My last Blog, titled "The Misconception that Collaborative Attorneys Fail to Protect Their Clients" was edited for
publication in the July/August 2011 edition "Analyze This", the San Gabriel Valley Psychological Assocatiation's Newsletter. On the day that the newletter was delivered to my office through the mail I received an email from Manny Burgess, Ph.D, that stated in pertinent part as follows: "Just wanted to say that your article in Analyze This was an important idea to write about. You did a good job. Thanks." When I mentioned this to Suzanne Lake, Psy.D., the editor of the newsletter, she stated, "This is terrific. The general rule is, when one person writes about it, a much greater number THOUGHT about it! I knew it! I suggest you expand more on this topic!"
Thus, I decided that my next Blog would explain why the problem solving skills used by collaboratively trained attorneys are not utilized by attorneys who have not received such training.
When I took the LSAT in 1986, for admission to law school, part of the test involved problem solving. Such a section is still part of the Bar examination and had been part of the examination long before I took the test. "This section is included in LSAT test structure because problem solving is basic to the legal profession."
Once in law school, we are taught to separate emotions from the issues, the law, and to analyze whether or not a particular case or statute applies to a specific set of circumstances. Unfortunately, we are not taught to problem solve. In fact, on May 5, 2010, Larry Kramer, The Dean of Stanford Law School stated, "If you think of traditional legal education as teaching people how to spot problems, how to identify what the problems are, what we never did anything about was teaching them how to solve the problems." (emphasis added) In fact, the American Bar Association suggests the following in preparing for law school: "There are important skills and values, and significant bodies of knowledge that you can acquire prior to law school and that will provide a sound foundation for a legal education. These include analytic and problem-solving skills , critical reading abilities, writing skills, oral communication and listening abilities, general research skills, task organization and management skills, and the values of serving faithfully the interests of others while also promoting justice. If you wish to prepare adequately for a legal education, and for a career in law or for other professional service that involves the use of lawyering skills, you should seek educational, extra-curricular and life experiences that will assist you in developing those attributes." Since those skills are not taught in law school, the American Bar Association states: "Your law school experience will develop and refine those crucial skills, but you must enter law school with a reasonably well developed set of analytic and problem solving abilities." (emphasis added)
"Problem solving negotiation means that the parties can do better than they might otherwise do, especially if they are employing AN UNNECESSARILY UNPRODUCTIVE ADVERSARIAL APPROACH." (emphasis added) The "culture of adversarilism" too often leads to behaviors "with an emphasis on argument, debate, threats, hidden information, deception, lies, persuasion, declarations, and toughness. These behaviors, in turn, often escalate and lead to the most common results of adversarial bargaining -- stalemate or mindless mid-point compromise. Even a 'win' will be a loss if the other side is so beaten down or regretful that it will resist complying with a negotiated agreement.... Effective legal problem solvers must learn to think differently before they can learn to act differently. This is the science and art of negotiation."
IN THE PRACTICE OF LAW (THE LITIGATION SYSTEM), PROBLEM SOLVING HAS BECOME A LOST ART. RATHER, LAWYERS PRACTICE WHAT THEY LEARNED IN LAW SCHOOL, WHICH DOES NOT INCLUDE PROBLEM SOLVING. BY TEACHING LAWYERS TO IDENTIFY PROBLEMS AND NOT TRAINING THEM TO SOLVE THE PROBLEMS, THE PRACTICE OF LAW HAS SHIFTED FROM RESOLVING CONFLICT TO CREATING IT.
In fact, as Larry Kramer said, "good lawyers" "solve problems." The Dean of Stanford Law School's statement that law students be taught to "solve the problems" is considered "revolutionary" because he calls it "Stanford's Law School Revolution." Stanford is not the only law school that has begun teaching students "practical skills that lawyers will need." As mentioned in an article from the July 11, 2011 edition of the Wall Street Journal titled "Law Schools Get Practical", "some law schools are throwing out decades of tradition by replacing textbook courses with classes that teach more practical skills. For example Northwestern Law School now offers a program for first-year and LLM students called "Lawyer as Problem Solver."
The good news is that lawyers who opted to to be trained in mediation and collaborative law were taught such skills. However, please note that mediation is unregulated in most places, including California. Thus, a person can practice mediation even though they never even received any formal training. Yet, collaborative law organizations typically have requirements for membership, which tend to include training in "collaborative divorce, mediation, and conflict resolution." Thus, when selecting professionals from such organizations, a person can be assured that the members have received at least the minimum level of training required for membership.
"A good problem solver 'collaborates' or 'coordinates' with the other side -- testing information he or she already has in order to find out what the parties need and want, learning whether the other side can be trusted to collaborate, and then exercising the creativity that is so seldom taught and learned in lawyering."
If you have an issue regarding family law,
divorce,
child custody,
child support,
spousal support,
restraining orders,
paternity actions, or
domestic partnerships, please contact
Mark B. Baer, Esq.,
a Pasadena Family Law attorney at
Mark B. Baer, Inc. a Professional Law Corporation.