Friday, January 30, 2015

Accessing justice

A recent artical in the ABA Journal  on movements to license legal technicians to perform limited legal services cited a Bar Foundation study showing that most people encountering what the study called "civil justice situations" either handled the situation themselves, did nothing about it, or enlisted the help of friends and family. Only about 22% sought the assistance of people outside their social network. Naturally the ABA article viewed this situation as a potential opportunity for the legal profession to meet unmet legal needs, while questioning whether opening up opportunities for paralegals or other non-lawyers to serve these needs should be allowed.

To me, however, data like that found in this study suggests that the traditional justice system is either too intimidating, too expensive, or too complicated to represent an attractive solution for most people. That means there is a great need to make the traditional justice system less expensive, less complicated, and more accessible. There also appears to be a need to empower people to handle these "social justice situations" more competently themselves (since most people apparently are already handling these situations themselves anyway, for better or worse).

The data suggests opportunities here for mediators and other conflict resolution specialists as well as for lawyers and legal services technicians. If people are generally resorting to self-help anyway, and would generally prefer to solve their legal problems outside of the traditional justice system, it follows that they could use some advice on ways of doing that better. There are also opportunities to teach the general public more about how to solve common legal problems, since is appears that most people are going to run into them, and most of those people are going to try to deal with those problems themselves.


Graphic by Jeff Dionise from the ABA Journal article linked above

Saturday, January 24, 2015

Technology

If somebody were to ask me (actually somebody did ask me) about the future of conflict resolution, my answer would have to include technology. Technology is already enabling us to do things that would have been unimaginable only, say, 20 years ago. We now carry devices in our pockets that enable access to virtually any available information. I can tap my cellphone to pinpoint my location on an interactive map and find out instantly how long it will take me to get anywhere by any available mode of transportation; I receive updates on appointments or plane schedules without even asking for them; and I can instantly communicate, via Twitter, or Linkedin or Facebook, or any number of other means, with virtually anyone.

Technological change has already started to revolutionize the legal system. Tools like RocketLawyer and LegalZoom are enabling people to perform many functions themselves they previously could not do very well without a lawyer. Companies like eBay and Amazon have already set up online dispute resolution procedures that are handling many times the number of conflicts between buyers and sellers than can be handled by any court. New software is being developed every day to create forms and negotiate agreements. Because technology enormously increases the efficiency of generating legal documents, automation is already putting lawyers out of work, while creating new opportunities for some. Thus far these technological advances seem best designed to deal with smaller scale conflicts that people have not traditionally been able to bring to court anyway. For the most part, these changes help people manage legal problems that they would otherwise have had to handle on their own. But they also have the ability to scale up to problems that currently tend to go to court.

We can also already see that even the traditional court system is slowly automating more and more of its functions. Electronic filing is becoming the norm.Web interfaces are becoming more user-friendly. Eventually these more streamlined case processing functions should allow the courts to update antiquated rules and procedures and make the justice system more efficient.

Given the rapid pace of change, it would be perilous to predict what technology might allow us to do, say 20 years from now. But one prediction I would make about the generation that is growing up with access to all the world's knowledge in their pockets, a generation that understands the power of crowd-sourcing, that is adopting the sharing economy, that believes in do it yourself solutions, and that demands instant answers to almost any problem: that generation is not going to have much patience with ways of doing things that were more appropriate to the 19th century.

That generation should be open to experimenting with non-traditional methods of resolving both simple and complex conflicts that people currently still associate with old-fashioned lawsuits. The good news for mediators is that the tech-savvy generation should be receptive to mediation as a way to resolve conflict. This generation has grown up expecting instant gratification, empowerment, and cooperation. They would be expected to embrace ADR processes that are faster than court; more centered on the needs of the disputants; and less adversarial.

But to retain the favor of tomorrow's clientele, mediators themselves are going to have to embrace technology or we might get left behind by even more efficient ways of resolving disputes. We think of mediation as an advanced form of conflict resolution compared to the creaky old court system, but how advanced will mediation seem when someone comes up with an algorithm that decides cases for disputants? People who are used to being able to get an instant answer to any question from the palms of their hands, are going to be receptive to those kinds of solutions.

For now, I don't even have any particular "mediation apps" to recommend, though it seems obvious that mediators, like everyone else, will increasingly be doing more business online and using the tools their clients are using to schedule and conduct meetings, and to share information. But part of the challenge for mediators in the future will also lie in persuading disputants of the value of old-fashioned talking remedies for conflict--methods that can be traced back to traditions like sitting around the campfire smoking a peace pipe. We have to work even harder to persuade people to slow down and try methods as ancient as that, while at the same time remaining open to new techniques, because we live in a rapidly-changing world that puts a premium on innovative solutions.


Wednesday, January 21, 2015

Better politics

Everyone is talking about President Obama's little dig at his opponents when he reminded them of his two election victories. But the part of the State of the Union speech that should get mediators excited is the following:


"So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for - arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision. Imagine if we broke out of these tired old patterns.

 Imagine if we did something different. Understand - a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

 A better politics is one where we appeal to each other's basic decency instead of our basest fears. A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.

 A better politics is one where we spend less time drowning in dark money for ads that pull us into the gutter, and spend more time lifting young people up, with a sense of purpose and possibility, and asking them to join in the great mission of building America. If we're going to have arguments, let's have arguments - but let's make them debates worthy of this body and worthy of this country.

 We still may not agree on a woman's right to choose, but surely we can agree it's a good thing that teen pregnancies and abortions are nearing all-time lows, and that every woman should have access to the health care she needs.

 Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it's possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.

 We may go at it in campaign season, but surely we can agree that the right to vote is sacred; that it's being denied to too many; and that, on this 50th anniversary of the great march from Selma to Montgomery and the passage of the Voting Rights Act, we can come together, Democrats and Republicans, to make voting easier for every single American.

 We may have different takes on the events of Ferguson and New York. But surely we can understand a father who fears his son can't walk home without being harassed. Surely we can understand the wife who won't rest until the police officer she married walks through the front door at the end of his shift. Surely we can agree it's a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America's criminal justice system so that it protects and serves us all.


 That's a better politics. That's how we start rebuilding trust. That's how we move this country forward. That's what the American people want. That's what they deserve."





Monday, January 5, 2015

Selma

The new movie Selma depicts the events that led to passage of the Voting Rights Act in 1965. There has been some controversy about the historical accuracy of parts of this movie, but I don't have much patience with those kinds of criticisms. Selma is not a documentary, even though it is based on historical events and does use some documentary footage in one part. Therefore, filmmakers are entitled to whatever artistic license they feel they need for the sake of heightening the drama. The point of the movie, which it succeeds at brilliantly, is demonstrating the power of a social movement to create change. In the process, the movie also puts Martin Luther King, Jr. front and center so that we can understand and feel the leader's personal struggle to balance the desire for change, the safety of his followers, his family's needs, and his sense of the most successful strategy for achieving the movement's goals.

As a lawyer, I can't help focusing on the role of the courts and the political system in the drama. The movie understandably puts the court proceedings somewhat in the background, except that the court case pops out at one point in the middle of a series of meetings and preparations. The movie offers a somewhat confusing portrayal of the aborted second march (based on the historical record, that day probably was very confusing), seeming to suggest that King obtained spiritual guidance that persuaded him to turn back. That may be true, but it is also true that he was thinking about the temporary restraining order he would have been violating by proceeding. Then we see the courageous Federal District Court Judge Frank Johnson (played by Martin Sheen) hearing a parade of witnesses before issuing an order that permitted the third march.

Was there ever an opportunity for peaceful resolution of this conflict? We see President Johnson acting at times a little bit like a mediator between King and Governor Wallace, but no real attempt was made at creating a dialogue that could resolve the dispute. The protesters had demands that could not be denied, and the local authorities were determined to resist those demands as long as they could. What the movie shows is that the state's violent resistance to the legitimate demands of citizens for voting rights only ended up helping the protesters achieve their goals.

Martin Luther King was not averse to negotiated resolution of conflict. But despite his strategy of non-violence, he did not exactly renounce more aggressive and adversarial methods either. In fact, the strategy of non-violent resistance was deliberately confrontational, and designed to provoke a violent reaction. That is why it worked. This is shown in the movie when King meets with two SNCC organizers and asks whether Sheriff Jim Clark in Selma was more like Commissioner Bull Connor, whose men had been caught on film brutally attacking protesters in Birmingham the year before, or like  Police Chief Laurie Pritchett, who had effectively defused protests in Albany, Georgia, by adopting a restrained policy toward the protesters. John Lewis responds that Clark was more like Connor, and that helped King decide that Selma was the right place to organize protests.

In the end, it was not the court case, or the peaceful protests, or the legislative process in Washington, that caused voting rights to move to the forefront of the nation's priorities in 1965. It was the first attempted march, the one that barely made it across the Edmund Pettus bridge before being met with horrific police violence, that shocked the nation into responding. It was violence that prodded the legal and political system into putting the laws in place that ultimately bring a measure of justice needed to reduce that violence. And it is the tension between the deliberate use or provocation of violence to achieve a movement's goals, and the desire to use the law to create a more just and peaceful solution, that creates much of the thought-provoking drama shown in the movie Selma.