Save The Date: February 25, 2012

By Andrew F. Amendola*

I. Introduction

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.  Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.  This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.  For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.  For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney’s increased receptivity to their client’s interests, and greater client involvement, which acts as an empowering tool, enhancing the client’s overall well-being.  The result is a more gratifying interaction and overall improved satisfaction with outcomes.

II. The Adversarial Style

The methodology of negotiation has long been associated with aggressively adversarial tactics.  This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.  Most adversarial negotiators view the process as a zero-sum, win/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]

The adversarial negotiator’s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2] Some lawyers advocate this style, professing its effectiveness in increasing their clients’ gains and avoiding exploitation.[3] It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4] the adversarial approach produces optimal results.[5]

The adversarial approach is not the optimal method for all situations, however.  The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6] It also tends to remove the client from the negotiation equation, which may result in the attorney’s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7] Furthermore, an attorney’s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: “effective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.  The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.”[9] Additionally, Kupfer found that “over 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.”[10]

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being—as well as the effectiveness—of both the attorney and the client.  The adversarial approach is often characterized as “attacking.”[11] When an individual feels attacked, a neurological reaction takes place.  In the brain, the hippocampus induces a heightened sense of alertness (described as the “fight or flight” reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12] This reaction causes extreme stress and anxiety.[13] The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which “heightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.”[14] High levels of cortisol also produce distraction, mental errors, and “impairment in the ability to remember and process information.”[15]

A. The Source of the Adversarial Mentality

The American legal system is undoubtedly based on the concept of adversarialism.[16] Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17] A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18] The sense of competition inherent in the law school experience causes significant changes in students’ attitudes, values, and motivations, reduces students’ desire for cooperation, and diminishes overall personal well-being.[19] The common teaching style instills in law students the binary, win/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]

B. Effects of an Adversarial Approach on The Client

There are many aspects of the legal process which may produce a strongly negative reaction in the client.  These aspects are called psychological soft spots.[21] For example, sometimes the legal issue confronted by the client—which brought her to seek an attorney’s services in the first place—or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22] These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23] inhibiting the attorney/client relationship, preventing the attorney from learning the full extent of the client’s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys’ counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25] The adversarial perspective fails to address these feelings because it operates in a binary, win/lose fashion.[26] This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]

C. Effects of an Adversarial Approach on The Attorney

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.  This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28] Professor Susan Daicoff notes that attorneys’ sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]

These feelings of professional dissatisfaction unsurprisingly also affect attorneys’ quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]

The adversarial mindset can cause attorneys to misread their clients’ needs; “[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.”[31] The adversarial approach encourages attorneys to “transform complex, human situations into a dry set of facts that fit into legal rules.”[32] Locked into a win/lose mentality, the adversarial attorney is incapable of assessing the client’s true needs, maximizing value, or addressing underlying sources of dispute.[33]

III. Developments in Negotiation

Negotiation need not be a deleterious process.  In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34] Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.  Among these approaches are the cooperative style, integrative bargaining, and collaborative lawyering.  These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.

A. Cooperative Style

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35] The cooperative negotiator “communicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.”[36] A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side’s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.  If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.  The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38] When presented with a cooperative opponent, an adversarial negotiator will often “increase their demands and expectations about what they will be able to obtain.”[39]

B. Integrative Bargaining

The integrative negotiator focuses more on “interests” than “positions,” using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on “opportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,”[40] essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.  In such situations, “rigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.”[41]

C. Collaborative Lawyering

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42] Its objective is “to change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.”[43]

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.  First, clients actively participate in the process and retain ultimate decision-making authority.  Second, both parties openly share all information relevant to the dispute.  Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.  Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.  Also, the threat of litigation may not be used to coerce settlement.  Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.  Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44] Similarly, the participating attorneys, though remaining advocates for their clients, are committed to “keep[ing] the process honest, respectful, and productive on both sides.”[45]

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46] Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]

Collaborative Lawyering is not without its disadvantages, however.  There are concerns that the process may violate the ethical requirement to zealously represent a client’s interests.  Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.  Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.

IV. Therapeutic Jurisprudence

Therapeutic Jurisprudence is the “study of the role of the law as a therapeutic agent,” focusing on “the law’s impact on emotional life and psychological well-being.”[48] The movement represents the idea that the law—including the rules of law, legal procedures, and the roles of legal actors—serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.  It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49] Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia,[50] Therapeutic Jurisprudence encourages lawyers to “attempt to create the most beneficial and emotionally satisfactory solution given a particular client’s interests and circumstances,” thus providing a therapeutic outcome.[51] Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52] tort law, criminal law, and contract law.[53]

V. A Therapeutic Jurisprudence Application to Negotiation

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.  A Therapeutic Jurisprudence approach which takes into consideration clients’ interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: “[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.”[54]

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55] Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56] Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.  This effort can have a significant impact on the client’s satisfaction with the resolution and the legal counsel received.[57]

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.  There are still many uncertainties and problems surrounding its application.  For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58] and its effects too difficult to measure accurately.  Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client’s constitutional concerns, the attorney’s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]

VI. Conclusion: A Measured Approach

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.  It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.  To have the greatest impact and stamina, this change must be initiated early.  Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.  Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.  While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.  Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.  Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.  Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]