We’ve all heard of holistic lawyering in the fields of family law,
personal injury law, estate planning, i.e., those practices that
inherently involve the lives of individual human beings. Can holistic
law be applied in a traditional mainstream corporate practice?
Absolutely. As we all know, corporate parties involved in transactions
or conflict are comprised of individual human beings. These human
beings, be they members of the board of directors, senior management,
or employees, experience the same pain, anxiety, and desire for respect
and resolution as individuals involved in a divorce, custody battle or
personal injury case. Moreover, the core principles of a holistic
practice - - compassion, respect, forgiveness, responsibility and
healing - - empower mainstream clients to make healthier business
decisions and live healthier work and personal lives.
Is it
possible to discuss forgiveness, responsibility, and healing with the
general counsel of a Fortune 500 company? You would be surprised. In
the litigation context, those discussions typically arise out of a
desire by most mainstream corporate clients to reduce litigation costs
and to resolve conflict as quickly and efficiently as practicable. In
order to do that, one must be willing to analyze a conflict beyond the
traditional “facts and law” approach. That approach is predominantly
focused on determining what claims, defenses, or counterclaims apply to
a particular conflict. Indeed, the principal decision-makers who enter
both sides of the transaction need to discuss what they hope to
achieve, both in the short and long term. The required discussion can
serve as a reality testing process whereby a determination can be made
as to what responsibility, if any, your client has for contributing to
the conflict. Often, this type of discussion leads to an understanding
by your client that the company’s position is neither 100% right nor
100% wrong. It is through these types of discussions that there is the
possibility for compassion and understanding of the “whole” conflict.
This process, as well as a full understanding of each party’s
responsibility in the conflict, gives rise to the possibility of
accepting the past, learning from it, and counseling clients to
transform their future business practices.
It is also possible
to assist corporate clients in transforming their corporate culture.
Application of basic holistic principles can influence not only how
corporations deal with customers, vendors, providers and other
contractual partners, but also the way labor and management interact
with each other. None of this can be achieved without all parties
buying in to the importance of respecting one another, even when
holding divergent views.
One type of holistic legal practice,
collaborative law, is ripe for a mainstream corporate application. In
general, collaborative lawyers and their clients sign a pledge at the
beginning of a dispute that they will not go to court. If the parties
cannot resolve the dispute, then the attorneys agree that they will
withdraw their representation and refer the clients to other attorneys.
When collaborative law began, its most successful application
was in the family law context. However, given the increasing desire to
resolve conflict quickly, efficiently, and economically, and given the
fact that almost 95% of mainstream commercial litigation cases settle
at some point in the litigation process, mainstream lawyers and their
clients will gravitate toward collaborative law. It will become as
commonplace as the pledge that many large mainstream law firms and
Fortune 500 companies sign to attempt to resolve conflicts through
alternative dispute resolution measures such as mediation and
arbitration.
All this being said, it should be noted that
transforming mainstream legal culture is no easy task. It requires the
courage to speak from the heart and the willingness to risk, knowing
that certain mainstream clients may not be interested in this approach.
The initial “selling point” will be the positive impact that a holistic
view of legal conflict will have--and its likely consequence of
creative, non-litigious resolutions. Once this occurs, mainstream
corporate clients will begin to demand this approach. The other,
perhaps more important benefits, include healthier management,
healthier labor, and increased productivity and profits.
Healthier
people = healthier business. There are no empirical studies supporting
this last statement. However, one possible predictor of this positive
result could be the recent growing acceptance, after many years of
opposition, of the alternative/holistic medicine movement.
Initially,
many practitioners were deemed “quacks,” among other things. Now, it is
not unusual for a traditionally trained mainstream physician to have
knowledge of alternative remedies and, in some cases, to support the
use of those remedies. As with alternative/holistic medicine, the point
of treatment is not to judge either the traditional or
alternative/holistic approach as better or worse. Instead, the focus
must be on how to expand the information and options to practitioners
and clients such that they can be empowered to resolve conflict in
healthier ways.