Healing and the Law
Since the mid 1980's organizations and movements have developed in
the United States which reflect a desire to
transform the practice of law into a healing, helping profession. There is growing international interest
in this; it started country by country, including Canada, Australia, Italy,
Brazil, Thailand and Sri Lanka, and now is worldwide through the
Therapeutic Jurisprudence movement (bringing psychology into the training of lawyers and the practice
of law) and other initiatives.
A landmark book that supported the movement was TRANSFORMING PRACTICES,
by Steve Keeva, an editor of the American Bar Association. Sobering statistics
in it, for example that the rate of suicide among lawyers was higher than
for any other profession in the US and that the majority of lawyers in
California would not encourage their children to be lawyers, confirmed
the concern that pervaded the profession. As part of recognition of the
problem, the American Bar Association worked with state bar associations
to create offices or sections in state bar associations to support lawyers
facing depression or addiction. Thos sections or programs are now well
established. Mr. Keeva's book, and others around that time, encouraged
lawyers to slow down, to keep the big picture, the overall well-being
of their clients in mind. Lawyers were encouraged to use methods like
meditation to calm their minds and be fully present for their clients.
By 2000, some law firms and non-profit organizations were sponsoring meditation
retreats for lawyers.
Among the organizations that sprung into existence from the 1980's
to 2000 were the International Alliance of Holistic Lawyers, the Renaissance
Lawyers Society, and the Project on Integrating Spirituality, Law and
Politics. National and international conferences and retreats sponsored
by these organizations and others fostered networks of like-minded lawyers,
law professors and judges who were looking for better ways for law training,
law practice and the judicial system to serve society and provide for
the overall well-being of the law practitioner. In 2001 I heard from a
law professor that in his experience, students were going to law school
because they were idealistic and wanted to do something to help society,
but because of the system of law training, most law students by end of
the first semester had set their ideals aside in order to get through
the law education process. Many intended to return to their ideals on
graduation, but by then perceived financial and professional pressures
prevented that. Another law professor who was a psychiatrist did a study
of effects of law school on law students and found that by the end of
the third semester, ½ way through, they are put down their emotions
and were completely in their "head" caught in the training to
plan the best response to anyone else's position. She noted that losing
contact with emotions is the definition of depression. It is also generally
known that loosing contact with emotions means one cannot feel the emotions
of the other and that means one is not able to be empathetic. People can
readily sense if someone is empathetic. The lack of empathy resulting
from the rigors of law training in the second half of the 1900's,
I believe is an important factor in the widespread public disparagement
of the profession, and the feeling of being unsafe that many feel when
required to interact with a lawyer.
However that is all changing in a very wonderful way. Among the movements
to bring the concept of healing and transformation of the profession to
law students, in about the year 2000, law faculty in the United States
created an organization called
Humanizing Legal Education, which then became a section of
the Association of American Law Schools called
Balancing Legal Education, with the objective of transforming law school curricula to include philosophy,
psychology and deep ethics.
Before these developments, the
International Academy of Law and Mental Health, based in Canada, started arranging bi-annual meetings to bring together
physicians, psychiatrists, psychologists and lawyers, law professors and
judges to look at how the legal system and the practice of law functioned
from a therapeutic and mental health point of view. Thos meetings are
held all over the world. The 31st Annual Meeting was at New York University
Law School from June 29 to July 4, 2009. By then the Therapeutic Jurisprudence
movement had connected with the International Academy of Law and Mental
health and many of the presenters were active in that movement and some
came from the International Alliance of Holistic Lawyers. The movement
for Therapeutic Jurisprudence
integrates law and psychology. As a result of these activities and others, Susan Daicoff, on the faculty
of Florida Coastal University, created the concept and phrase,
Comprehensive Law Movement, to include all the aspects, organizations and lawyers involved in this
transformative process. This has now come to be called
Integrative Law.
Among the other movements which have been impacting the legal system, and
which grew out of the desire for a healthier legal process, are the
collaborative law movement, founded by Atty. Stu Webb in Minneapolis, MN. This is now expanded
from family law to commercial matters. In collaborative law the lawyers
help opposing sides reach agreement and failing that are not available
for litigation. Another movement is the
restorative justice movement, which opened the door for healing between victim and offender and for
more flexibility in sentencing. The Restorative Justice movement has brought
the concept of healing into the criminal justice system by setting up
processes for the defendant and victim to interact in a safe environment
in the course of determining sentencing or during incarceration--with
the result that the victim sees the defendant assuming responsibility
and also may receive the healing benefit of an apology.
Sentencing circles, based on ancient practice of indigenous people of Canada, were introduced
the Boston, Massachusetts juvenile justice system early this century.
They allowed for the victim, convicted juvenile defendant, parents or
respected elders, and lawyers to sit in a circle and reach agreement on
the sentence recommendation to the judge. In this process healing of the
victim could occur through the defendant taking responsibility. The nature
of our criminal justice system, where the state steps in to prosecute,
the victim is not in control of any part of that process, and the defendant
is encouraged by the nature of the process to deny culpability, is not
conducive to the defendant taking responsibility or to the victim being
fully seen and receiving healing communication.
Compatible with these developments has been the growth in
Alternative Dispute Resolution, especially
mediation, and also
arbitration. Part of the shift to Alternative Dispute Resolution has resulted from
the backlog of courts, and the high cost of litigation. It is generally
understood that 85% to 90% of cases settle before judgment. Many of these
settle through mediation, which enables parties to speak directly to each
other and solve their disagreements in a safe atmosphere before a neutral
party. It is confidential, and the parties may meet together with the
mediator or they may be separated into private
caucuses with the mediator. The mediator is not there as a judge, rather as a facilitator.
The resolution typically will be crafted by the parties, not decided by
the mediator. Mediation has become much more popular in many countries
around the world. There are many mediation training programs for lawyers
and for others in society and interest in allowing the mediation process to be
transformative, that is effect a change in the parties' relationship. Mediation is
the norm in some states for commercial and family litigation. In New York,
the Federal District Courts and the New York State Supreme Courts, Commercial
Divisions in and around New York City have mandatory mediation programs
where cases are referred to mediators who are on
court approved mediator panels. Mediation in other states is being offered, or parties are being required
to consider it, before court systems will proceed to judicial determination.
Teenagers are trained in Peer Mediation to resolve conflicts in schools.
(Arbitration is more like the court process in that arbitrators make a
decision that binds the parties, and there is a formal discovery process
governed by the applicable arbitration rules and the decisions of the
arbitrators.)
There is increasing awareness in the legal profession of the benefits of
techniques for law professionals, especially mediators, to be fully present.
Those techniques involve calming the mind through various forms of meditation
and contemplative practice and through education programs that teach legal
professionals how the brain works and a basic understanding of psychology,
including what is transference, and how do we really perceive things?
It is an exciting time of change in our profession and I feel especially
fortunate that my personal interests in mediation, meditation, healing
and psychology,
(www.HansenHealing.com) are in alignment with current developments in the legal profession.
These movements are part of the growing national and international awareness
that a healthy balance is needed in the professions, the business world
and our economic systems in order to support a healthy and sustainable
society on this planet.