“A good lawyer makes a living, a great lawyer makes a difference.” Preet Bharara – September 26, 2017.With our society mired in fractionalized discord. When people can no longer talk with each other. When positions replace interests. When no matter what happened, my view is superior to yours. When disruption and innovation lead to great wealth and permanently displaced workers.It is time for great lawyers to step up and make a difference.Until some form of balance is restored in our system of justice, great lawyers must, even at great risk to their comfortable lives as lawyers, step up to play their part in transforming the fractures that exist.Mind you, this will not be easy. With every tweet or Facebook post or just simple bar room chatter that espouses or encourages rancor. With every effort to suppress discussion of important issues through dismissal of opposing points of view. The task of restoring faith in any institution is weakened.Institutions are nothing more and nothing less than the sum total of the moral compass and integrity of those within the institution.When the momentum of “change” is to foment discord rather than to find commonality.
Justice becomes a word without meaning rather than a result worthy of being sought.
Backlash results from suffering of individuals and institutions. Backlash that makes the pursuit of justice ever so difficult.
It is easy to take a position – even a position not supported by the facts.
It is easy to write a fuck you letter – all good lawyers are experts at writing those letters. When has a fuck you letter actually worked to obtain a result – in reality – never.
Presenting facts that are real and believable and advancing arguments that are principled is hard. Sometimes really hard.
That is what being a great lawyer is all about. Rejecting the petty. Rejecting ad hominem attacks. Rejection the knee jerk reaction of fuck you communications. Refusing to present positions that have no basis in the law regardless of how much money someone is willing to pay.
For all of those reasons, our society needs great lawyers to become great mediators.
The justice system is in turmoil based upon disruption and discord. That is not good for anyone. Once way that great lawyers can help to restore faith in the system is to serve as effective mediators to allow individuals and companies to find solutions that are in their interests without sacrificing principles.
Principled mediation can provide a bridge over the disruption and discord in society today – a bridge that provides access to justice, restores faith in the institution of justice, and restores trust is lawyers. A pathway back to a system where the rule of law is principled and not partisan – a system where faith that the results of disputes in society will be resolved in a just and accessible way.
This will not be an easy transition for great lawyers. Even a great lawyer cannot simply read a book and become a great mediator. Great lawyers will need retraining and retooling to become great mediators. The time for that transition is now. Transformation of the justice system for good cannot occur without that transition. The transformation will start slowly at first but gain momentum with every great lawyer who chooses to make the transition for the purpose of making a difference.
How will we know that transformation is occurring? We will see more and more “principled mediation.”
Principled mediation does not exist in the mediation of forced or imposed settlements. Forced or imposed settlements are the antithesis of principled mediation.
Principled mediator is not achieved through disparaging attacks on the positions of the parties.
Principled mediation is not achieved through mechanical evaluations of legal arguments or factual belief or through shuttling of offers.
Rather, principled mediator is achieved when a skilled practitioner uses probing questions and creative approaches to peel back the layers of discord and disagreement to find commonality based upon interests that are either common or interests that can harmonize to create a result.
Through the process of principled mediation, the parties to a dispute can see the interests of the other party and understand the basis for the dispute.
Only then, can the parties without the gloss of advocacy for the sake of advocacy, evaluate, or with the help of the mediator, the true implications, expense and collateral damage, of pursuing the dispute. Only then is does the value of resolution of the dispute arise out of the fog surrounding and arising out of disagreement.
At the end of the process, the parties choose to either reach a resolution while maintaining their principled positions or to continue their dispute with a better understanding of the ramifications of the course they choose. Both results are positive and support the pursuit of justice.
When great lawyers take on this challenge – Society benefits.
Even the most expensive mediation is less expensive than trial – with far less collateral cost and damage as an added benefit.
Society benefits because if pre-dispute mediation is available, justice becomes more accessible for those who are afraid of the costs of the system or simply unable to afford the costs of the system.
Greater access to principled dispute resolution restores faith in the institution of the justice system and the pursuit of justice itself.
There are no easy answers.
No single answer solves all of the problems we face.
Nevertheless, when great lawyers transform themselves into great mediators, the process of restoring faith in and access to justice is one step closer, in a principled and trustworthy way.