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Separating The People From The Problem At The ABA DRS Conference

by Victoria Pynchon
April 2009

From Settle It Now Negotiation Blog

Victoria Pynchon

The law school professor asked for a show of hands.

"How many lawyers are in the room?"

There was something about the way he shook his head, just slightly, from side to side, that communicated "too many lawyers," followed by a sigh that I read as  "I'm still going to smack them upside the head."  

I connected to my twitter network and tapped out  "now this speaker is going to dis lawyers - let me see if I can stay quiet." 

(image by the brilliant Charles Fincher at LawComix)

If disrespecting lawyers were an unusual event at ADR conferences, my "read" wouldn't have been so spot on.  But it's actually a category here:  the evils of litigation and its soulless practitioners. 

"The judicial system" began the law professor,

is a bureaucracy attended by people who are not employed by it.  Those people are lawyers who have been brain washed by law schools to eliminate emotion from their clients' conflicts; who have lost the ability to communicate with ordinary people; who strip context from conflict; and, who treat the people they represent like objects.

Ah.  Heartless functionaries of the evil judicial system.  Now that he'd brought it to my attention I could see that I'd spent a 25-year litigation career doing the work of the devil -- not caring about my clients; not awakening at 3 a.m. to craft a better strategy to vindicate their rights; failing to develop the courage (yes, courage) to stand in a courtroom, a shaky 28-year old kid, telling the Judge or a jury why they should grant my client the remedies available to him or her in law, equity and, yes, justice. 

A career in which I'd used my mind and body as a shield against repression and injustice for all of the individuals and entities I'd represented, including the rich and powerful, who deserve justice as much as the poor and inpecunious, whose fights I took up with the same vigor and dedication as the ones who'd paid my bills. 

Though the law professor apparently disagrees, I consider my work, and that of my colleagues to be worthy, even in those cases where insurance carriers were my clients, sued by their petroleum company policy holders who claimed entitlement to reimbursement for the intentional contamination of the soil under our feet and the groundwater some of us are required to drink.

Was this panel of law professors -- who wanted to put feelings and socio-cultural context and identity back into my clients' disputes -- simply unaware that I, a veteran of the successive civil rights movements of the mid-20th and early 21st centuries, am also a person with an identity and feelings, who has represented my clients with heart and passion and dedication in a socio-cultural context which has, at times, made my work not simply a social good, but a god damned heroic struggle?

But this isn't about me.  It isn't even about the flaws in the adversarial system or the profound imperfections in the chaotic state of mediation theory and practice today. 

This is about a conversation that mediators, lawyers and academics are not having and a rancor that inexplicably prevents us from taking the best of all systems to create something genuinely original and powerful.   

I'm inclined to believe that these predictable eruptions of anti-lawyer sentiment have something to do with power and who each "faction" believes possesses it.  The law professor of whom I speak, for instance, seemed envious when he said that the "bureaucracy of the judicial system has a monopoly on the coercive power of the state."  It was important enough for him to say it twice.  "Only the Courts can compel people to resolve their disputes in the adversarial system," he'd added.

If my reflex hadn't been to pick a positionally lawyerly response  during "audience participation" I would have, should have, asked how he could so thoroughly misread us -- his brothers and sisters in the law?  I also would have asked  him these questions:  

Do you really believe that attorneys -- those who sit before you today -- are the soulless, emotionless bureaucrats you say they are?

Is there something you would like those of us who remain in legal practice to do to help you help us help our clients?'

Are you envious of our coercive power?  Is it frustrating -- watching your cousins "at the bar"  -- use their power to compel people to attend to court proceedings when your own dispute resolution mechanism requires participants to volunteer?   

Is it painful to you that the people you believe will rise up and demand ADR solutions someday have not yet voluntarily knocked on ADR's door in sufficient numbers to create the non-adversarial legal utopia you long for?

Are we playing a zero-sum game here?  Fighting over territory?  Is my dispute resolution "turf" preventing yours from taking seed?  Is it impossible for us not only to co-exist, but to thrive in collaboration with one another? 

Do you really believe that we legal practitioners do not want the same social goods that seek?  The passably fair resolution of my neighbor's boundary line dispute?  The roughly just distribution of public goods?  The tolerably unbiased treatment of the governed by the government? In short, justice in an imperfect world? 

We are on the same team and we were all trained with the same intellectual rigor.  We require evidence to convict a man or woman of a crime, not hearsay, not speculation, not prejudice, but evidence.  The law and lawyers liberated more than half the citizenry from second-class status, at the same time that women and African Americans, Native Americans, "Chicanos," "Latinos," persons "of color" Muslims, Jews and Catholics fought to enter the American political and commercial "establishment" through the court system the professor reviles.

Instead of resenting and demonizing one another; instead of letting our own personal disappointments cause us to disrespect and demonize one another, why don't we all sit down, break bread, have a drink, take a walk in Central Park and find out how we might be of some assistance of each other.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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