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When Winning Isn't Everything: The Lawyer as Problem Solver

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Abstract

This essay presents the elements of a problem solving approach to legal practice, taken from Professor Menkel-Meadow's work on legal negotiation. The article reviews different orientations and approaches to legal problem solving, suggests some different questions to be asking about legal and social problems and briefly explores the role of creativity in legal problem solving.
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... The steps of negotiation are as follows ((Menkel-Meadow, 2000; Wilson, 1995): the parties start to negotiate, develop a relationship, identify potential differences of opinion, and plan how to deal with them. Negotiation processes are fundamental to successful selection and collaboration. ...
... In some situations their involvement is helpful, either as representatives in court proceedings, as drafters of complex contracts, or as specialists in legal systems that are often daunting in their complexity. For these reasons, lawyers play important roles in legal negotiations (Menkel-Meadow, 2000). Legal negotiations have been defined as " negotiations (between parties) with lawyers in the middle and legal institutions in the background. ...
... The literature observes that involving lawyers in negotiations has disadvantages (Salacuse, 1998; Mnookin & Susskind, 1999). Legal professionals are trained in the distributive negotiation method that is characteristic of the legal system (Menkel-Meadow, 2000; Kritzer, 1991). In a traditional legal approach, distributive bargaining competition and the defense of one's position are paramount. ...
Conference Paper
Using a partner selection process in the start of strategic alliances is not yet general practice. This is regarded as one of the reasons why many strategic alliances fail to be successful. The use of a structured partner selection process could be a way to build one’s alliance capability and create a better fit and higher alliance performance. In this paper, drawing from quantitative and qualitative research, we argue that alliances are more likely to increase alliance success when the partners pay particular attention to aspects with legal dimension within their partner selection process. Our key argument is that, as inter partner conflicts are the main reasons for alliance failure, by taking a legal perspective and providing adequate governance structure as instruments early on during the partner selection process, may diminish those conflicts and increase alliance success. Our findings from a quantitative study among alliance professionals suggest that the use of negotiation and standard governance is highly effective in helping firms to increase their alliance success. As our study indicates that including clear steps regarding legal aspects of alliance selection, we further explored the role ‘the law’ (contracts and lawyers) plays and may play in (to optimizing) a successful selection process. We not only show the added value of taking a legal perspective, we also suggest which and when legal elements may be organized in such a way that they support a successful partner selection process.
... 19 Business school models have given similar emphasis to developing effective group interaction, and, at least according to some law teachers, do a relatively more effective job of teaching creative problem-solving skills. 20 In more general terms, cooperative teaching methods, including a dimension of personal interaction, produce higher achievement as well as happier and healthier students when compared to more competitive or individualistic approaches. 21 All of the principles described above represent elements of "balance" in legal education. ...
Article
This essay reflects a perspective gained from more than three decades on a law school faculty and from brief tours of duty as a temporary or interim dean. I am sure that over time my views were shaped more by my faculty role than by the work I performed as an administrator. Nevertheless, in my tenure as a dean, it seemed important to identify qualities of legal education that I would most like to enhance during the short term of my responsibility. In the process, I identified four "pervasive principles" that were consistent with my view of what "balance" in legal education is about. I label these principles as "pervasive" because they apply to all constituents of a law school and they are most likely to be sustained if backed by full institutional support. Thus, while I started in each instance with a goal of enhancing student experience, I conclude that students are most likely to respond in kind when they observe faculty, staff, and alumni who model the qualities we promote. Further, the very principles that generate successful outcomes for students have analogues in relationship to other participants in the life of the academy. This statement implies certain judgments about my conception of success. For students, measures include attaining knowledge and skills, gaining admission to the bar, and experiencing personal satisfaction. For faculty and staff, specific measures may be different, but central components remain the same. In traditional terms, faculty should teach effectively, work as effective scholars, and provide service to their institution, their community, and their profession. Staff should work in harmony with each other and provide the quality of service that will best support the productivity of the institution.
... See Frankel (1980: 114). 2 SeeKritzer (1991);Menkel Meadow (2000). 3 See Chapter 7 main study. ...
... These are processes, involving multiple and complex issues with multiple parties, as hybrids of negotiation, case presentation, legislation and rule-drafting. 65 They therefore require skilled facilitation and meeting management skills. These are innovative processes involving multiple stakeholders to dialogue on policy issues, values and legal issues. ...
Article
The outcome of any negotiation, dispute or rulemaking, is to a certain extent influenced by rules and precedents. Moreover, clear and predictable rules may protect the weaker party in a negotiation because, as objective standards, these rules impact the distributive issues at stake, and contribute to the outcome fairness of the agreement. Applied to the field of European private law, the author argues for a more consistent approach to harmonisation, taking into account insights from negotiation theory and process building.
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Macquarie Law Journal Family law has historically been an area that many people end up traversing with only limited legal assistance. With increasing interest in artificial intelligence in legal services has come an expanding range of family law applications. Many of these applications have potential to assist clients, lawyers and courts. However, clients will continue to need, and seek out, human lawyers to assist them in family law matters. Especially in the case of vulnerable parties and children, technology may not be an appropriate substitute for human family lawyers.
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Selecting the right partner is important for creating value in alliances. Even though prior research suggests that a structured partner selection process increases alliance success, empirical research remains scarce. This paper presents an explorative empirical study that shows that some steps in the partner selection process are more important than others. We also find evidence that a structured partner selection process contributes more to alliance success than an informal process. Another finding is that companies tend to focus on early phases of the partner selection process whereas the data suggest that paying attention to later phases is more important. Finally, alliances are more likely to be successful when the partners pay attention to the legal dimension of their partner selection process. Taking a legal perspective and providing an adequate governance structure for the selection process may diminish conflict between partners and increase success.
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Courts across the country are being saddled with a rapid escalation of foreclosure filings due to the fallout from the subprime mortgage crisis. More than two million homeowners stand to lose their home in the United States in the next year, and hundreds of billions of dollars in home equity will be lost by all homeowners as a result, not just those in default on their mortgages. This article assesses the impact of this wave of foreclosures on communities and the courts, and suggests that jurisdictions should adopt the techniques of those problem-solving courts already in existence: i.e., drug courts, mental health courts, community courts and domestic violence courts. These techniques involve active judges in non-traditional roles engaging in systemic reform and close monitoring of litigant conduct while utilizing non-adversarial approaches and enlisting the assistance of interdisciplinary stakeholders. Such techniques are well suited to the foreclosure context, particularly given the nature and scope of the subprime mortgage crisis, and court systems should consider creating specialized foreclosure courts that can adopt a problem-solving approach to address the rapid rise in foreclosure proceedings.
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Litigators should give the opposing party options by which it can avoid a full-scale legal battle. Such options are provided through the pre-litigation process of negotiated settlement. It is curious why so much time, training and effort goes into teaching law students and lawyers how to litigate, and so little into how to efficiently achieve as much of a client's goal as possible through the process of negotiated settlement. The process of dispute resolution through effective negotiated settlement involves carefully crafted strategies. What's more, settlement negotiations typically begin with a strategy that is the legal equivalent of a shot across the bow - a demand letter. In this article, I argue that writing an effective Shot Across the Bow letter requires the attorney to engage in specific analytical writing, and tactical strategies. I also propose a methodology for the preparation and execution of such a letter. By breaking down the steps and providing an example, I contend that a well-conceived, well-written, and well-sent Shot Across the Bow letter can increase the likelihood of a prompt, efficient, and satisfactory end to a civil dispute.
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The problem-solving approach to legal negotiation requires that lawyers both compete and cooperate with their adversaries. This article urges legal education, and clinical legal education in particular, to endorse and teach the problem-solving approach to legal negotiation as the preferred approach for both litigation and transactional practices. Trial lawyers have been reluctant to embrace the cooperative aspects of negotiation, and ethical rules of the legal profession often seem to discourage cooperation with adversaries. As a result, lawyers often fail to reach beneficial solutions and deals that create value for their clients. The act of making a voluntary settlement in litigation or an agreement in transactional practice transforms each party's subjective evaluation of a potential deal into objective and measurable value. All parties to a voluntary settlement or agreement walk away better off than they would have been without the deal. Thus, problem-solving negotiation allows lawyers to create value for their clients. It should be the standard for legal negotiation.
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Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies what the authors have elsewhere called "experimentalism." The authors argue here that treatment courts as open and evolving experimentalist institutions point one way beyond the conventional limitations of courts and other oversight institutions. By pooling information on good and bad performance, and sanctioning when necessary unsatisfactory performers, the courts enable and oblige improvement by the actors both individually and as members of a complex ensemble. Judicial involvement in reform is permanent and continuous in this model. Yet it is, paradoxically, less imperious than traditional methods of court-directed reform for two reasons. First, the court in effect compels the actors to learn continuously and incrementally from each other rather than instructing them to implement a comprehensive remedial plan devised by the court alone or even in consultation with the parties. Second, the court is itself compelled to change in response to the changes it facilitates. In part this occurs through the exchanges with the treatment providers and in part it occurs in response to comparisons with experience in other jurisdictions as revealed by national pooling. Thus, the article argues, the experimentalist architecture of the drug courts suggests that they and like institutions need not face a strict tradeoff between efficacy and accountability.
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In this lecture from the Mathew O. Tobriner Lecture Series at Hastings College of the Law, Chief Judge Judith S. Kaye urges a broader conception of court administration. She presents three concrete solutions to today's court administration problem. One is in the area of criminal justice, the second the family courts, and the third the jury system -- three areas of court operations that touch large numbers of citizens. She describes these solutions with the hope that the legal and academic communities, as well as the public, will start to evaluate the efficiency of court administrations, because the public deserves and demands courts that are both just and effective. While the subject areas of these three solutions may be disparate, the underlying approach is the same: paying attention not just to the fairness of the rules and procedures but also to the effectiveness of the outcomes. This involves examining operations from the perspective of the providers and from the perspective of the consumers of court services. Most importantly, it involves simply asking: is there a different, better way to do this?
Working Together: The Workplace in Civil Society (Dec. 1999) (unpublished manuscript, on file with the Columbia University Public Law & Legal Theory Working Paper Group) (discussing the workplace as a mediating in- stitution)
  • See Generally Arie
  • Russell Hochschild
  • The
  • Bind
  • When
  • Becomes
  • Home
  • Home
  • L Work Cynthia
  • Estlund
See generally ARiE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME BECOMES WORK (1997); Cynthia L. Estlund, Working Together: The Workplace in Civil Society (Dec. 1999) (unpublished manuscript, on file with the Columbia University Public Law & Legal Theory Working Paper Group) (discussing the workplace as a mediating in- stitution).
Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND) (explaining the role of treatment courts, which allow individuals to avoid criminal trial court if they plead guilty and enroll in a drug treatment program)
  • E G See
  • C Michael
  • Dorf
  • F Charles
  • Sabel
See, e.g., Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND. L. REV. 831 (2000) (explaining the role of treatment courts, which allow individuals to avoid criminal trial court if they plead guilty and enroll in a drug treatment program).
discussing the changes implemented in the family court and criminal court systems and the jury system in response to changes in society)
  • Judith S See Generally
  • Kaye
See generally Judith S. Kaye, Changing Courts in Changing Times: The Need for a Fresh Look at How Courts Are Run, 48 HASTINGS L.J. 851 (1997) (discussing the changes implemented in the family court and criminal court systems and the jury system in response to changes in society).
  • See Generally Arie
  • Russell Hochschild
  • The
  • Bind
See generally ARiE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME BECOMES WORK (1997);
) (unpublished manuscript, on file with the Columbia University Public Law & Legal Theory Working Paper Group) (discussing the workplace as a mediating institution)
  • Cynthia L Estlund
  • Working Together
Cynthia L. Estlund, Working Together: The Workplace in Civil Society (Dec. 1999) (unpublished manuscript, on file with the Columbia University Public Law & Legal Theory Working Paper Group) (discussing the workplace as a mediating institution). [Vol. 28:905