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Shifting Paradigms: The Unauthorized Practice Of Law Or The Authorized Practice Of ADR

 

                     By John W. Cooley

 

                     This article was previously published by the "Dispute

                     Resolution Journal", of the American Arbitraiton

                     Association, August-October 2000.

 

                                                      Forum Discussion

                                                       Brief Comments

 

                     Introduction

 

                     In case you have not noticed, the very foundations of

                     our fledgling ADR profession are under attack. Two

                     states -- Virginia and North Carolina -- have already

                     implemented guidelines defining certain mediator

                     activities to be the practice of law.(1) Bar Associations

                     across the country are uniting in an effort to expand

                     the definition of "the practice of law" to incorporate the

                     broadest scope of human activity possible. The

                     American Bar Association's Ethics 2000 Commission is

                     currently proposing and seeking comments on new rules

                     that directly address the role of the lawyer as a neutral

                     -- as being something distinct and different from the

                     role of the non-lawyer neutral.(2) Paralleling these

                     thrusts is the American Bar Association's internal

                     debate on multi-disciplinary practice of law which

                     ultimately could have a very destructive impact on the

                     multidisciplinary practice of alternative dispute

                     resolution.(3) The purpose of this article is to alert you

                     -- lawyer and non-lawyer ADR professionals -- to these

                     facts and to conscript your involvement in defending

                     against what appears on the horizon to be powerful

                     legions of rulemakers and legislators that threaten to

                     lawyerize and parochialize the practice of alternative

                     dispute resolution. What is happening can best be

                     described as a concerted effort to, in effect, neutralize

                     the neutrals. Although both lawyers and non-lawyers

                     may be casualties of these efforts, non-lawyer neutrals

                     are likely to suffer the most. Unless we act quickly and

                     decisively, we could be picking up the pieces of our ADR

                     profession in a few short years and, in a dazed

                     condition, wondering how it all happened.

 

                     A helpful approach to analyzing the current situation

                     and its impact on the future of the ADR profession

                     would be to ask the questions a child would ask.

                     Applying this Socratic approach, we would be inclined to

                     frame four questions:

 

                     1. What is the Problem?

 

                     2. How do we optimally reframe the Problem?

 

                     3. What are the possible solutions to the reframed

                     problem?

 

                     4. What is the optimal solution to the reframed

                     problem?

 

                     Let's reflect on each of these questions in turn.

 

                     What Is The Problem?

 

                     Having wrestled for the last several years with this

                     question, I have come to the conclusion that some

                     well-intentioned members, and indeed leaders, of the

                     legal profession, the ADR profession, and academia --

                     yes, and even myself -- have defined and have been

                     trying to solve the wrong problem.(4) In short, the

                     problem has been our perception of the problem. We

                     have framed the problem in these terms: what activities

                     of a mediator constitute the practice of law (or the

                     unauthorized practice of law)? For reasons stated later,

                     this question frames the wrong problem. We should be

                     framing the problem in terms of the practice of ADR,

                     rather than in terms of the practice of law or the

                     unauthorized practice of law. One vehicle for

                     understanding the cause of this basic misperception is

                     the set of Guidelines on Mediation and the Unauthorized

                     Practice of Law developed by the Department of Dispute

                     Resolution Services of the Supreme Court of Virginia

                     ("Guidelines" or "Virginia Guidelines"). Another vehicle

                     for understanding the cause of the misperception is the

                     national debate over whether evaluative mediation

                     categorically constitutes the practice of law.

 

                     A. Misperception Spawned by the Virginia

                     Guidelines

 

                     The introduction to the Virginia Guidelines state that

                     "[w]hen ... law-related activities occur during mediation,

                     they may raise ... issues of the unauthorized practice of

                     law (UPL) for non-attorney mediators."(5) The

                     Guidelines go on to state in another section: "The

                     following are the two most common categories of

                     mediator activities that may potentially involve the

                     practice of law: Applying law to facts; Drafting

                     settlement agreements that may be viewed as legal

                     instruments."(6) The disturbing aspect of these

                     statements is their inherent presumption that just

                     because certain mediator activities appear to be

                     activities that lawyers perform on behalf of their clients,

                     they can constitute the practice of law, if engaged in by

                     lawyer-mediators, and the unauthorized practice of law

                     if engaged in by non-lawyer mediators -- vis-a-vis two

                     or more disputing parties. This is a frivolous leap of

                     logic. Where is the representative relationship? Where is

                     the duty of loyalty? What is the fiduciary duty owed by

                     whom and to whom? Where is the understanding of a

                     party that the mediator is protecting that party's

                     interests? How can the mediator receive confidential

                     information from two parties with adverse interests and

                     be practicing law with respect to either of them -- or

                     both of them? How can a mediator accept a service fee

                     from two people with adverse interests, yet be

                     practicing law with respect to both of them? If a lawyer

                     were practicing law in such situation, would not he or

                     she be in a classic conflict of interest situation?

 

                     But more importantly, this extraordinary leap of logic

                     leads to harmful results for mediation practitioners.

                     First, it reduces the practice of mediation to an exercise

                     in semantics. Non-lawyer mediators in Virginia now must

                     carefully craft each phrase they speak, lest they be later

                     accused of "the unauthorized practice of law".(7) This is

                     micro-management of professionals at its worst. For

                     example, the Virginia Guidelines give the following

                     examples of "reality testing questions that raise legal

                     issues" (emphasis added) which: (1) do not constitute

                     the unauthorized practice of law; and (2) probably do

                     constitute the unauthorized practice of law:

 

                     In a divorce mediation held in Virginia, if a non-lawyer

                     mediator were to ask the following questions, he or she

                     would:(8)

 

                      Not Be Engaged in the

                      Unauthorized Practice of

                      Law

                                               Be Engaged in the

                                               Unauthorized Practice of

                                               Law

                      "Have you both considered

                      whether a court would allow

                      Mary to take the children to

                      Florida?"

                                               "Mary, do you realize that the

                                               court that would hear this case

                                               would not allow you to take the

                                               children to Florida over Bill's

                                               objection?"

                      "How would the stock be

                      apportioned under the equitable

                      distribution statute?"

                                               "Bill, have you considered

                                               giving up on the stock issue

                                               since a court probably would

                                               view the asset as separate

                                               property."

 

 

                     In a personal injury case in Virginia, if a mediator were

                     to ask the following questions, he or she would:(9)

 

                      Not Be Engaged in the

                      Unauthorized Practice of

                      Law

                                              Be Engaged in the

                                              Unauthorized Practice of Law

                      "What is the statute of

                      limitations for your claims?"

                                              "Nicole, do you realize that the

                                              two year statute of limitations for

                                              personal injury claims has

                                              expired and that if the statute

                                              was raised by Ken as an

                                              affirmative defense, a court

                                              would dismiss your lawsuit?"

                      "Do either of you know what

                      the Virginia rules are regarding

                      negligence and contributory

                      negligence?"

                                              "Ken, have you considered that

                                              your own contributory

                                              negligence would prevent you

                                              from recovering damages from

                                              Nicole in court?"

 

 

                     The shocking reality, indeed the absurdity, of these

                     examples taken from Virginia's own Guidelines is that, in

                     Virginia, a mediator could be criminally prosecuted for

                     asking any of the four questions in the right-hand

                     column on the ground that he or she committed the

                     crime of practicing law without being authorized or

                     licensed to do so.(10) The folly of such

                     micro-management is apparent. These Virginia

                     Guidelines and others like it if adopted by other States

                     will cause great harm to the ADR profession by muzzling

                     mediators, by discouraging talented non-lawyers from

                     entering the ADR profession, by reducing the mediation

                     process to a mechanical, word-precise, self-conscious,

                     inflexible, content-void exercise.

 

                     The other mediator activities that the Guidelines attempt

                     to brand as the "practice of law" are those relating to

                     the mediator's role in drafting settlement agreements.

                     The Guidelines' drafting instructions are inconsistent

                     and incomprehensible. First they state that the

                     "mediator may take an active role in preparing the

                     agreement for the parties if they want the mediator to

                     perform this function."(11) Then, on the one hand, they

                     say that "a mediator should not add provisions to an

                     agreement beyond those specified by the

                     disputants"(12) while on the other, they state "a

                     mediator may suggest options for the parties to

                     consider when reaching an agreement."(13) The

                     Guidelines also essentially outlaw the use of "boilerplate"

                     provisions in agreements.(14) What if the mediator

                     suggests a boilerplate provision to which the parties

                     agree? Is the mediator engaging in the unauthorized

                     practice of law? The Guidelines' subtle distinctions are

                     impossible to accurately discern and they defy

                     compliance. As one commentator has astutely observed,

                     the "Guidelines set boundaries for mediators that may

                     be difficult, in practice, to enforce. In the subtle and

                     complex interactions of parties and mediator while they

                     are creating a memorandum of agreement, it will often

                     be difficult to discern whether the mediator's

                     involvement has altered or enhanced the parties' own

                     language."(15)

 

                     It must be emphasized that the Virginia Guidelines

                     attempting to define certain aspects of mediation as the

                     practice of law apply to both lawyer and non-lawyer

                     mediators. Thus, these Guidelines will adversely affect

                     the practice of mediation by lawyers both inside and

                     outside the State of Virginia. Because evaluative

                     mediation is considered the practice of law in Virginia,

                     lawyers who are not licensed to practice law in Virginia

                     will be deemed to be engaging in the unauthorized

                     practice of law in Virginia if they are hired to conduct an

                     evaluative mediation there. The Virginia Guidelines and

                     others like them (e.g. those of North Carolina) will

                     operate to parochialize the practice of mediation by

                     lawyers and to interfere significantly with the parties'

                     right to self-determination -- the right to hire the

                     lawyer-mediator of their choice, no matter where the

                     mediator is licensed to practice law.

 

                     B. Misperception Spawned by the National Debate

                     Over Evaluative Mediation

 

                     The national debate around the issue of whether

                     evaluative mediation is the practice of law has also

                     caused us to misperceive the true problem. In an

                     evaluative mediation, in contrast to a facilitative one, the

                     mediator plays an active role in helping the parties to

                     reality test, to accurately assess the strengths and

                     weaknesses of their respective cases, and to predict

                     what a likely result of an adjudication of the matter

                     might be. Often, the parties request the evaluative

                     mediator to provide them with an opinion of the fair

                     settlement value of the case or with a recommended

                     solution. Sometimes this joint request of the parties

                     requires the mediator to take into account, even

                     incidentally, the application of law to certain aspects of

                     the dispute. This activity of applying law to facts,

                     however slight, has sparked the debate over whether

                     evaluative mediation categorically constitutes the

                     practice of law. Those representing "practice of law"

                     viewpoint generally take the stand that when a mediator

                     evaluates the strengths and weakness of a party's case

                     by applying legal principles to specific facts he or she is

                     engaged in the practice of law.(16) They are apparently

                     worried that mediation parties may be injured by

                     reliance on erroneous information given to them by

                     non-lawyer mediators.(17) Those advancing the

                     counterargument urge mediators -- both lawyers and

                     non-lawyers alike -- to actively evaluate the strengths

                     and weaknesses of the disputing parties' cases by

                     applying legal principles to the facts in the

                     mediation.(18)

 

                     The argument holding mediation not to be the "practice

                     of law" is considerably more persuasive for several

                     reasons. First, the act of applying law to specific facts or

                     even giving advice or rendering an opinion that

                     incorporates a consideration of the applicable law does

                     not, in itself, constitute the practice of law. We can

                     point to many examples in society where non-lawyers

                     apply law to a specific factual situation and render

                     opinions and recommendations, yet they are not

                     considered to be practicing law (or engaged in the

                     unauthorized practice of law). Some of these include:

 

                          Jurors in the court system

                          Jurors in a private, simulated jury

                          CPAs and accountants (tax laws)

                          Non-law-trained employees of tax preparing

                          Companies, such as H&R block

                          Real estate appraisers (zoning laws;

                          Environmental laws)

                          Employees of title companies

                          Environmental experts

                          Police officers

                          Employees in every agency of federal and state

                          government (evaluating applications for licenses,

                          governmental benefits, etc.)

 

                     We could think of hundreds of other examples. If these

                     people are not "practicing law" in doing their jobs, why

                     should lawyer or non-lawyer mediators who perform

                     evaluative mediation be deemed to be practicing law?

                     The point where the logic of the "practice of law"

                     proponents fails is in its inability to explain why lawyer

                     or non-lawyer arbitrators do not practice law when they

                     render binding or non-binding awards. Clearly,

                     nonbinding arbitration is very similar to evaluative

                     mediation. Yet, those subscribing to the "practice of

                     law" theory assert that evaluative mediation is the

                     practice of law and nonbinding arbitration is not --

                     though some "practice of law" proponents are now

                     retreating from that position to contend that neutrals in

                     both processes (nonbinding arbitration and evaluative

                     mediation) are engaged in the practice of law. It is only a

                     short step from nonbinding to binding arbitration. Will

                     they next claim that binding arbitration is the practice of

                     law? If they do, they will have disenfranchised a large

                     part of the non-lawyer ADR profession that for decades

                     has performed admirably as arbitrators in numerous

                     types of dispute settings including the areas of

                     employment, construction, environmental, real estate,

                     and securities. Indeed, if members of the "practice of

                     law" contingent take that route, they will be embarking,

                     consciously or unconsciously, in the direction of

                     neutralizing the neutrals. If they do not choose the

                     route of arguing that binding arbitration is the practice

                     of law, then their argument will be hoisted on its own

                     petard. They will not be able to explain, logically, why

                     nonbinding arbitration is the practice of law and why

                     binding arbitration is not.

 

                     While this "practice of law" debate is interesting and

                     engaging, it is simply the wrong debate. We have

                     framed the wrong issue; we have defined (indeed,

                     designed) the wrong problem. The problem is not "what

                     is the practice of law (or the unauthorized practice of

                     law) relative to mediation," but rather "what is the

                     authorized practice of mediation within the larger

                     practice of ADR". We are trying to solve the wrong

                     problem because we are all inside a major paradigm shift

                     in society and have not stepped back far enough to see

                     the outer boundaries of the new paradigm. We are

                     trying to apply the template with which we are familiar --

                     the practice of law template -- to an evolving profession

                     -- the ADR profession -- whose ultimate boundaries are

                     still vague, whose characteristics seem, in part, similar

                     to the practice of law, but whose essence is distinctly

                     and wholly different. Figure 1 below illustrates this

                     perceptual problem.(19) Let us assume that we are

                     shown only the top drawing in the vertical column below

                     and asked: What computer keyboard symbol is being

                     masked by the rectangle? 

 

                     Figure 1

 

                     Most people would visualize a capital "B" and give that

                     as their answer (as shown in the middle drawing),

                     perhaps because the right side of the rectangle

                     suggests the vertical part of the letter capital "B".

                     People are quick to apply a familiar template in solving

                     problems. The correct answer, however, -- the number

                     "8" -- would be misperceived. The top rectangle actually

                     masks a symbol whose ultimate boundaries are vague,

                     whose characteristics seem, in part, similar to a B, but

                     whose essence, when fully exposed, is distinctly and

                     wholly different from a capital "B". The same is true of

                     the practice of law and the practice of ADR. Currently,

                     when we look at our ADR profession, parts of it appear

                     to be the practice of law ("B"), when in fact the ADR

                     profession consists of something entirely different --

                     the practice of ADR ("8").

 

                     Thus, the challenge is to reframe the problem as

                     presented. If we want to optimally reframe the problem,

                     we must be willing to see and to appreciate a new

                     paradigm. But first we need to understand the basic

                     phenomenon of paradigms and paradigm shifts.

 

                     How Do We Optimally Reframe The Problem?

 

                     Solving the problem of determining how to optimally

                     reframe the current problem in our profession must be

                     first approached by educating ourselves about

                     paradigms, paradigm shifts, and the paradigm effect. A

                     paradigm is a set of rules and regulations, written or

                     unwritten, that:

 

                          establishes or defines boundaries; and

                          tells one how to behave inside the boundaries in

                          order to be successful.

 

                     A paradigm shift is a change to a new game, a new set

                     of rules.(20) The process of shifting is called the

                     paradigm effect. Paradigms can occur in scientific,

                     technological, organizational, business, and social

                     contexts, among others. A "prevailing paradigm" defines

                     a set of rules by which problems are solved within a

                     discrete context.(21)

 

                     A simple example of a paradigm shift in a technological

                     context occurred last century in the watchmaking

                     industry. The Swiss had traditionally dominated the

                     world of watchmaking. In the beginning they were

                     constantly improving their watches. They invented the

                     minute hand and the second hand, they led the

                     research effort in finding better ways to manufacture

                     gears, bearings, and mainsprings of the then modern

                     watches. They spearheaded the research in

                     waterproofing watches and in self-winding watches. By

                     1968, the Swiss watchmakers had more than 65

                     percent of the unit sales in the world watch market and

                     between 80 to 90 percent of the profits, worldwide. By

                     1980 their market share collapsed to less than 10

                     percent of the world market share. Their profit

                     domination had plummeted to less than 20 percent.

                     What had happened? Simple. Without fully appreciating

                     it -- perhaps because of the narrowness of their focus

                     -- the Swiss encountered a paradigm shift -- a change

                     in the fundamental rules of watchmaking. Other

                     watchmakers were introducing electronic devices as a

                     substitute for purely mechanical watch movements. The

                     industry's interest in gears, bearings, and mainsprings,

                     was waning. In less than ten years, the Swiss

                     watchmaking business that had seemed to secure,

                     profitable, and dominant was essentially bankrupt. It is

                     estimated that between 1979 and 1981, fifty thousand

                     of the sixty-two thousand watchmakers had become

                     unemployed. This was economically catastrophic for a

                     country as small as Switzerland. For another nation --

                     Japan -- which had embraced the new paradigm of the

                     electronic quartz watch, saw their profitability in

                     watchmaking expand from 1% of the world watch

                     market in 1968 to 33 percent of the world market in the

                     1990s, with an equivalent share of the profits. The irony

                     of this situation is that the Swiss could have avoided its

                     catastrophe if it had just stepped back to fully

                     appreciate the prevailing and new paradigms, to think

                     about their own future, and to fully appreciate the kind

                     of change they were facing: a massive paradigm shift.

 

                     In any given context, the paradigm shifting process, or

                     paradigm effect, can be illustrated by a curve. Figure 2

                     below shows various segments of a paradigm effect

                     which might occur in any industry. The figure illustrates

                     time as graphed against the number of problems solved

                     in the prevailing paradigm, represented by the star on

                     the vertical axis. As people start solving problems in

                     new ways, using new rules, they see advantages to the

                     application of the new rules and begin adopting their

                     use successfully. 

 

                     Figure 2

 

                     In the B segment, rapid problem solving occurs to a

                     point represented by a break in the B segment. It is at

                     that point where the problems get more difficult and the

                     rate of problem solving slows down. In the C phase, all

                     the toughest problems of the prevailing paradigm need

                     to be solved. Everyone in the field desires to solve these

                     problems but no one has a clue how to do it. That is

                     where a new paradigm appears that, for most people, is

                     unexpected. Figure 3 below illustrates this phenomenon.

 

                                               

 

                     Figure 3

 

                     For a while, people who are happy with the prevailing

                     paradigm will reject the new paradigm and try to apply

                     the old rules to the new problems. A new paradigm puts

                     everyone practicing the old paradigm at substantial risk.

                     The higher one's position in the prevailing paradigm

                     industry, the greater the risk. The better one is at

                     solving problems under the prevailing set of rules, the

                     more one has invested in it, and the more one has to

                     lose by changing paradigms. Often outsiders appear on

                     the scene and begin the paradigm shift -- they take

                     risks to try out new rules -- new ways of doing things.

                     As one author has noted:

 

                     "The paradigm shifter has played the role of catalyst, of

                     change agent, and has stirred up a lot of thinking in the

                     prevailing paradigm community. The community

                     acknowledges that the problems on their shelf should

                     be solved. They know they are not solving them.

 

                     They also know that the paradigm shifter has offered an

                     alternative way of thinking about these difficult and

                     important problems. Yet the community continues to

                     defend the prevailing paradigm, because it is still very

                     successful."(22)

 

                     Then come the paradigm pioneers to take the rough

                     pathway that the paradigm shifters have discovered.

                     These pioneers (some of whom may have also been

                     shifters) are captivated, aesthetically and practically, by

                     a new set of rules that suggests more successful

                     solutions to problems than those achievable by the

                     prevailing rules. As the same author points out:

 

                     "Driven by the frustration of the old and the appeal of

                     the new, they cross the brink. They leap a professional

                     chasm that separates the old paradigm, where the

                     territory is well illuminated and where repu- tations and

                     positions are clearly defined, into a new territory,

                     illuminated by the new paradigm in such a limited way

                     that it is impossible to know whether they are standing

                     on the edge of an unexplored continent or merely on a

                     tiny island."(23)

 

                     The new paradigm becomes the prevailing paradigm until

                     a still newer paradigm appears and either persists or

                     fails.

 

                     The "paradigm effect" theory helps us to understand

                     what is now occurring in the organized bar and

                     academia relative to the new paradigm of alternative

                     dispute resolution. Many bar leaders and academics are

                     rejecting this new paradigm being defined by a new and

                     evolving ADR profession because they feel more

                     comfortable with the old litigation rules and procedures

                     which they know well and with which they feel

                     comfortable. Other bar leaders and academics are not

                     risk takers and are only partially embracing ADR so long

                     as they can apply prevailing definitions of "the practice

                     of law" to achieve a comfort level with the new

                     paradigm. The paradigm pioneers are those within the

                     evolving ADR profession who have the courage and

                     tenacity to seek out a better way to do things and the

                     intuition to see the new paradigm in its ultimate

                     splendor, with the knowledge that when the rules

                     change the whole world can change.

 

                     For the paradigm pioneers (leaders of the ADR

                     movement), the optimally reframed problem is "what is

                     the authorized practice of mediation within the larger

                     practice of ADR". To answer this question (or to solve

                     the reframed problem) requires the pioneers to define

                     several terms: mediation, the practice of mediation, the

                     authorized practice of mediation, ADR, and the practice

                     of ADR. They are in the process of addressing all of

                     those tasks at the present time in an effort to resolve

                     the reframed problem.

 

                     What Are The Possible Solutions To The Reframed

                     Problem?

 

                     There are many solutions to the reframed problem.

                     There are substantial differences of opinion as to how

                     even the basic processes of mediation and arbitration

                     should be defined, not to mention the numerous hybrid

                     ADR processes that have emerged over the last ten

                     years or so. One point on which everyone seems to

                     agree is that the process of defining the ADR

                     processes, appropriate ADR practice, and ultimately the

                     precise contours of the ADR profession will take a

                     substantial amount of time, perhaps a decade or more.

                     SPIDR International's(24) Committee on Credentials,

                     Competencies, and Qualifications ("3CQ") has made

                     great strides in establishing working groups to study

                     topical areas of accreditation and registry, certification,

                     practitioner membership, and competency. But an

                     immense amount of work has yet to be done -- and all

                     this to be accomplished within the context of a planned

                     merger with two other national dispute resolution

                     organizations -- the Academy of Family Mediators and

                     Conflict Resolution Education Network.

 

                     In the face of these obstacles, the principal quandary of

                     the pioneers and designers of this new paradigm -- the

                     ADR profession -- is that members of the prevailing (law

                     practice) paradigm want to apply their law practice

                     definitions before the pioneers have an opportunity to

                     define basic terms and establish clear boundaries of

                     their ADR profession. The pioneers, therefore, must

                     design an interim paradigm to avoid being subsumed

                     into the law practice paradigm. An interim paradigm (or

                     as some would urge, a "parallel" paradigm) appears to

                     be the optimal solution to the reframed problem.

 

                     What Is The Optimal Solution To The Reframed

                     Problem?

 

                     The optimal solution to the reframed problem has at

                     least six elements:

 

                        1.gaining time;

                        2.intensive study;

                        3.consensus;

                        4.massive public education;

                        5.strong ADR practice emphasis on the parties'

                          rights of self-determination and informed consent;

                          and

                        6.at least as an interim measure, to define the ADR

                          practitioner's professional and ethical role in

                          relation to the judicial rather than the lawyer's

                          role.

 

                     Figure 2

 

                     In the B segment, rapid problem solving occurs to a

                     point represented by a break in the B segment. It is at

                     that point where the problems get more difficult and the

                     rate of problem solving slows down. In the C phase, all

                     the toughest problems of the prevailing paradigm need

                     to be solved. Everyone in the field desires to solve these

                     problems but no one has a clue how to do it. That is

                     where a new paradigm appears that, for most people, is

                     unexpected. Figure 3 below illustrates this phenomenon.

 

                                               

 

                     Figure 3

 

                     For a while, people who are happy with the prevailing

                     paradigm will reject the new paradigm and try to apply

                     the old rules to the new problems. A new paradigm puts

                     everyone practicing the old paradigm at substantial risk.

                     The higher one's position in the prevailing paradigm

                     industry, the greater the risk. The better one is at

                     solving problems under the prevailing set of rules, the

                     more one has invested in it, and the more one has to

                     lose by changing paradigms. Often outsiders appear on

                     the scene and begin the paradigm shift -- they take

                     risks to try out new rules -- new ways of doing things.

                     As one author has noted:

 

                     "The paradigm shifter has played the role of catalyst, of

                     change agent, and has stirred up a lot of thinking in the

                     prevailing paradigm community. The community

                     acknowledges that the problems on their shelf should

                     be solved. They know they are not solving them.

 

                     They also know that the paradigm shifter has offered an

                     alternative way of thinking about these difficult and

                     important problems. Yet the community continues to

                     defend the prevailing paradigm, because it is still very

                     successful."(22)

 

                     Then come the paradigm pioneers to take the rough

                     pathway that the paradigm shifters have discovered.

                     These pioneers (some of whom may have also been

                     shifters) are captivated, aesthetically and practically, by

                     a new set of rules that suggests more successful

                     solutions to problems than those achievable by the

                     prevailing rules. As the same author points out:

 

                     "Driven by the frustration of the old and the appeal of

                     the new, they cross the brink. They leap a professional

                     chasm that separates the old paradigm, where the

                     territory is well illuminated and where repu- tations and

                     positions are clearly defined, into a new territory,

                     illuminated by the new paradigm in such a limited way

                     that it is impossible to know whether they are standing

                     on the edge of an unexplored continent or merely on a

                     tiny island."(23)

 

                     The new paradigm becomes the prevailing paradigm until

                     a still newer paradigm appears and either persists or

                     fails.

 

                     The "paradigm effect" theory helps us to understand

                     what is now occurring in the organized bar and

                     academia relative to the new paradigm of alternative

                     dispute resolution. Many bar leaders and academics are

                     rejecting this new paradigm being defined by a new and

                     evolving ADR profession because they feel more

                     comfortable with the old litigation rules and procedures

                     which they know well and with which they feel

                     comfortable. Other bar leaders and academics are not

                     risk takers and are only partially embracing ADR so long

                     as they can apply prevailing definitions of "the practice

                     of law" to achieve a comfort level with the new

                     paradigm. The paradigm pioneers are those within the

                     evolving ADR profession who have the courage and

                     tenacity to seek out a better way to do things and the

                     intuition to see the new paradigm in its ultimate

                     splendor, with the knowledge that when the rules

                     change the whole world can change.

 

                     For the paradigm pioneers (leaders of the ADR

                     movement), the optimally reframed problem is "what is

                     the authorized practice of mediation within the larger

                     practice of ADR". To answer this question (or to solve

                     the reframed problem) requires the pioneers to define

                     several terms: mediation, the practice of mediation, the

                     authorized practice of mediation, ADR, and the practice

                     of ADR. They are in the process of addressing all of

                     those tasks at the present time in an effort to resolve

                     the reframed problem.

 

                     What Are The Possible Solutions To The Reframed

                     Problem?

 

                     There are many solutions to the reframed problem.

                     There are substantial differences of opinion as to how

                     even the basic processes of mediation and arbitration

                     should be defined, not to mention the numerous hybrid

                     ADR processes that have emerged over the last ten

                     years or so. One point on which everyone seems to

                     agree is that the process of defining the ADR

                     processes, appropriate ADR practice, and ultimately the

                     precise contours of the ADR profession will take a

                     substantial amount of time, perhaps a decade or more.

                     SPIDR International's(24) Committee on Credentials,

                     Competencies, and Qualifications ("3CQ") has made

                     great strides in establishing working groups to study

                     topical areas of accreditation and registry, certification,

                     practitioner membership, and competency. But an

                     immense amount of work has yet to be done -- and all

                     this to be accomplished within the context of a planned

                     merger with two other national dispute resolution

                     organizations -- the Academy of Family Mediators and

                     Conflict Resolution Education Network.

 

                     In the face of these obstacles, the principal quandary of

                     the pioneers and designers of this new paradigm -- the

                     ADR profession -- is that members of the prevailing (law

                     practice) paradigm want to apply their law practice

                     definitions before the pioneers have an opportunity to

                     define basic terms and establish clear boundaries of

                     their ADR profession. The pioneers, therefore, must

                     design an interim paradigm to avoid being subsumed

                     into the law practice paradigm. An interim paradigm (or

                     as some would urge, a "parallel" paradigm) appears to

                     be the optimal solution to the reframed problem.

 

                     What Is The Optimal Solution To The Reframed

                     Problem?

 

                     The optimal solution to the reframed problem has at

                     least six elements:

 

                        1.gaining time;

                        2.intensive study;

                        3.consensus;

                        4.massive public education;

                        5.strong ADR practice emphasis on the parties'

                          rights of self-determination and informed consent;

                          and

                        6.at least as an interim measure, to define the ADR

                          practitioner's professional and ethical role in

                          relation to the judicial rather than the lawyer's

                          role.

 

                     Figure 2

 

                     In the B segment, rapid problem solving occurs to a

                     point represented by a break in the B segment. It is at

                     that point where the problems get more difficult and the

                     rate of problem solving slows down. In the C phase, all

                     the toughest problems of the prevailing paradigm need

                     to be solved. Everyone in the field desires to solve these

                     problems but no one has a clue how to do it. That is

                     where a new paradigm appears that, for most people, is

                     unexpected. Figure 3 below illustrates this phenomenon.

 

                                               

 

                     Figure 3

 

                     For a while, people who are happy with the prevailing

                     paradigm will reject the new paradigm and try to apply

                     the old rules to the new problems. A new paradigm puts

                     everyone practicing the old paradigm at substantial risk.

                     The higher one's position in the prevailing paradigm

                     industry, the greater the risk. The better one is at

                     solving problems under the prevailing set of rules, the

                     more one has invested in it, and the more one has to

                     lose by changing paradigms. Often outsiders appear on

                     the scene and begin the paradigm shift -- they take

                     risks to try out new rules -- new ways of doing things.

                     As one author has noted:

 

                     "The paradigm shifter has played the role of catalyst, of

                     change agent, and has stirred up a lot of thinking in the

                     prevailing paradigm community. The community

                     acknowledges that the problems on their shelf should

                     be solved. They know they are not solving them.

 

                     They also know that the paradigm shifter has offered an

                     alternative way of thinking about these difficult and

                     important problems. Yet the community continues to

                     defend the prevailing paradigm, because it is still very

                     successful."(22)

 

                     Then come the paradigm pioneers to take the rough

                     pathway that the paradigm shifters have discovered.

                     These pioneers (some of whom may have also been

                     shifters) are captivated, aesthetically and practically, by

                     a new set of rules that suggests more successful

                     solutions to problems than those achievable by the

                     prevailing rules. As the same author points out:

 

                     "Driven by the frustration of the old and the appeal of

                     the new, they cross the brink. They leap a professional

                     chasm that separates the old paradigm, where the

                     territory is well illuminated and where repu- tations and

                     positions are clearly defined, into a new territory,

                     illuminated by the new paradigm in such a limited way

                     that it is impossible to know whether they are standing

                     on the edge of an unexplored continent or merely on a

                     tiny island."(23)

 

                     The new paradigm becomes the prevailing paradigm until

                     a still newer paradigm appears and either persists or

                     fails.

 

                     The "paradigm effect" theory helps us to understand

                     what is now occurring in the organized bar and

                     academia relative to the new paradigm of alternative

                     dispute resolution. Many bar leaders and academics are

                     rejecting this new paradigm being defined by a new and

                     evolving ADR profession because they feel more

                     comfortable with the old litigation rules and procedures

                     which they know well and with which they feel

                     comfortable. Other bar leaders and academics are not

                     risk takers and are only partially embracing ADR so long

                     as they can apply prevailing definitions of "the practice

                     of law" to achieve a comfort level with the new

                     paradigm. The paradigm pioneers are those within the

                     evolving ADR profession who have the courage and

                     tenacity to seek out a better way to do things and the

                     intuition to see the new paradigm in its ultimate

                     splendor, with the knowledge that when the rules

                     change the whole world can change.

 

                     For the paradigm pioneers (leaders of the ADR

                     movement), the optimally reframed problem is "what is

                     the authorized practice of mediation within the larger

                     practice of ADR". To answer this question (or to solve

                     the reframed problem) requires the pioneers to define

                     several terms: mediation, the practice of mediation, the

                     authorized practice of mediation, ADR, and the practice

                     of ADR. They are in the process of addressing all of

                     those tasks at the present time in an effort to resolve

                     the reframed problem.

 

                     What Are The Possible Solutions To The Reframed

                     Problem?

 

                     There are many solutions to the reframed problem.

                     There are substantial differences of opinion as to how

                     even the basic processes of mediation and arbitration

                     should be defined, not to mention the numerous hybrid

                     ADR processes that have emerged over the last ten

                     years or so. One point on which everyone seems to

                     agree is that the process of defining the ADR

                     processes, appropriate ADR practice, and ultimately the

                     precise contours of the ADR profession will take a

                     substantial amount of time, perhaps a decade or more.

                     SPIDR International's(24) Committee on Credentials,

                     Competencies, and Qualifications ("3CQ") has made

                     great strides in establishing working groups to study

                     topical areas of accreditation and registry, certification,

                     practitioner membership, and competency. But an

                     immense amount of work has yet to be done -- and all

                     this to be accomplished within the context of a planned

                     merger with two other national dispute resolution

                     organizations -- the Academy of Family Mediators and

                     Conflict Resolution Education Network.

 

                     In the face of these obstacles, the principal quandary of

                     the pioneers and designers of this new paradigm -- the

                     ADR profession -- is that members of the prevailing (law

                     practice) paradigm want to apply their law practice

                     definitions before the pioneers have an opportunity to

                     define basic terms and establish clear boundaries of

                     their ADR profession. The pioneers, therefore, must

                     design an interim paradigm to avoid being subsumed

                     into the law practice paradigm. An interim paradigm (or

                     as some would urge, a "parallel" paradigm) appears to

                     be the optimal solution to the reframed problem.

 

                     What Is The Optimal Solution To The Reframed

                     Problem?

 

                     The optimal solution to the reframed problem has at

                     least six elements:

 

                        1.gaining time;

                        2.intensive study;

                        3.consensus;

                        4.massive public education;

                        5.strong ADR practice emphasis on the parties'

                          rights of self-determination and informed consent;

                          and

                        6.at least as an interim measure, to define the ADR

                          practitioner's professional and ethical role in

                          relation to the judicial rather than the lawyer's

                          role.

 

                     Figure 2

 

                     In the B segment, rapid problem solving occurs to a

                     point represented by a break in the B segment. It is at

                     that point where the problems get more difficult and the

                     rate of problem solving slows down. In the C phase, all

                     the toughest problems of the prevailing paradigm need

                     to be solved. Everyone in the field desires to solve these

                     problems but no one has a clue how to do it. That is

                     where a new paradigm appears that, for most people, is

                     unexpected. Figure 3 below illustrates this phenomenon.

 

                                                         

 

                     Figure 3

 

                     For a while, people who are happy with the prevailing

                     paradigm will reject the new paradigm and try to apply

                     the old rules to the new problems. A new paradigm puts

                     everyone practicing the old paradigm at substantial risk.

                     The higher one's position in the prevailing paradigm

                     industry, the greater the risk. The better one is at

                     solving problems under the prevailing set of rules, the

                     more one has invested in it, and the more one has to

                     lose by changing paradigms. Often outsiders appear on

                     the scene and begin the paradigm shift -- they take

                     risks to try out new rules -- new ways of doing things.

                     As one author has noted:

 

                     "The paradigm shifter has played the role of catalyst, of

                     change agent, and has stirred up a lot of thinking in the

                     prevailing paradigm community. The community

                     acknowledges that the problems on their shelf should

                     be solved. They know they are not solving them.

 

                     They also know that the paradigm shifter has offered an

                     alternative way of thinking about these difficult and

                     important problems. Yet the community continues to

                     defend the prevailing paradigm, because it is still very

                     successful."(22)

 

                     Then come the paradigm pioneers to take the rough

                     pathway that the paradigm shifters have discovered.

                     These pioneers (some of whom may have also been

                     shifters) are captivated, aesthetically and practically, by

                     a new set of rules that suggests more successful

                     solutions to problems than those achievable by the

                     prevailing rules. As the same author points out:

 

                     "Driven by the frustration of the old and the appeal of

                     the new, they cross the brink. They leap a professional

                     chasm that separates the old paradigm, where the

                     territory is well illuminated and where repu- tations and

                     positions are clearly defined, into a new territory,

                     illuminated by the new paradigm in such a limited way

                     that it is impossible to know whether they are standing

                     on the edge of an unexplored continent or merely on a

                     tiny island."(23)

 

                     The new paradigm becomes the prevailing paradigm until

                     a still newer paradigm appears and either persists or

                     fails.

 

                     The "paradigm effect" theory helps us to understand

                     what is now occurring in the organized bar and

                     academia relative to the new paradigm of alternative

                     dispute resolution. Many bar leaders and academics are

                     rejecting this new paradigm being defined by a new and

                     evolving ADR profession because they feel more

                     comfortable with the old litigation rules and procedures

                     which they know well and with which they feel

                     comfortable. Other bar leaders and academics are not

                     risk takers and are only partially embracing ADR so long

                     as they can apply prevailing definitions of "the practice

                     of law" to achieve a comfort level with the new

                     paradigm. The paradigm pioneers are those within the

                     evolving ADR profession who have the courage and

                     tenacity to seek out a better way to do things and the

                     intuition to see the new paradigm in its ultimate

                     splendor, with the knowledge that when the rules

                     change the whole world can change.

 

                     For the paradigm pioneers (leaders of the ADR

                     movement), the optimally reframed problem is "what is

                     the authorized practice of mediation within the larger

                     practice of ADR". To answer this question (or to solve

                     the reframed problem) requires the pioneers to define

                     several terms: mediation, the practice of mediation, the

                     authorized practice of mediation, ADR, and the practice

                     of ADR. They are in the process of addressing all of

                     those tasks at the present time in an effort to resolve

                     the reframed problem.

 

                     What Are The Possible Solutions To The Reframed

                     Problem?

 

                     There are many solutions to the reframed problem.

                     There are substantial differences of opinion as to how

                     even the basic processes of mediation and arbitration

                     should be defined, not to mention the numerous hybrid

                     ADR processes that have emerged over the last ten

                     years or so. One point on which everyone seems to

                     agree is that the process of defining the ADR

                     processes, appropriate ADR practice, and ultimately the

                     precise contours of the ADR profession will take a

                     substantial amount of time, perhaps a decade or more.

                     SPIDR International's(24) Committee on Credentials,

                     Competencies, and Qualifications ("3CQ") has made

                     great strides in establishing working groups to study

                     topical areas of accreditation and registry, certification,

                     practitioner membership, and competency. But an

                     immense amount of work has yet to be done -- and all

                     this to be accomplished within the context of a planned

                     merger with two other national dispute resolution

                     organizations -- the Academy of Family Mediators and

                     Conflict Resolution Education Network.

 

                     In the face of these obstacles, the principal quandary of

                     the pioneers and designers of this new paradigm -- the

                     ADR profession -- is that members of the prevailing (law

                     practice) paradigm want to apply their law practice

                     definitions before the pioneers have an opportunity to

                     define basic terms and establish clear boundaries of

                     their ADR profession. The pioneers, therefore, must

                     design an interim paradigm to avoid being subsumed

                     into the law practice paradigm. An interim paradigm (or

                     as some would urge, a "parallel" paradigm) appears to

                     be the optimal solution to the reframed problem.

 

                     What Is The Optimal Solution To The Reframed

                     Problem?

 

                     The optimal solution to the reframed problem has at

                     least six elements:

 

                        1.gaining time;

                        2.intensive study;

                        3.consensus;

                        4.massive public education;

                        5.strong ADR practice emphasis on the parties'

                          rights of self-determination and informed consent;

                          and

                        6.at least as an interim measure, to define the ADR

                          practitioner's professional and ethical role in

                          relation to the judicial rather than the lawyer's

                          role.

 

                     1. Gaining time.

                     It is important that current efforts to define mediation in

                     relation to the practice of law be suspended indefinitely

                     so that the designers of the ADR profession have

                     sufficient time to study all relevant aspects of ADR

                     practice and make careful and informed decisions about

                     how it should be defined and regulated. Actually, there

                     is no actual need for the "practice of law" proponents to

                     expedite the lawyerizing of mediation. Nationwide, the

                     number of misconduct complaints made against

                     mediators has been de minimis. The National Conference

                     of Commissioners on Uniform State Laws in early 2000

                     demonstrated great wisdom by slowing down the

                     committee machinery looking into proposed national

                     uniform legislation regarding mediation confidentiality.

                     This conduct should serve as an example for those who

                     are overly anxious to label aspects of mediation as the

                     practice of law.

 

                     2. Intensive study.

                     The ADR profession designers have daunting tasks

                     ahead. They must not only design standards of

                     competency for neutrals in various types of ADR

                     processes but they must also design standards and

                     methods to properly train and evaluate ADR

                     professionals. They will also be involved in how to

                     properly regulate practitioners of the ADR profession.

                     This latter task is most important because the current

                     lack of certification, regulation and oversight of neutrals

                     is in large part fueling the efforts of the "practice of law"

                     proponents to bring mediation within the scope of

                     lawyer regulation.

 

                     3. Consensus.

                     There are widely disparate views among members of our

                     profession as to how, specifically, to define the ADR

                     processes and as to what constitutes proper ADR

                     practice in each of the processes. Consensus will not

                     come easy. But it must come, if we are to become a

                     self-regulated profession.

 

                     4. Massive public education.

                     Nationally, many more people know much more about

                     ADR than they did ten years ago. This has been the

                     result of widespread efforts of peer-review mediation

                     proponents in our nation's school systems, many new

                     periodical and newsletters covering ADR topics, court

                     mandated ADR programs, and other means. However,

                     the general public still has only a vague notion of what

                     mediation and arbitration are, and practically no

                     understanding of what the ADR hybrids are. If we are

                     going to become a self-regulated profession we all must

                     cooperate to educate the general public on the various

                     beneficial services that our profession has to offer.

 

                     5. Parties' rights to self-determination and

                     informed consent.

                     ADR profession leaders and designers must take

                     immediate and continuing measures to emphasize the

                     importance of practitioners preserving and guaranteeing

                     to all parties who use ADR services the parties' rights to

                     self-determination and informed consent.

                     Self-determination is important because it preserves the

                     parties right to freely and jointly choose the neutral

                     (lawyer and nonlawyer) and the ADR process that best

                     suits their specific needs. Informed consent is important

                     because it best responds to the "practice of law"

                     proponents' worry that users will be confused about the

                     neutral's role and the nature and purpose of the

                     process.

 

                     6. Focus on the judicial rather than the lawyer's

                     role.

                     Finally, at least as an interim (or parallel) measure, the

                     ADR profession leaders and designers should define the

                     ADR practitioner's professional and ethical role in

                     relation to the judicial rather that the lawyer's role. The

                     judicial role is a much more appropriate and logical

                     interim analog than the lawyer role. First, when

                     performing their judicial role (which includes applying law

                     to facts and assisting with the drafting of settlement

                     agreements), judges are not practicing law.(25) Second,

                     both lawyers and non-lawyers serve in the judicial

                     capacity across the United States. Indeed, being a

                     lawyer is not even a requisite qualification to serve on

                     the United States Supreme Court. Although the

                     American Bar Association's Ethics 2000 Commission is

                     studying and proposing changes to the ABA's Model

                     Rules of Professional Conduct for lawyers, there is

                     currently no similar study being undertaken with respect

                     to the ABA Model Code of Judicial Conduct. ADR

                     profession leaders and designers should take an active

                     role in urging the study and revision of the ABA Model

                     Code of Judicial Conduct, first to modernize the judicial

                     role to include standards relating to judges' evolving

                     ADR functions; and second, to consider the inclusion of

                     new Canons specifically addressing the neutral roles of

                     lawyers and non-lawyers in the various ADR processes.

 

                     Conclusion

 

                     Very simply, my words here are a call to arms for all

                     members of our new ADR profession. Who better than

                     we -- the mediators and the arbitrators -- are more

                     capable of solving and helping others to solve difficult

                     problems. Our principal weapons are not insults and

                     epithets, but rather our abilities to ask questions, to

                     listen intently, to perceive clearly, to understand

                     profoundly, and to articulate convincingly. If we work

                     together we can conquer the challenges that currently

                     confront our profession. If we continue to ask the

                     questions a child would ask, we will learn forever; and if

                     we dare to change the rules, we can succeed in

                     changing the whole world.

 

                     End Notes

 

                     1. See David A. Hoffman and Natasha A. Affolder,

                     "Mediation and UPL: Do Mediators Have a Well-founded

                     Fear of Prosecution?" Dispute Resolution Magazine, 20

                     (Winter, 2000).

 

                     2. See Ethics 2000 Commission Proposed Rule 2.X --

                     Public Discussion Draft April 18, 2000 -- "Lawyer

                     Serving as Third-Party Neutral". Other draft rule

                     changes that relate in part to ADR are Proposed Rule

                     1.12, "Former Judge, Arbitrator, Mediator or Other

                     Third-Party Neutral" and Proposed Rule 5.5,

                     "Unauthorized Practice of Law".

 

                     3. See generally, John Gibeaut, "MDP on Deck," 86 ABAJ

                     22 (June, 2000); Peter C. Kostant, "The Future of the

                     Profession: A Symposium on Multidisciplinary Practice:

                     Breeding Better Watchdogs: Multidisciplinary

                     Partnerships in Corporate Legal Practice," 84 Minn. L.

                     Rev. 1213 (2000).

 

                     4. See generally, the symposium on the topic, "Is

                     Mediation the Practice of Law?" in Forum, Number 33

                     (NIDR, June 1997).

 

                     5. Guidelines, p. 1.

 

                     6. Guidelines, pp. 4-5. The Virginia Guidelines prohibit

                     mediators from giving legal advice. Conceding that the

                     term "legal advice" has "not been precisely defined in

                     Virginia," the Guidelines adopt the following definition for

                     "legal advice in the mediation context": "At a minimum, a

                     mediator provides legal advice whenever, in the

                     mediation context, he or she applies legal principles to

                     facts in a manner that (1) in effect predicts a specific

                     resolution of a legal issue or (2) directs, counsels,

                     urges, or recommends a course of action by a disputant

                     or dis-putants as a means of resolving a legal issue."

                     Guidelines, p. 13.

 

                     7. The Virginia Guidelines attempt to draw a line

                     between providing legal information (which is not the

                     practice of law) and giving legal advice (which is). The

                     Guidelines are quite vague on this point and provide a

                     playground for prosecutorial mischief.

 

                     8. Guidelines, p. 18.

 

                     9. Guidelines, p. 18.

 

                     10. 54.1-3904, Code of Virginia. Confounding this

                     matter of permissible and impermissible mediator

                     questions further is the Guidelines' seemingly

                     inconsistent discussion evolving from the premise that

                     mediators "may make statements that are declarative of

                     the state of the law of a given legal topic and these

                     statements are generally permissible." Guidelines, p. 16.

                     The Guidelines provide the following statements

                     declarative of the law that "probably would not be

                     considered legal advice":

 

                     In the context of a divorce mediation: "In Virginia,

                     custody involves two major components: with whom will

                     the child primarily reside and who is responsible for

                     making decisions concerning the upbringing of the

                     child."

 

                     In the context of a personal injury dispute: "Generally,

                     the statute of limitations in Virginia for personal injury

                     claims is two years."

 

                     In the context of a commercial dispute: "Generally

                     speaking, a contract for the lease of goods that exceeds

                     $1000 must be in writing to be enforceable."

 

                     Guidelines, pp. 16-17. These declaratory statements

                     that are not deemed by the Guidelines to be the

                     unauthorized practice of law read much like the

                     questions in the right hand columns of the two tables

                     appearing supra in text which the Guidelines state would

                     constitute the unauthorized practice of law.

 

                     11. Guidelines, p. 25.

 

                     12. Guidelines, p. 25.

 

                     13. Guidelines, p. 26.

 

                     14. Guidelines, p. 25.

 

                     15. David A. Hoffman and Natasha A. Affolder, supra

                     note 2 at 21-22.

 

                     16. See, e.g., Carrie Menkel-Meadow, "Ethics in

                     Alternative Dispute Resolution: New Issues, No Answers

                     from the Adversary Conception of Lawyers'

                     Responsibilities," 38 South Texas Law Review 407, 424

                     (1997).

 

                     17. See, e.g.,Carrie Menkel-Meadow, "Is Mediation the

                     Practice of Law?," Alternatives, May 1996 at 60-61.

 

                     18. See, e.g., Donald T. Weckstein, "In Praise of Party

                     Empowerment -- And of Mediator Activism," 33

                     Willamette Law Review 501, 543-44 (1997).

 

                     19. Figure 1 appears in Edward de Bono, Lateral

                     Thinking: Creativity Step by Step, Harper & Row

                     Publishers, p. 272 (1990).

 

                     20. See Joel Arthur Barker, Paradigms: The Business of

                     Discovering the Future, HarperBusiness, pp. 33, 37

                     (1992); see also

 

                     Thomas S. Kuhn, The Structure of Scientific

                     Revolutions, (2d Ed.), University of Chicago Press

                     (1970).

 

                     21. Joel Arthur Barker, supra note 21 at p. 42. The

                     remainder of this section, including Figures 2 and 3, is

                     adapted from Id. at pp. 42-83.

 

                     22. Id. at 72.

 

                     23. Id. at 74.

 

                     24. See The International Society of Professionals in

                     Dispute Resolution's website: <www.spidr.org>.

 

                     25. American Bar Association's Model Code of Judicial

                     Conduct, Canon 4G.

 

                            Biography

 

                     John W. Cooley is a former United States Magistrate,

                     Assistant United States Attorney, Senior Staff Attorney

                     for the United States Court of Appeals for the Seventh

                     Circuit, and a partner in a Chicago law firm. He is the

                     immediate past President of the Chicago Chapter of the

                     Society of Professionals in Dispute Resolution. In private

                     practice in the Chicago area, he currently serves on the

                     judicial panel of Judicial Dispute Resolution, Inc. (JDR) as

                     a mediator, arbitrator, ADR trainer, consultant in the

                     design of dispute resolution systems, and he is an

                     Associate of the Dispute Resolution Research Center,

                     Kellogg Graduate School of Management, Northwestern

                     University. An Adjunct Professor of Law at Loyola

                     University of Chicago School of Law, he has co-designed

                     and co-taught an innovative course on Alternatives to

                     Litigation. He is the author of Mediation Advocacy

                     (National Institute for Trial Advocacy, 1996), co-author

                     with Northwestern University Law Professor Steven

                     Lubet of Arbitration Advocacy (NITA, 1997), The

                     Arbitrator's Handbook (forthcoming, NITA, Fall, 1998),

                     and Callaghan's Appellate Advocacy Manual (Clark

                     Boardman Callaghan, 1989), and author of numerous

                     articles on litigation, judicial, and ADR topics. He is a

                     graduate of the United States Military Academy at West

                     Point and the University of Notre Dame Law School,

                     receiving a year of his legal training at the School's

                     Centre for Legal Studies in London, England.

 

                     Email: JackWCool@aol.com

 

                            Comments

                      

                      Dennis ,   Jupiter FL

                                                                  03/17/01

 

                        It would seem to me that in an attempt to

                        professionalize mediation practice that the lawyers

                        involved in this matter have contradicted themselves.

 

                        In essence, they have created a dispute within the

                        field of dispute resolution. Should the psychologists

                        now too join in and claim that mediators are infringing

                        on their territory as well.

 

                        Yes, we should have standards and credentials. No

                        we do not need to limit such qualifications to a field

                        that if completely effective as it stood would even

                        need such an emergence of ADR practice.

 

                      Madge ,   Los Angeles

                                                                  03/13/01

                      Non Lawyer mediators

 

                        I have to agree that as a non lawyer I am looked

                        upon so much more positively for my mediations.

                        Lawyers find it so refreshing to have a non lawyer. I

                        agree that it is not about billable hours but emotions,

                        feeling and empowerment.

 

                      Margaret ,   Washington D.

                                                                  02/14/01

                      Increasing dependance on law

 

                        While I agree with the need to take action to prevent

                        the "legalization" and parochialization of the practice

                        of ADR, I feel the problem of hyper-sensitivity to

                        legal pressures is more fundamental to society than

                        to the practice of any single profession. The

                        physician, teacher, therapist, and indeed anyone who

                        makes a decision that affects another person, is

                        subjected actively and passively to a nexus of laws

                        that regulate their behavior. We seem to have

                        collectively substituted legality for functionality and

                        practicality, and legally defensible behavior for ethical

                        and comassionate behavior. To me, it is no wonder

                        that these are fundamental concerns to the practice

                        of ADR, as well.

 

                        However, when surveying the landscape of the US

                        market for mediation, I wonder whether this issue will

                        be resolved not by action on the part of the

                        mediator(s), but by the consumer, for whom the J.D.

                        following a name seems to have an almost mystical

                        power.

 

                      John ,   Lubbock TX

                                                                  02/14/01

 

                        What is the root of the problem? Is it the practice of

                        Law or the practice of economics?

 

                      Paul    

                                                                  02/13/01

                      The fallacy of the right of legal dominance over

                     conflict resolution

 

                        In Canada, we find that judicial results in family

                        matters are akin to attempting to predict the

                        outcome of a slot machine. Lawyers and judges in

                        private acknowledge the system just doesn't work.It

                        is destructive and financially ruinous to both parties

                        and to the ablity of both parties to support their

                        children.

 

                        Any lawyer who suggests that only lawyers have the

                        right or expertise to handle ADR situations effectively

                        is denying their own training. Aside from their legal

                        knowledge, they are the least qualified to deal with

                        family conflict.

 

                        Family conflict is about emotions and feelings, not

                        about law.

 

                        I have found in my practice as a non-lawyer mediator

                        that I am most effective when I address their fears

                        and needs (for control, vengence or other reasons)

                        first.

 

                        Otherwise, we end up with a 'Settlement' that is

                        more likely not to be honoured.

 

                        One need only look at labour relations to realize that

                        a thin collective agreement environment has fewer

                        grievances than one where the collective agreement

                        is an inch or more thick.

 

                        My experience has been that lawyers are more

                        interested in billable hours than in helping two people

                        who used to love each other find ways to work

                        together for the sake of their children.