May 24, 2019

Archives for October 2, 2015

Resolve Client Conflicts Through Narrative Mediation

ADR2015Editor’s Note: This article is excerpted from materials written by C. Adam Foster of Hoban & Feola, LLC, who will present “Once Upon a Mediation: The Role of Narrative in Alternative Dispute Resolution” at CLE’s 9th Annual Colorado ADR Conference on October 7, 2015. See below for registration information.

Each person tells themselves a story about how their past experiences have shaped them as a person and how these experiences, along with their goals and values, define what is important to them in life. In other words, personal narrative gives meaning to past experiences, which define the individual’s self-image in the present and in turn circumscribes how they view their relationships with others and how they evaluate their choices moving forward. Individuals create multiple narratives in different contexts that inform how they see themselves in various social roles, for instance as professionals, spouses, parents and friends. These individual narratives stand in dialog with larger social narratives involving class, race, gender, sexual orientation, religion and many other aspects of identity. Moreover, the existence of these narratives and their effect on the construction of identity may be more or less consciously acknowledged depending on the individual and their circumstances at any given time. Regardless of whether consciously or (more often) subconsciously, each individual crafts a narrative that reaffirms his or her values and identity. Thus, “[t]he stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one’s social network, and even to cultural stories on a societal level” (Hansen, 2003). The notion of interrelated individual narrative and larger scale social discourse has been adopted into the practice of Narrative Mediation. Kure & Winslade (2010) elaborate:

In particular, narrative mediators focus on what can be coined “relational discourses,” which are local systems of meaning that shape the identities of parties in a relationship. These relational discourses map on to larger, more pervasive, discourses, or orders of discourse, but at the personal level, they are manifest through the ‘positioning ’of each of the parties in a power relation.

This idea of individual identity as a product of multiple individual and group discourses and narratives dovetails with the concept of “discursive positioning.” As Winslade (2003) writes: “As people speak, they position themselves not just in immediate relation to other person(s) in the conversation, but also in relation to utterances in other conversations.” Furthermore, discursive positioning occurs not just in relation to past conversations that the parties have had with each other, but innumerable conversations they have had with third parties.

The statement of facts is the most important portion of any legal brief because citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Judges, juries and arbitrators want to achieve a fair outcome. A properly crafted narrative creates moral tension, suggests a proper result and makes the decision maker care about the outcome. Moreover, a great deal of trial strategy focuses on advancing the client’s narrative and suppressing or disrupting the opposing party’s narrative. A compelling narrative has “integrity” in the sense that the facts fit together in a logical fashion and support the party’s message.

Attorneys must recognize that the audience is different in a bench trial, jury trial, arbitration or mediation—and attorneys should tailor this narrative to the appropriate audience while telling the story the client needs to tell. Moreover, each individual—the parties but also the attorneys and mediator, arbitrator, judge, jury, etc.—is trying to make sense of two related, but distinct, narratives: (i) a narrative regarding the facts of case and a desirable outcome; and (ii) a meta-narrative regarding who they are as a person and how case fits in with their life story.

In mediation making sure that the parties feel heard is critical. Parties want to achieve a favorable outcome but also to feel heard and validated in the process, so a good settlement accomplishes both. A party who achieves favorable financial outcome but doesn’t feel heard feels dissatisfied and may try to undermine the settlement when the opportunity arises.

Common sense dictates that it will usually be more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.

C. Adam Foster, Esq., serves as Special Counsel at Hoban and Feola, where his practice focuses on the representation of business owners and mediation of business cases. He received a B.A. in Anthropology in 1998 from the University of Colorado at Boulder and was elected to Phi Beta Kappa. Adam returned to the University of Colorado at Boulder to attend law school, where he served as the Articles Editor of the University of Colorado Law Review, won the CU-DU Cup Mock Trial Competition, and received the Legal Aid Award for Outstanding Advocate. Adam joined Hoban & Feola in September of 2010 and today focuses on representing small to medium-sized business owners—including entrepreneurs within the burgeoning cannabis and industrial hemp industries—in transactions and litigation. He also mediates cases involving business, partnership and employment disputes. He speaks Spanish fluently and volunteers regularly, providing pro bono legal referrals through the Colorado Lawyers Committee Legal Nights and Project Homeless Connect.

 

CLE Program: 9th Annual Colorado ADR Conference

This CLE presentation will take place Wednesday, October 7, 2015 at the Renaissance Hotel in Denver. Live program only – click here to register or call (303) 860-0608.

The Culture of Law (Part 8): Bleak House and Epigenetics (Really)

rhodesWe looked last time at the slow pace and uncertain outcome of evolutionary cultural change. Just how slow is slow? How about no fundamental cultural change in the past 160 years? I’d say that’s pretty slow.

Law professor Benjamin H. Barton opens his recent new book Glass Half Full: The Decline and Rebirth of the Legal Profession with these observations:

Charles Dickens wrote Bleak House as a serial in the 1850s and published it as a single volume in 1853. It is a blistering assessment of the English Chancery system and remains one of the most trenchant critiques of the common law system.

Given the bewildering series of technological and societal changes over the last 160 years, there is something remarkable about Dickens’s portrait of lawyers in Bleak House: it is utterly familiar to a modern reader.

Bleak House portrays a legal profession little changed from then to now. Dickens describes lawyers meeting in person with clients, or drafting papers, or investigating their cases. English lawyers in 1850 practiced an individualized and bespoke professional service that consisted of paying a lawyer for his time, sometimes in court, sometimes in consultation, sometimes in drafting documents or conducting research.

If we want change faster than cultural evolution can give it to us, we might try analogizing to another scientific concept: epigenetics. David Perlmutter, neurologist and author of bestsellers Brain Maker and Grain Brain, describes epigenetics this way:

Even though genes encoded by DNA are essentially static (barring the occurrence of mutation), the expression of those genes can be highly dynamic in response to environmental influences. This field of study, called epigenetics, is now one of the hottest areas of research.

There are likely many windows during one’s lifetime when we are sensitive to environmental impacts.

Epigenetics, defined more technically, is the study of sections of your DNA (called “marks” or “markers”) that essentially tell your genes when and how strongly to express themselves.

[O]ur day-to-day lifestyle choices have a big effect on our biology and even the activity of our genes.

Now that we have evidence to suggest that food, stress, exercise, sleep… affect which of our genes are activated and which remain suppressed, we can take some degree of control in all of these realms.

Epigenetics explains why your kids aren’t like you. They have your DNA, but the choices they make in their contemporary cultural context alternately activate or shut down certain aspects of their genetic coding. No paternity test needed; they’re your kids alright, they’ve just been practicing epigenetics.

By analogy, law students and lawyers who are “sensitive to environmental impacts” — either because their brains are still developing while they’re in law school or because they’re committed to cultural change — have the ability to turn off their Bleak House cultural coding and embrace something new.

And get this: radical cultural shift doesn’t have to be driven only by technology, which was behind much of the change we looked at in the Future of Law series earlier this year. Instead, cultural change can be driven by “day-to-day lifestyle choices” involving things like “food, stress, exercise, sleep.” Think about that for a minute: lawyers committed to self-care could turn the whole institution and enterprise of law into a place of brand new vibrancy, creativity, and wellbeing.

That’s not pie-in-the-sky, that’s epigenetics.

In the next couple installments, we’ll look at a topic where lawyers routinely choose historical cultural DNA over epigenetic change: their paychecks.

Intrigued by epigenetics? Here’s an entertaining video on the basics. And here’s an overview.

This year’s fourth annual Running Past Our Limits series is an abbreviated version of a longer series I posted on my personal blog earlier this year. You can go there to get the whole thing if you like!

Colorado Court of Appeals: Announcement Sheet, 10/1/2015

On Thursday, October 1, 2015, the Colorado Court of Appeals issued no published opinion and 10 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.