Gini Nelson’s Engaging Conflicts

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three, Part Four, Part Five]

Part Six: How Practitioners Can Add Cooperative Practice into the Services They Offer. Mediators may also be interested because they may be used in Cooperative cases.

Lawyers who want to do Cooperative Practice may use or adapt DCI’s procedures. For examples of other forms of Cooperative negotiation agreements, see the Boston Law Collaborative and the Mid-Missouri Collaborative and Cooperative Law Association’s website.

Lawyers can start using a Cooperative process an ad hoc basis, which may be particularly appropriate when the lawyers in a case have previously worked well together and trust each other. If appropriate, the lawyers might convene a four-way meeting with the parties early in the case to jointly identify issues, exchange information, and plan how to handle the case in the future. At that point, they might sign a Cooperative participation agreement if they think it would be helpful.

Lawyers may also organize practice groups to promote Cooperative Practice. Such groups can help develop practice norms and procedures and help lawyers develop reputations for cooperation.

I have been giving talks to encourage lawyers to incorporate Cooperative Practice into the “portfolio” of services that they offer. I recently gave a talk in Seattle and a CLE conference call in Colorado and Cooperative groups may develop there — in addition to the ones in Wisconsin, Missouri, and Boston.

I would be happy to talk with others interested in developing Cooperative Practice for your cases. Feel free to e-mail me at landej@missouri.edu or call me at 573-882-3914.

You can go to my website to see the other articles I have written on the subject.

This concludes John’s series. Thank you, John, for sharing this with Engaging Conflicts!

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three. Part Four]

Part Five: How Cooperative Negotiation Is Different From Litigation In Negotiation.

Since a Cooperative process does not include a disqualification clause as in Collaborative cases, some people wonder if Cooperative process is any different from negotiation in litigated cases.

Although many lawyers negotiate cooperatively at times, a Cooperative process can provide greater predictability and confidence than in litigation. DCI members say that a Cooperative process creates a legal culture where cooperation is the norm. Traditional litigation-oriented practice normally does not involve an explicit process agreement. In litigation, lawyers often are not sure about the other side’s intentions and each side may feel that it needs to take tough positions to protect themselves. This sometimes creates a cycle of adversarial behavior that is hard to break out of.

Although DCI members sometimes use litigation procedures (such as formal discovery or contested hearings) in Cooperative cases, these are used as the last resort and are generally intended to advance the Cooperative process. For example, one lawyer said that a party may need some “reality therapy” of hearing from a judge at a temporary order hearing and then get right back to negotiation for the permanent resolution. When contested hearings are needed, the Cooperative process can improve the quality of litigation. One lawyer said that in trials in a Cooperative cases, the process tends to be more cooperative than in traditional litigation-oriented cases.

For more information about my study of Cooperative Practice in Wisconsin, click here.

The next part describes how practitioners can add Cooperative Practice into the services they offer. Mediators may also be interested because they may be used in Cooperative cases.

John’s series will conclude next week with “How Practitioners Can Add Cooperative Practice Into The Services They Offer”.

I posted here announcing the premier edition of my column at the work-life online magazine The Complete Lawyer, distributed to some 300,000 attorneys nation-wide. The column is co-written with Vickie Pynchon, Diane Levin, and Stephanie West Allen. Here’s the newest installment of “The Human Factor,” how each of us became mediators after becoming lawyers.

The theme of this issue of The Complete Lawyer is “Focus On a Sound Mind In a Sound Body”. There’s a great intro to the issue here at the What About Clients? blog.

The issue’s theme quote is by Susan Daicoff, author of Lawyer, Know Thyself:

True intelligence requires the ability to integrate and synthesize the wisdom of the head and the heart, the Thinker and the Feeler, and the mind and the body. We are trained to “live in our heads.”

I referred to Susan’s work here when I began my series last week on MBTI applications in legal and mediation practices. Her book, Lawyer, Know Thyself, synthesized forty years of empirical research on lawyers’ personality traits and related these findings to professionalism and lawyer well being. I’ll be writing more about her findings later in the MBTI series.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three]

Part Four: The Divorce Cooperation Institute And How DCI Lawyers Do Cooperative Practice.

The last part of this blog [Part 6] describes why the ADR field should add Cooperative Practice to the “ADR toolkit.” This part describes how lawyers can add it to your own practices. Mediators should also be interested because Cooperative Practice often involves mediation when people have difficulty resolving disputes.

Lawyers interested in offering Cooperative Practice may use or adapt DCI’s approach, as appropriate. Although DCI uses the process only in divorce cases, it can be readily adapted in other types of cases.

DCI members normally use an explicit process agreement at the outset. The agreement requires people to: (1) act civilly, (2) respond promptly to reasonable requests for information, (3) disclose all relevant financial information, (4) obtain joint expert opinions before obtaining individual expert opinions, (5) obtain expert input before requesting a custody study or appointment of a guardian ad litem, and (5) negotiate in good faith to reach fair compromises based on valid information. Here’s the full version of DCI’s principles.

DCI members value Cooperative Practice because they can tailor the process to the parties’ needs. In Cooperative cases, they use many of the elements in Collaborative Practice – such as commitment to full disclosure of relevant information, four-way meetings, joint experts, and individual coaches. Many DCI members – including many who use Collaborative Practice – find Collaborative process to be too formal and rigid and believe that it sometimes involves more of these process elements than needed. DCI members report using them only as needed in Cooperative cases and so they believe that a Cooperative process generally produces good outcomes as efficiently as possible.

For more information about my study of Cooperative Practice in Wisconsin, click here.

John’s series will continue later this week with “How Cooperative Negotiation Is Different From Negotiation In Litigation”.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two]

Part Three: Cooperative Practice And Why Some Parties May Prefer It To Collaborative Practice

Cooperative Practice is relatively new and provides a desirable alternative for some parties. The Divorce Cooperation Institute Wisconsin started offering it in 2003. The Boston Law Collaborative and the Mid-Missouri Collaborative and Cooperative Law Association began offering it in 2005.

Although a Cooperative process is often used in family cases, the lack of a disqualification agreement makes it attractive in non-family cases. For example, the Garvey Schubert Barer law firm offers a form of Cooperative Practice called Win² (Win Squared) in labor and employment cases.

Parties may prefer a Cooperative process over a Collaborative process when they:(1)trust the other party to some extent but are uncertain about that person’s intent to cooperate, (2) do not want to lose their lawyer’s services in litigation if needed, (3) cannot afford to pay a substantial retainer to hire new litigation counsel in event of an impasse, or (4) fear that the other side would take advantage of the process, particularly in cases involving serious domestic abuse. Of course, parties may prefer mediation if they want a third party to manage the process or they may prefer a Collaborative process if they want the security provided by the disqualification agreement.

I discussed these issues in more detail in an article I co-authored with Gregg Herman entitled, “Fitting the Forum to the Family Fuss: Choosing Mediation, Collaborative Law, or Cooperative Law for Negotiating Divorce Cases.” You can go to my website to see the other articles I have written on the subject.

John’s series will continue next week with his study of “The Divorce Cooperation Institute And How DCI Lawyers Do Cooperative Practice”.

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One]

Part Two: Collaborative Practice And Why Some Parties May Prefer It To Mediation

Collaborative Practice is generally a very good process. It offers a valuable alternative for parties who want lawyers to manage the process and to start negotiation from the beginning of a case. The disqualification agreement provides comfort for parties who want a barrier making it hard to use litigation and security that Collaborative lawyers will not plan how to use the process against them in court.

The Collaborative movement has developed detailed practice protocols as well as an infrastructure of professional standards, local practice groups, trainings, and publications. Many Collaborative groups normally use an interdisciplinary model in which it is expected that parties will use individual coaches and joint child development and financial experts. Collaborative Practice is thus particularly desirable for people who want a highly-defined process which may regularly involve multiple professionals.

For more information about Collaborative Practice, visit the International Academy of Collaborative Professionals.

Like mediation, Collaborative Practice is not for everyone. Despite great efforts to use Collaborative process in non-family cases, very few parties or lawyers have been willing to use the process outside of family law. Some parties do not want to use a process in which they risk suddenly losing their lawyer - especially since the other side can unilaterally “fire the other side’s lawyer” by terminating the process. Some parties may also prefer a process that does not have relatively prescribed procedures and that may encourage them to use more professionals than they would like.

John’s series will continue later this week with “Cooperative Practice And Why Some Parties May Prefer It To Collaborative Practice”.

A friend and colleague recently forwarded to me a September 2004 article Malcolm Gladwell did for The New Yorker on the MBTI and other personality tests that employers may use (Personality Plus: Employers Love Personality Tests. But What Do They Really Reveal?). I respect and use the MBTI as a tool in my law and mediation practices. Indeed, I am a “qualified administrator” of the instrument, which is a “controlled instrument” whose access and use is regulated as further defined by its publisher:

Certain assessments published by CPP are available only to users who have appropriate training and credentials, and who adhere to the principals of proper use, including knowledge of assessments and their applications.

The classifications are based on The Standards for Educational and Psychological Testing (published by APA, AERA, and NCME and available here). The Standards is written for the professional and for the educated layperson and addresses professional and technical issues of instrument development and use in education, psychology, and employment.

I believe understanding and using concepts and tools relating to the MBTI benefits attorneys, mediators and other conflict specialists. I posted here about a workshop I gave last year for the New Mexico Mediation Association on using the principles in communication. Other uses include helping clients get through misunderstandings based on type differences, identifying blind spots in the problem-solving process based on type, using type concepts to bridge cultural and gender differences by focusing on type similarities, and understanding one’s own type to better identify the kind of practice one wants.

Use of this psychological type analysis is better studied in the legal field than in the mediation practice context. The most notable law-related works are University of Florida Law Professor Don Peters’ article, Forever Jung: Psychological Type Theory, the Myers-Briggs Type Indicator and Learning Negotiation, 42 DRAKE LAW REVIEW 1 (1993); and Florida Coastal School of Law Professor Susan Swaim Daicoff’s book, Lawyer, Know Theyself: A Psychological Analysis of Personality Strengths and Weaknesses, American Psychological Association (2004). Direct works are slowly showing up in the mediation practice context, such as with Sondra S. VanSant’s Wired For Conflict: The Role of Personality in Resolving Differences, Center for Application of Psychological Type, Inc. (2003).

Gladwell, whose work I generally very much enjoy, makes good points, and I agree with much that he says. I’ll discuss his points as I continue this series exploring MBTI applications. At the same time as I appreciate his points I would reframe this discussion somewhat differently. Hence, this series. My thoughts, which I will expand on over the upcoming weeks, include:


1. No one field can explain human behavior to the exclusion of other considerations. I started out focused on sociological explanations (my BA and MA studies). Later, I got interested in psychology. Later, I got interested in the neurosciences. It’s no one of them. It’s all of them (and more, most likely).
2. Each field that has a role, it’s explanations are also affected by the other fields — it’s not additive, it’s complex, and synergistic.
3. Most people don’t want to deal with complexity, or don’t have the education or time to deal with complexity, and end up (over)simplifying, especially for explanations of how and why humans act as they do.
4. Every tool (whether sociological, psychological, or a theory about neuroscience) can be used by people who are not the most skilled or wise about its use, and can be misused.
5. Any explanation, or explainer, that/who doesn’t recognize the above, is suspect.

My thoughts also include, about MBTI:


1. Gladwell doesn’t discuss scientific principles of validity and reliability, as applied to the various instruments. I know the MBTI purports to be statistically valid and reliable, and I know it is characterized as a “controlled instrument” by the American Psychology Association, I think it is. You have to be “qualified” (includes some training in statistics) in order to administer the instrument.
   
2. I believe many who administer and/or give the workshops on the instrument have not done the more in depth study and followed the evolving theory about MBTI. Maybe they got qualified 10 years ago and just got into ruts. I had the inclination to study it in some of its more complex forms, because they made the most sense to me. At the same time, most people don’t want the complexity, don’t hear or remember the complexity, and can (rightly for them) conclude the instrument is not valuable, or is of limited value. It’s a tool — you have to practice it and then get not only good, but wise, in using it.
   
3. I also believe many who administer and/or give the workshops are wrong and/or are not understood by the participants on some practical points about the MBTI. Many friends have told me they’ve been given it by their employers, and they were not told some of the points I emphasize. I would disagree with some of Gladwell’s characterizations about what the MBTI is supposed to mean. (I also would put some different light on the mother-daughter development of the instrument. It is, to me, a much more interesting story than he reports, with broader implications — it could also be told in a way that makes his telling of it sexist and overly-dismissive of at home, independent researchers, especially women in the first half of the twentieth century.)

And, final thoughts include:


1. So, explaining or predicting human behavior is complex, a protean mix (hard wired, affected by the physical environment, affected by the social environment of cultures/societies, affected by family, affected by peers, affected by dysfunctionalities in any of them, affected by healthy versions in any of them.
   
2. I use the MBTI as a starting point, and when important I look at it/the person/the situation more closely, even very closely. It’s part of the working hypotheses I view the world with, at least some of the time. I don’t say it’s the only or even the best explanatory/predictive tool. It is one of the best for me, as a starting point — but then you have the person in the particular situation, for the particular purpose, etc. I think different people will prefer different tools.
   
3. Individuals vary in individual psychological health, experiential wisdom, courage and leadership. No one type is better than the other, there are healthy and unhealthy individuals among all types, wise and not wise among all types, courageous and not, etc.
   

I intend to post to this series weekly. I will appreciate your thoughts so please write me in the comments or privately!

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here.

Part One: Introduction

There is a growing interest in adding “Cooperative Practice” to the ADR toolkit. Cooperative Practice is related to – but somewhat different from – mediation and Collaborative Practice. All three processes encourage parties to resolve disputes by negotiating agreement, but they have different ways of doing so.

In mediation, an impartial third party helps parties to negotiate an agreement. In Collaborative Law, at the beginning of a case, lawyers and parties sign a “participation agreement” to negotiate in good faith and disclose all relevant facts. The participation agreement includes a “disqualification” clause which provides that if any party decides to litigate, the Collaborative lawyers are disqualified from representing the parties, who must hire new lawyers if they want representation in litigation. The formal difference between Cooperative Practice and Collaborative Practice is that Cooperative Practice participation agreement does not include the disqualification provision.

Each of these processes has advantages and disadvantages. I do not suggest that Cooperative Practice is necessarily preferable to the others. Rather, I think that some parties may prefer it in some cases – and that it is useful for the dispute resolution field to include this in the “toolkit” of desirable processes. At the end of this series, I will describe how individual practitioners can add Cooperative Practice to the set of services you offer – and how it can be useful for mediators.

Mediation generally is a very good process. Many parties like it because it is managed by an impartial party who may diffuse adversarial tensions when both parties (or none of the parties) are represented by lawyers. It is very flexible and has been used in virtually every kind of dispute. Some people may prefer another process, however, for several reasons. In some situations, the parties may each want lawyers to manage the process and would not feel secure if a mediator is primarily in charge. Mediation may not be appropriate when one party wants to take advantage of a power imbalance and a weaker party does not have a lawyer. Abuse of power may be a particular concern in cases involving serious domestic abuse. In the litigation context, mediation is often used late in the case, after much time, money, and emotion have been spent, so some parties may want a process that focuses on negotiation from the outset.

John’s series will continue next week with “Collaborative Practice And Why Some Parties May Prefer It To Mediation”.

From time to time, a Guest Blogger will share voice at Engaging Conflicts. Previous Guest Bloggers are introduced here (Rawle Andrews, Jr. and David River), and here (Thomas Kosakowski).

John Lande is Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri School of Law. He teaches courses on lawyering practice, non-binding methods of dispute resolution, and dispute system design. His scholarship focuses on institutionalization of mediation in the legal system and how lawyering and mediation practices affect each other.

John has written a 6-part series for Engaging Conflicts on the growing interest in adding “Cooperative Practice” to the ADR toolkit. As he explains in his series, Cooperative Practice is related to — but somewhat different from — mediation and Collaborative Practice. As he says, “all three processes encourage parties to resolve disputes by negotiating agreement, but they have different ways of doing so.” The series will begin tomorrow.

John is a leader in following, researching and writing in this field. Previous posts about John Lande and the Cooperative Practice movement include:

• The Growing Cooperative Legal Practice Movement (April 2, 2008)
• John Lande Awarded the CPR Institute’s 2007 Award for Outstanding Original Professional Article (March 2, 2008)
• Principles For Policymaking About Collaborative Law and Other ADR Processes (May 9, 2007)
• The Future of Collaborative and Cooperative Law After Colorado Bar Association Ethics Opinion 115 (May 8, 2007)
• Collaborative Law Established, Cooperative Law Now Growing (March 6, 2007)
• Collaborative and Cooperative Law — Promise and Perils (January 22, 2007)

Additionally, I interviewed John for Engaging Conflicts Today, and share the full interview here. Here’s the pdf of that issue of Engaging Conflicts Today: Engaging Conflicts Today INTERVIEW.

And here’s the full text of the interview … Read more »

The University of Missouri School of Law’s Prof. John Lande has been giving talks based on his study of Cooperative Lawyers in Wisconsin. As reported in the university’s newsletter, John:

will give presentations at the Seattle law firm, McKinley Irvin, on April 2, at the annual conference of the ABA Section of Dispute Resolution on April 6, on a conference call CLE to Colorado dispute resolution practitioners on April 9, at the Connecticut Bar Foundation / Quinnipiac Law School ADR Symposium on May 16, at the annual conference of the Association of Family and Conciliation Courts on May 29, and the Kansas City Metropolitan Bar Association ADR Committee on July 2. He previously gave talks on this subject to the Institute of Continuing Legal Education in Georgia, Wisconsin Divorce Cooperation Institute, and the Harvard Program on Negotiation. For more information about Cooperative Practice, see http://www.law.missouri.edu/lande/publications.htm#ccl. Additional materials will be posted there in the coming weeks.

Please note that anyone may participate in Colorado’s CLE April 9 conference call without cost (other than one’s own phone charges). It will take place at 1 pm Central Time. To participate, call 1-218-486-1300 and enter the code 521887. There will be a chat room operating at the same time as the conference call, though it is not necessary to be in the chat room to participate in the call. Free registration is needed to participate in the chat room, which can be accessed at http://www.coadr.com/groups.  [NOTE: the link may not be live yet -- check back if it is not.]
John will start guest blogging at Engaging Conflicts later this month. Some earlier Engaging Conflicts post about John and his work are here (John Lande Awarded the CPR Institute’s 2007 Award For Outstanding Professional Article), here (Collaborative and Cooperative Law– Promises and Perils), and here (Exploring Innovative Lawyering: John Lande Engaging Conflicts Today Interview).