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Conflict Doctors

by John Lande
December 2014

ADR Prof Blog

John Lande

I recently stumbled upon a useful analogy that I used in our required Lawyering course, namely that lawyers are like “conflict doctors.”

For our final class, we read an excerpt of an article by Frank Sander and Stephen Goldberg with tables identifying various client goals and impediments to settlement. The article listed goals related to cost, speed, privacy, maintaining or improving relationships, vindication, getting a neutral opinion, establishing a precedent, and maximizing or minimizing recovery. It identified impediments of poor communication, need to express emotions, different views of the facts or law, important principles, constituent pressure, linkages to other issues, multiple parties, different lawyer-client interests, and expectations of a large judgment or sense that it’s unlikely. Obviously, these are not exhaustive lists, but they provide a good start when thinking about goals and impediments.

I suggested that when analyzing problems as lawyers, students should think of themselves as conflict doctors who identify clients’ real interests (as well as the interests of other parties), diagnose problems preventing clients from satisfying their interests, develop strategies to deal with the identified problems, and then implement the strategies.

Mediators are conflict doctors too. They are specialists who are sometimes engaged by general practitioners (“GP”s aka lawyers) to deal with difficult cases that the GPs can’t handle on their own. Even if the GPs can handle the cases themselves, they may retain specialists because they value the specialists’ skill and knowledge, distinctive procedures (such as caucusing), or legitimacy. Some patients / clients see specialists without a referral from their GPs.

I think that metaphors like conflict doctors can help students really grasp and retain key ideas. One could elaborate this metaphor to talk about the importance of a good bedside manner, listening well to patients, helping them make good informed decisions, etc.

Of course, we should try to avoid teaching the wrong lessons, recognizing that virtually all analogies are imperfect. For example, medical doctors normally don’t deal with other parties who have intentions and strategies that are sometimes adverse to their patients. Lawyers are not just GPs but also specialists in such things as litigation procedures and legal doctrine in particular subject areas. But vivid metaphors can be helpful teaching devices when used with care.

Speaking of metaphors, I LOVE the negotiation cookbook idea that Andrea (and a cast of thousands) developed. I used it in my Negotiation and Family Law Dispute Resolution courses last year. For the last day of class, students were required to write their own recipes. In class, we did a “stone soup” process in which we went around the room and each student contributed one ingredient. This was a fun and effective way to end the course.

BTW, I don’t think that the conflict doctor metaphor is original from me. I have a vague sense of hearing it at some point, but I don’t know the source. Cathy Costantino used the term “dispute doctor,” citing a comment by Bob Bordone. See Cathy A. Costantino, Second Generation Organizational Conflict Management Systems Design: A Practitioner’s Perspective on Emerging Issues, 14 Harv. Negot. L. Rev. 81, 94 (2009).

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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