. The frameworks seem substantially different from the ways lawyers think about legal matters. I conclude that lawyers can adopt the frameworks, even though they would be strikingly out of place in a courtroom or other adjudicatory hearing. There is nothing in the legal mind that would prevent lawyers from acting in terms of alternative, mediation-friendly mental frameworks. Adoption of the alternative frameworks also raises concern about legal ethics and loyalty to clients interests. But a careful analysis of the frameworks and lawyers ethical limits shows that lawyers should face no ethical prohibitions on adopting such frameworks. The alternative frameworks often serve a clients interests in a broader fashion than more usual representation, where asserting legal rights and maximizing a clients financial gain tend to dominate and drive out other concerns. The opportunity to provide such benefits for clients creates at least a
moderate ethical obligation on lawyers to expand their repertoire to include such alternatives. This is most clearly true when clients themselves express interest in outcomes that are different from, or in addition to, the remedies that the courts can provide, or remedies that can be achieved by a simple distribution of the available resources. The moderate ethical obligation exists even when clients do not initially articulate or seek such different or broader outcomes. Lawyers, with their experience in observing and managing conflict resolution, can foresee possibilities from the process that clients may not see, justifying lawyers to pursue methods that will open up such possibilities for their clients. It is no simple matter to implement alternative frameworks. As I have described them, the frameworks are not recipes or algorithmic guides, laying out a series of appropriate steps that one can take once one has adopted a general theory. Instead, they tend to operate tacitly, providing those who operate within them with a sense of what reactions, statements, and other mediation moves make the most sense in a particular context and a particular moment. But there is a way for practitioners to uncover what framework is actually operating, or what frameworks are competing, at any given moment in a mediation, even if tacitly. The different frameworks tend to focus on different subject matter areas. By attending to the subject matter categories that the participants are talking about, and not just to the substance of what is being said, lawyers can
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learn what frameworks they and the other participants seem to be using. Seven different subject matter areas can reveal frameworks in operation: i.) What
happened and what it meant; ii.) What can or will happen in the future; iii.) Law and legal rights; iv.) Fairness and moral rights; v.) Relationship; vi.) Feeling; and vii.) What someone wants, what they can get, and how they can get it. While not exclusive to a specific framework, these different subject matters will occur more frequently and more intensively in some frameworks than in others. By attending to how long and in what detail the discussion stays in one of these frameworks, a lawyer can get a sense of whether the others in the room are operating in a particular framework. The subject matters are not only descriptive. By trying to move the conversation into one of these subject areas, or by trying to keep it there, a lawyer, like a mediator, can try to direct the mediation into a framework, or keep it in a framework, that will most benefit her client.

Hyman, Jonathan

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Rutgers School of Law- Newark Legal Studies Research Paper Series Research Paper No.

Jonathan M. Hyman Rutgers School of Law- Newark

Electronic copy available at: http://ssrn.com/abstract=1347057

FOUR WAYS OF LOOKING AT A LAWSUIT

Electronic copy available at: http://ssrn.com/abstract=1347057

FOUR WAYS OF LOOKING AT A LAWSUIT

Electronic copy available at: http://ssrn.com/abstract=1347057

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

J EFFREY K RIVIS , I M PRO VISATIO N AL N EGO TIATIO N (2006).

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

produces a different kind of conflict with a lawyer.

what lawyers can and should do in mediation.

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

purchase the property.

The owners lawyer alleged that any communication

D AVID L AX AN D J AM ES S EBEN IU S , T H E M AN AGER AS N EGOTIATOR 88-116 (1986).

FOUR WAYS OF LOOKING AT A LAWSUIT

R OGER F ISH ER , ET AL., G ETTIN G TO YES 56-80 (2 D E D . 1991).

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FOUR WAYS OF LOOKING AT A LAWSUIT

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situational factors and the expectations of others.

Dealing with the conflict in this fourth

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

See T H E P RO M ISE O F M ED IATIO N , supra note 23.

FOUR WAYS OF LOOKING AT A LAWSUIT

Understanding framework, as exemplified by the Transformative model, is qualitatively different

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

See note 24 supra . See note 23 supra .

FOUR WAYS OF LOOKING AT A LAWSUIT

R OGER F ISHER & D AN IEL S HAPIRO , B EY O ND R EASO N (2007).

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

Apologies, in the fullest sense of the term, involve reconstructing a

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

The doctrines of law articulate the categories,

Leonard Riskin, Mediation and Lawyers, 43 O H IO S T . L. J. 29 (1982).

FOUR WAYS OF LOOKING AT A LAWSUIT

C H ARLES T ILLY , W H Y ? 15 (2006).

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Id. at 96ff. Id at 108-114.

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See W H Y ? supra note 47, at 22.

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FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

See W arren Lehman, In Pursuit of a Clients Interest, 77 M ICH . L. R EV . 1078 (1979).

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

FOUR WAYS OF LOOKING AT A LAWSUIT

See Part VI infra.

FOUR WAYS OF LOOKING AT A LAWSUIT