What I'm Doing These Days and Why

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What I'm Doing These Days and Why By Pauline Tesler, JD IACP President, 1999 - 2003

I come from a family of lawyers. My first paid job as a teenager was in my uncle’s law office, typing answers to interrogatories. My temperament (highly verbal, ambitious, in love with logic and argumentation) combined with growing up among close to fifteen uncles and cousins who had chosen law as their work made this profession seem somehow safe: familiar and at the same time prestigious, respectable. But I chose law for reasons quite different from theirs. During the political upheavals of the late sixties and early seventies, I was drawn to activism and yet was too cautious to risk civil disobedience and jail. It was the moment when public interest law was being invented by a visionary cohort of bright young lawyers as a way of engaging the big social and political issues of the day. With the license to practice law, my new heroes were calling the government to account by filing ingenious lawsuits— stopping it in its tracks with skillful theories and reasoning. What power! What heady times! Right from the start, law meant for me having the tools with which to accomplish important social change, all by myself, needing nothing more than my intellect and skills of argumentation. Going from law school into the National Center for Youth Law, I spent the next seven years working long hours for little pay on law reform, major impact and test-case litigation and appeals on behalf of impoverished children and families. This was exhilarating work, David taking on Goliath, and exactly what I’d envisioned as my calling. Then came the Reagan administration, the termination of federal funding for programs like mine, and partnership in a small, egalitarian feminist family law firm. There, I put my hardball litigation skills to work in a world with no villains and no heroines—only flawed human beings in a flawed legal system operated by imperfect judges, producing imperfect outcomes at great cost to all participants. It took more than a decade of success in divorce litigation for me to understand what was wrong with this picture. I knew my clients seemed angry and unhappy even when we achieved great victories, but it wasn’t their suffering that propelled me into what I now recognize as my real 4

Reprinted from The Collaborative Review, Volume 14, issue 2, Fall 2014

calling. By the early 1990’s I myself was experiencing the consequences of unremitting stress and vicarious trauma in my work life: insomnia, sleep disturbances, and weakened immune response that put me to bed with a severe case of pneumonia in the midst of my last and worst litigated divorce, the custody dispute from hell. The quest I then embarked upon-- to find out how other cultures dealt with resolving the inevitable disputes arising out of fractured personal relationships-- grew from a hope of finding some other, better way to make use of my dispute resolution skills, a way that had integrity and that grew out of my own values and those of my clients. I didn’t find what I was searching for in my exploration of Jungian archetypal psychology or in my studies with a transpersonal social anthropologist, though I learned a lot that later proved useful. In retrospect, I was weeding the garden and tilling the soil, making it ready to grow something entirely new. That something was interdisciplinary team Collaborative Practice. The seed for what grew was planted in 1993 when I saw an article in a legal newsletter describing a talk about Collaborative law, given at a conference by a Minnesota lawyer named Stu Webb. I understood as I read it that his inspiration, the disqualification of the lawyers from going to court, could open untold new possibilities for constructive lawyering, and I knew immediately this was the work I would do from now on. I also sensed that my ongoing explorations in the psychology and cultural anthropology of conflict resolution would nourish and enrich my work as a newly-hatched Collaborative lawyer. Soon, I was immersed in organizing a practice group and learning with my colleagues the craft of the Collaborative lawyer, discovering its principles and best practices together as we worked on our first cases. Over the next five intensely exciting years, my professional life and identity metamorphosed in unexpected directions. My curiosity about what it means to be a lawyer, my longstanding interest in understanding the psychology of conflict resolution, my comfort and experience with

What I'm Doing These Days and Why (continued)

the reality that a small group of determined people can change the world, and my skills as an appellate lawyer— all came together in a creative burst of writing about the theoretical and practical workings and significance of the Collaborative law model. I spoke at conferences. I met Nancy Ross and Peggy Thompson, the originators of the interdisciplinary team model for mental health coaching and financial services in divorce, and we saw immediately that their work and the work of Collaborative lawyers were two parts of the same big idea about transforming how divorce is understood. We joined with Stu Webb and Mark Hill to teach interdisciplinary team Collaborative Practice, and soon connected with Talia Katz, who worked with us to develop a more organized and streamlined training model. Meanwhile, Peggy, Nancy, I, and about twelve other Collaborative colleagues in the Bay Area formed a monthly lunch and networking group that within just a few years evolved into IACP. Jenni Jackson and I launched the Collaborative Review. And before the ‘90s ended, IACP had its first Forum, in Northern California. These were heady, fast-moving times. By the turn of the millennium I had completed writing a manual for Collaborative lawyers (referred to by some as “the blue book”), published by the American Bar Association and now about to go into a third edition. Peggy Thompson and I wrote a book on Collaborative team practice which was published by Harper Collins. And I was on the road constantly, training lawyers and others in the Collaborative model, on my own and with mental health and financial colleagues, all over North America, the UK, Ireland, Switzerland, and places beyond. What became clear to me by the mid 2000’s was that I had a few entirely unexpected gifts. First, I was passionately articulate about what I knew was the transformative power of the Collaborative team model-- for professionals as well as for clients. Second, I had a cast of mind that saw connections, patterns, and practical applications for the voracious reading I was doing across many fields not ordinarily considered especially relevant to the work of a lawyer. Third, I could translate my understandings into practical training programs and workshops that often inspired other lawyers to see the connections I was seeing between who we are as individuals and the quality and depth of the work we can do as Collaborative lawyers. And fourth, because of the success and recognition I’d received for my work as a law reform lawyer and as a divorce litigator, I could challenge and influence traditional hardnosed litigators in a way that they could not dismiss easily, much as they might

want to. As I reflected on the meaning of the work I was doing, I realized that I had become a change agent within the legal profession. By this, I mean that while other trainers and leaders in the Collaborative movement for the most part found the core meaning of their work to be in its positive potential benefits for divorcing clients, my own most passionate commitment was to changing how lawyers think, feel, and behave—making the legal conflict resolution experience better for clients by changing the legal profession itself. Then, in 2005, a keynote speaker at the sixth IACP Forum in Atlanta, Georgia, gave an address that profoundly reshaped my professional life and work. Robert Benham, the first African-American Chief Justice of the Georgia Supreme Court, explained to us that in every human culture there have always been three core professions: religion, medicine, and law. The ancient, noble, and true purpose of religion, he said, is to heal the soul. The ancient, noble, and true purpose of medicine is to heal the body. And the ancient, noble, true purpose of law is to heal breaches in the social fabric. But, he told us, our profession lost its way in the mid to late 20th century. Law, as it is codified in the statutes and appellate decisions we lawyers work with represents in Justice Benham’s view the floor, the minimum behavioral expectations in any civilized society, the level of conduct below which you may not go without running afoul of criminal, contractual, regulatory or tort law. The law, properly understood, defines what we must and must not do but says nothing about what we should do—about the level of conduct we should aspire to if we wish to live in a socially responsible manner, in accord with our own core values. The legal profession at some point in the latter 20th century began to define its purpose as seeing how much lower the floor could be pushed. It became itself a big business, working to advance the interests of increasingly enormous corporate clients. Justice Benham saw the Collaborative Practice movement as a beacon within the legal profession, occupying the space between the floor that is The Law, and the highest values that our clients may be inspired to honor during our work with them, whether transactional or in the realm of dispute resolution. He saw us as an avant garde, showing lawyers how to reclaim law as a healing profession. Justice Benham’s profoundly simple analysis of what was wrong with the legal profession and what was needed to fix it took root and grew within my own thinking, 5


teaching, and writing. At the same time I began exploring the burgeoning knowledge about human behavior emerging from the domains of evolutionary neuroscience, positive psychology, body-mind awareness practices, and decision science, incorporating ideas from these disciplines into advanced Collaborative workshops and institutes as well as keynote speeches and articles. My earliest writing and teaching had put forth the idea that becoming highly effective at Collaborative law was not simply a matter of skills training. It was necessary for lawyers to experience a paradigm shift--a transformation in external behaviors that could emerge only from a profound transformation in one’s inner sense of the lawyer’s proper role in helping couples and families navigate the shoals of divorce. That writing and teaching turned on four organizing questions (Who am I? Who is the client? What is the task? How do I do the task?), questions that involved both inner and outer dimensions. Working with these four questions and the answers that excellent Collaborative lawyers could be encouraged to discover for themselves began to take shape for me as a method for reclaiming law as a healing profession. The advanced seminars and workshops that grew out of my encounter with Justice Benham’s ideas and my growing interest in neuroscience, positive psychology, systems theory, and related fields, were to my mind the means for inspiring lawyers to embrace the profound inner shifts in purpose and role definition that constitute the paradigm shift I’d first written about in the late 1990’s. Synthesizing perspectives from diverse fields into practical training modules for lawyers, and co-teaching with a gifted psychiatrist colleague, Tom Lewis, I learned to my surprise in the mid 2000’s that although I had imagined my teaching would appeal primarily or exclusively to Collaborative lawyers, the growing audience for my workshops and trainings also included many mental health and financial professionals, as well as mediators, judicial officers, and commercial and public service lawyers. There came a point about four years ago when I realized that teaching this growing body of material to practicing lawyers had become my mission and purpose. My way of teaching it was uniquely linked to my personal journey from public interest lawyer to family law litigator to Collaborative lawyer, to pioneering Collaborative Practice leader, writer and trainer with my roots in the nittygritty of litigation and appellate practice and my head in the clouds of expanding scientific knowledge about the human organism and the human condition as it can 6

illuminate conflict and its resolution. I also saw that while Collaborative lawyers are in the vanguard of restoring law to its purpose as a healing profession through what we’ve learned about helping clients reach resolution without resort to the courts, the Collaborative model itself -disqualification being its defining characteristic-seems unlikely to extend far beyond the domain of family law anytime soon. Sharing what I have to teach with my colleagues in the Collaborative movement remains central to my work, and goes to the heart of making the transition we know as the Collaborative paradigm shift. At the same time, it is clear that what I teach can help lawyers in many other domains to make a similar inner shift from warrior to peacemaker, regardless of whether they ever embrace the specific service-delivery model that we know as Collaborative Practice. We lawyers are taught in law school and on the job how to extract from our clients’ operatic narratives of fractured human relationships those facts that constitute justiciable causes of action, and how to ignore the rest of the conflictsaturated story, which is defined in law as irrelevant because non-justiciable. That education makes us into dispute resolution professionals who are tone-deaf to the reality that if we limit our work to resolving the legal issues presented by our clients, the human conflict they are living through is likely to persist and even to be inflamed by our methods. Using a small and often clumsy toolbox—the highly adversarial, abstract, ultra-rationalist, and unempathic tools taught to us in law school—lawyers every day wreak unintended and irreparable harm to the web of human connections that are the essential foundation for healthy people, families, and communities. Research shows that the costs to the commons of allowing this core profession to remain essentially untrained in providing effective conflict resolution services for relational disputes are immense and unacceptable. Billions of dollars are spent annually on legal fees for paperwork that scholars and judicial officers agree is rarely useful and fuels acrimony between disputing parties. The economic costs extend to the workplace, where people embroiled in highly adversarial pretrial proceedings become depressed, distracted, frequently absent from work, and unable to function creatively on the job. In the community, disputing parties are unavailable to coach little league, to work in the PTA and in the classroom, to volunteer at church soup kitchens or participate in Rotary and other


service organizations. In families, not only parents but also children experience spikes in hospital admissions for serious physical illnesses related to stress and depressed immune functioning: heart attack, stroke, pneumonia, asthma attacks, etc. The number of people in this country adversely affected each year by lawyers trained in methods that inflame rather than resolve conflict is mind-boggling. Fully half of all marriages end in divorce; except for Collaborative lawyers, most divorce lawyers are tone-deaf to the human harm caused by treating divorcing spouses as if they were Apple v. Samsung or an automobile accident. Family lawyers are not the only lawyers who have undertaken to work in the realm of fractured human relationships. Similar harms to the essential web of human connections in a community can be seen in will contests, small business and partnership dissolutions, neighbor disputes, elder abuse matters, family business succession disputes, and much more. Like us, our colleagues who handle those disputes are working with legal issues that represent the tip of an iceberg of deep human conflict. And none of us have been prepared by our professional education with even a minimal toolkit sufficient to do the job of peacemaker that such conflicts require from us, the designated profession for healing breaches in the social fabric. The lawyers who do this well-meaning but often harmful work damage themselves as well as others. The American Bar Association and Johns Hopkins University have developed disturbing data about the exceptionally high levels of depression, dissatisfaction, substance abuse, and other indicia of dysfunctionality that rise in law school and that persist at levels much higher than in the general population over lawyers’ careers. Depressed, alcoholic, armored, and angry lawyers cannot be expected to facilitate respectful, civilized negotiations that can restore harmony between disputing parties. The Association of American Law Schools has noted these disturbing trends, and is working on a long term plan to reform some—but not nearly enough—aspects of legal education that give rise to the problems sketched above. Law schools seldom are in the vanguard of change, and reforming legal education will take time to bear fruit. It will be many decades before we see norms of attitude, mental health, and behavior alter to a significant degree among newly-minted lawyers. None of us can afford to wait that long. Two years ago, I developed and became director of a new nonprofit program,

the Integrative Law Institute at Commonweal [ILI]. ILIʼs programs target the hundreds of thousands of lawyers already licensed to practice law in the U.S. and the tens of thousands more who graduate from law school each year. ILI’s mission is to reclaim law as a healing profession by building a new integrative jurisprudence for legal conflict resolution in the realm of compromised human relationships, and by teaching lawyers (in ways they can hear) a new repertoire of scientifically grounded, humanistic, practical tools and skills that can help people reach meaningful agreements that last. Building on the knowledge base developed over two decades by committed Collaborative professionals, ILI’s programs teach practicing lawyers ways to help ordinary people embroiled in interpersonal disputes to reach respectful, deep and durable resolution, not just of abstract legal issues but of the human conflict that fuels the legal dispute. ILI’s introductory workshop, called “Law and the Human Brain: Neuro-Literacy 101 for Lawyers, Mediators, and Judicial Officers,” is its entry-level course in a comprehensive program to certify lawyers in Integrative Law. ILI’s offerings include the many Collaborative workshops and trainings I’ve developed over the past fifteen years. But its mission goes beyond that to present what I believe is the first coherent program for teaching practicing lawyers—both within and beyond family law—a full spectrum of competencies that support transformation from adversarial lawyers into peacemakers, and that support building a flourishing practice of law as a healing profession. ILI’s lawyer certification program, much of which carries MCLE credit, involves a core sequence of our own workshops and seminars taught by me and a few esteemed colleagues, followed by earning additional CE credits with ILI’s growing roster of “certification partners”—including creative groundbreakers such as positive psychologist Dacher Keltner and communications theorist/teacher Sharon Ellison. Integrative Law as I understand and teach it includes many vectors long accepted as directly relevant to the work of Collaborative lawyers and mediators (such as advanced mediation, systems-based Collaborative team practice, and interest-based negotiations), some vectors more recently recognized as important for becoming a peacemaking conflict resolution professional (such as Powerful NonDefensive Communications, mindful awareness practice, and narrative mediation), and some that have appeared in conference workshop programs but which have not yet been taught coherently in practical ways that help lawyers 7


build a new “Integrative law Toolbox” (such as decision science, neuro-economics, and triune brain theory). The Integrative law certification program also includes practice transformation coaching and social media skills development. Many talented and committed colleagues have been pioneering teachers in one or another of these vectors. IlI’s unique contribution is to see the connections among these vectors: to see that taken together and taught coherently to practicing lawyers, they are the means for reclaiming law as a healing profession. Another way of expressing IlI’s mission is that its certification program connects currently “siloed” vectors of essential learning as the means for developing a community of skillful, reflective, peacemaking integrative lawyers. Through such a network of trained and certified integrative lawyers, IlI is seeding a self-aware integrative law movement that can extend “law as a healing profession” not only within our world of collaborative practice—which as a

practical matter remains overwhelmingly a family law phenomenon—but also beyond it to the broader domain of lawyers who also work in the realm of broken human relationships. I deeply believe that our culture cannot continue to bear the human and financial costs of a legal profession that has lost its way about resolving disputes arising out of predictable day-to-day human relationship conflicts. The collaborative practice movement is a beacon for our profession, showing family lawyers how to integrate their own most deeply held values into forms of practice that encourage clients, too, to put personal values first in resolving divorce-related issues. Through the Integrative law Institute, my vision and mission is to offer ways for lawyers working in the many other domains of personal relationship ruptures to join us as part of the expanding community of capable, values-driven lawyer-peacemakers.

Save The Date!

Gold Coast, Queensland, Australia | April 16 - April 19, 2015

5 th A n n ua l I A C P In s t i t u t e

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