It’s unfair to be too critical of lawyers who are quick to throw up their hands at preliminary junctures of civil disputes and repeat the oh-so-common mantra, “See you in court!” After all, we were trained in law school to be zealous advocates and the judicial system is geared to reward steadfast—sometimes just plain obstinate—adherence to a “strong” legal position. Consistently pounding the law, even when connection to the facts is tenuous, often results in victory and, in most situations, at least produces even odds of success. Certainly, there are some situations that cannot be resolved without the Solomonic authority of a master, judge or jury to decide a close call or to end a meritless rampage by misguided litigants or their lawyers. But participants in many civil disputes would be far better served if their lawyers had resources other than the relentless advancement of a specific position. Certain family law matters—for example, the financial issues associated with divorce-separation and the details of parenting arrangements between capable adults—are particularly well-suited for an approach that looks beyond the traditional “position-based” outlook we learned in law school and have practiced for years. In position-based negotiations, attorneys identify the relevant legal principles and search for facts that strengthen their client’s and diminish their opponent’s chances of success on each point. Successful lawyers come up with the strongest or most creative arguments on both sides of an issue and, with experience, learn to present the supporting facts in the order that will be most likely to attract the attention of the fact-finder. When done well, it’s not easy work, but the parameters are well-defined, leaving no impetus to think outside the box.
Comparatively, it’s much tougher work for lawyers to approach conflict resolution from a perspective that focuses on the interests of all parties and the nonparties who are directly affected: children, in family cases; employees and customers, in business cases; community members, in government and neighborhood disputes, etc. Interest-based negotiation—a relatively new addition to law school curricula, if available at all—presents challenges to the traditionally trained lawyer. There are two common intellectual obstacles: Isn’t a lawyer ethically obliged to view legal matters with blinders, focusing exclusively on winning the point for the client? Won’t business development be hindered absent a go-for-the-jugular reputation?
