The New Lawyer

My last posting was about whether the legal profession is heading for extinction. I believe it is not. But it will change, perhaps dramatically, over the next decade. A book by Julie Macfarlane, The New Lawyer, says it all. I agree with Macfarlane’s premise that the practice of law is moving from the simple lawyer as warrior and zealous advocate to a much more subtle and complex role of counselor, negotiator, mediator and meta-expert.

This review of Macfarlane’s book by Andrew Pirie, a Professor of Law at the University of Victoria and founding director of the university's Institute for Dispute Resolution, Pirie describes Macfarlane’s thesis and a recent British Columbia case regarding native land claims that he suggests illustrate the role of the new lawyer. The book, the review and the case are all Canadian. But they illuminate changes that will occur in the U.S., Europe and elsewhere.

The End of Lawyers?

The current economic woes have hit many sectors including lawyers. Many recent observers have suggested that the declining fortunes of lawyers is structural and that demand for traditional legal services will continue to decline fueled by technological changes and out-sourcing. I don’t particularly agree with that, although I do think the market will change and the nature, type and cost of legal services will change.

Here is a link to an article in the always interesting blog, ADR Prof Blog about an essay by Paul F. Kirgis, a professor at St. John’s University School of Law titled “The Knowledge Guild: The Legal Profession in an Age of Technological Change.” In the essay, Professor Kirgis disagrees with those who are predicting the end of lawyers. Interesting stuff. I tend to agree with Professor Kirgis, but I do think the nature of the practice will change. Clients have come to recognize that mediation and other settlement alternatives often make sense. I will post another blog about where I think that change will lead.

Tips For More Effective Mediation

Below is a link to a very interesting article published online by the American Bar Association Dispute Resolution Section by Jeffrey Boykin who often represents clients in mediation. He is a business and transactional litigator in Raleigh. His co-author is Diana Mercer, co-chair of the ABA DRS Practice Development Committee with an ADR practice in Los Angeles.

The article lists 18 tips that they believe help define effective mediators. I agree with the points they make; it is very sensible advice for anyone considering mediation. (You must be an ABA member or have an ABA account to read the article online.)

Focus on Practice: A Client’s Perspective on Effective Mediation:
18 tips for a more effective mediation, from the client’s perspective

Paul Verkuil Confirmed as Chairman of the Administrative Conference of the United States

I have posted before about the reincarnation of the Administrative Conference of the United States (ACUS).

Last November I noted that the President intended to nominate Paul Verkuil as Chairman of ACUS.

On March 3, 2010 the Senate confirmed Mr. Verkuil.

This is good news. ACUS will add some light to the debates about good government and process. Congratulations Paul Verkuil. I wish you and ACUS well.

Chocolate Cake versus Fruit – Why We Get Emotional During “Rational” Negotiations

I recently saw a blog by Andrea K. Schneider, Professor of Law at Marquette posted in ADR Prof in which she relates hearing a very interesting experiment described on National Public Radio.

The experiment, by Stanford University professor Baba Shiv was simple: collect several dozen undergraduates and divide into two groups. Give one group a two-digit number to remember and the other group a seven digit number. Instruct them to walk down the hall. In the hall give each person an option for a snack, either a slice of chocolate cake or a bowl of fruit salad.

As reported by Jonah Lehrer, whose books How We Decide and Proust Was a Neuroscientist I have sitting in my too large pile of books to read, in an article in the Wall Street Journal:

Here's where the results get weird. The students with seven digits to remember were nearly twice as likely to choose the cake as students given two digits. The reason, according to Prof. Shiv, is that those extra numbers took up valuable space in the brain—they were a "cognitive load"—making it that much harder to resist a decadent dessert. In other words, willpower is so weak, and the prefrontal cortex is so overtaxed, that all it takes is five extra bits of information before the brain starts to give in to temptation.

Everybody knows that the bicep has practical limitations: If we ask the muscle to hold too much, it will give out and drop everything on the floor. And just as our muscles get tired after a tough workout, and require a rest to recuperate, so does the poor prefrontal cortex need some time off.

I totally get this – I understand lack of will power.

There is something about this view of the brain that undermines the modern view of the mind as rational and self-controlled; that character, not nature, is why we fail in self control. The research clearly suggests otherwise.

To understand ourselves we must look beyond the rational, which is only a recent and thin overlay in our brain.

I see this in nearly every negotiation I mediate. Strong emotions appear in place of rational discourse, even when rational discourse would be more effective.

We might think of ourselves as rational beings, but the cognitive load in our frontal cortex when we are at the table trying to keep track all of the information and arguments is a lot for our brain to handle. So we become emotional; we have a hard time managing our impulses.

According to Lehrer, “This helps explain why, after a long day at the office, we’re more likely to indulge in a pint of ice cream, or eat one too many slices of leftover pizza.” Our willpower fails in large part “because the brain wasn't built for success.”

Super Bowl Diplomacy

Here is proof that negotiation of difficult issues is now embedded in our culture:

MIAMI—Team officials from the New Orleans Saints and Indianapolis Colts emerged from a tense, 12-hour negotiating session Thursday and told reporters that, while they had yet to reach a settlement…

Saints, Colts Hoping To Resolve Super Bowl Through Diplomacy (The Onion, January 29, 2010.)

ADR and the State of the Union

The federal sector ADR community has pushed the Obama Administration to establish policies and publish an Executive Order (EO) to encourage federal agencies to use more ADR techniques such as face-to-face (f2f) facilitated negotiations, including specifically greater use of negotiated rulemaking (see the Negotiated Rulemaking Act, 5 U.S.C. §§ 561 - 570). Nearly a year into office, it is fair to ask whether these hopes have been met. The short answer is clearly no.

Over the past year, the Administration has focused its efforts on government transparency and public input. This has led to designing electronic means of sending and receiving information to and from the public, largely based on “crowdsourcing,” the concept of applying open-source software development principles to fields outside of software development.

The Administration, on the President’s second day in office, published a Memorandum on Transparency and Open Government instructing the Chief Technology Officer, the Office of Management and Budget (OMB) and the Administrator of General Services to produce an Open Government Directive to implement the principles of transparency, participation and collaboration outlined in the Memorandum.

On December 8, 2009, Peter Orszag, Director of the OMB, issued the Open Government Directive. This set of policies and principles was strongly supported by many people in the collaborative governance and deliberative democracy community and by ADR practitioners. However, while this memo may have been necessary to open government to the public, it is clearly not sufficient to engage stakeholders.

To date, the Administration has produced no memorandum or EO to encourage agency use of ADR techniques and f2f negotiations. During the summer of 2009 supporters of the Administration, agency ADR staff and others met to draft an EO designed to foster greater agency use of ADR techniques and f2f negotiations.

The draft EO, “Participation and Collaboration in Government” was designed to encourage agency policies to provide stakeholders the fullest opportunity permitted by law to engage meaningfully in governance and the policy process, and to provide the Government with the benefits of their collective expertise and information. The draft EO contained a whole litany of activities that agencies were to have undertaken to accomplish the policy of maximum stakeholder involvement in the policy and processes of government.

The Open Government Directive appears similar and in some ways overlaps with the draft EO on Participation and Collaboration in Government. So what is the big deal? Why should there be an EO on “Participation and Collaboration” in Government when the Administration has already published two directives on Transparency, Participation and Collaboration?

The difference is that the policies on Transparency, Participation and Collaboration all address how the government provides and receives information from and to the public and other stakeholders. This concept has been described as crowdsourcing. As described in the December 8, 2009 memorandum from Director Orszag, these crowdsourcing policies include:

• Transparency – provide the public with information;
• Participation – allow members of the public to contribute ideas and expertise to the government; and
• Collaboration – encourage partnerships and cooperation within the federal government, across levels of government (federal, state and local) and between the government and private institutions.

These three policies generally relate to the government providing and receiving information. Only the third principle, Collaboration, addresses collaboration. The Orszag Open Government memo is not specific about how agencies are to improve Collaboration between the government and stakeholders. The “Participation and Collaboration in Government” draft EO contains the specific instructions necessary to require agencies to meet and negotiate – face to face – with stakeholders over policy, programs and issues.

The Open Government Directive and other crowdsourcing practices are useful for such tasks as brainstorming and idea generation, but they do not meet the basic principles of public participation, like inclusion, neutrality and collaboration.
The Administration should issue specific directions to the agencies requiring them to negotiate directly with stakeholders, which the Open Government Directive does not do, not simply to communicate more effectively by using electronic methods of providing and receiving information, which the Open Government Directive does very well.

Here is a link to a very interesting article by Tim Bonnemann in Federal Computer Week about the outer limits of the crowd’s wisdom, and why crowdsourcing and the policies adopted in the Open Government Directive are simply not adequate. Public participation requires different rules –- rules developed over three decades –- by ADR and stakeholder involvement practitioners.

There are significant characteristics in f2f negotiations using ADR techniques that crowdsourcing techniques do not employ:

• The concept of stakeholders sitting at a table representing interests, not simply people; and
• The concepts of negotiation, deliberation and seeking agreements or consensus.

Crowdsourcing and public participation as defined in the Orszag directive do not use these concepts; crowdsourcing is simply designed to gather information and allow people to express their views. They do not incorporate the principles of negotiation where people representing specific interests deliberate, exchange information and attempt to seek agreement.

The Administration has taken a necessary first step by requiring agencies to become more transparent and communicate more effectively with the public. But it has not, at least not yet, taken the necessary second step of requiring agencies to negotiate with the public, thus allowing better integration of multiple viewpoints and interests by inviting representatives of the affected public (stakeholders) to participate in the decision-making. The Obama Administration should promulgate an Executive Order requiring agencies to empower stakeholder participation and collaboration with government.