litigation mentality blues

THINGS AS THEY ARE: LITIGATION MENTALITY BLUES AND THE CULTIVATION OF MINDFUL RESOLUTION IN A CULTURE OF CONFLICT *

* * *
They said, "You have a blue guitar,
You do not play things as they are."
The man replied, "Things as they are
Are changed upon the blue guitar."
And they said to him, "But play, you must,
A tune beyond us, yet ourselves,
A tune upon the blue guitar,
Of things exactly as they are."[fn.1]
* * *

OVERTURE:

Lawyers, popularly conceived as gunslingers in the wild west of the justice system, inhabit a precarious position: Required to conform to a strict code of ethics while zealously advocating their clients’ goals within the bounds of the law, they are celebrated and rewarded particularly for victory in the ritualized battle of the courtroom. Yet there is evidence of elevated stress and distress among individual advocates, and across the profession.[2] The victory-oriented warrior role is hard to shed, yet, under the burden of increasing caseloads, courts are encouraging dispute resolution before trial through negotiation, mediation and arbitration.

In this time of crisis for lawyers and their profession,[3] two currents are working against the depressing and litigious tide—increasing use of alternative dispute resolution[4] and nascent recourse to mindfulness meditation[5] by lawyers in firms and law schools—both promising greater clarity and resolution within the profession, among people who have chosen this vocation, and among disputants who appeal to the law.

On March 8, 2002, University of Missouri – Columbia School of Law Professor Leonard Riskin presented his recent article on “The Contemplative Lawyer”[6] at a Harvard Law School symposium[7] featuring an introduction to mindfulness exercises and discussion of the promise of meditation in the legal profession. This essay will review Riskin’s thesis and briefly explore concerns with meditative practice in the legal profession highlighted by his co-panelists at the symposium.

COMPETITION AND CHAOS: A CANON IN TWO VOICES

My father, a former litigator, used to tell a joke:

A Doctor, an Engineer and a Lawyer, sipping bourbon and branch, argued over the historical primacy of their professions. The Doctor opined that medicine was the oldest, citing the surgical extraction of Adam’s rib and creation of Eve as told in Genesis. The Engineer replied, “Yet, one chapter earlier it describes the primordial act of creation as one of engineering: God formed the heavens and the earth from chaos—”

“Aha!” broke in the lawyer, triumphantly, “but who created chaos?”[8]

Stewart Levine, also a former litigator, is not joking when he attributes “the high degree of unhappiness, substance abuse, suicide and the steady stream of people leaving” legal practice to a “businesslike and bottom-line oriented” legal culture as a result of which “[b]oth lawyers and clients see winning at any cost as the goal.”[9] Meanwhile, he notes “lawyer jokes and disdain”[10] prevalent in public attitudes toward lawyers.

Yet similar themes run in both men’s words, highlighting two key aspects of the state of the profession and its constituent individual humans.

The first is the stereotypical lawyer’s drive to win “at any cost,” illustrated in the joke: The lawyer accepts his adversaries’ precedent—the authority of the Bible—for the sake of argument, yet rejects its authority in asserting not God but lawyers created chaos.

The second aspect is chaos. It is not because he blasphemes that the lawyer “wins” (although this may raise the question of the lawyer’s relation to God), but because the implicit assertion as to the source of primordial chaos is irrefutable to the pious contenders, who led with their trump, as it were, and moreover are not situated to appreciate the relation between law and chaos. And there is chaos which lawyers are uniquely situated to appreciate: Studies show law students and lawyers subject to stress at higher rates than other professionals or the balance of the population, exhibiting elevated incidence of depression, suicide, and substance abuse.[11]

Levine suspected a “fundamental flaw” in the judicial system. But on reflection “the foundational principles of the adversary system . . . came up sound.”

Lawyers . . . advocating their position and allowing themselves to be educated by looking at the situation as advocated from a different perspective. The judge or jury making decisions. The concept of reliance on precedent.[12]

The foundations are sound, and lawyers continue to “serve the people”[13] through zealous advocacy of their clients’ interests, but nevertheless, legal dispute is widely conceived as “a battle played out in an arena, a clash of modern day gladiators in which wealth buys access, might makes right, and victory is measured by the magnitude of the recovery rather than the realization of the truth.”[14]

Levine concluded so many lawyers “are unhappy . . . because we . . . have not used the tools for which we’ve always been respected: understanding cause and effect, and bringing wisdom to the facilitation of societal action.”[15] In this view, he is among a rising chorus of voices calling for a broader approach to justice than the adversarial model alone, advocating a deeper understanding of the concerns and goals of parties to, and the mechanisms of, conflict. These voices are particularly strong in the field of “alternative” dispute resolution.[16]

“We have conflict because of how deals are set up at the front end,”[17] Levine notes, “they only become cases when disputes go unresolved.” By this rationale litigation would be the “alternative” to the norm of negotiation and collaboration.[18]

ADR ASCENDANCY AND THE LITIGATION MENTALITY

Two decades ago, Professor Riskin defined the “Lawyer’s Standard Philosophical Map”[19] as a critical barrier to lawyers’ understanding and adoption of mediation.

What appears on the map is determined largely . . . by two assumptions about matters that lawyers handle: (1) that disputants are adversaries-i.e., if one wins, the others must lose-and (2) that disputes may be resolved through application, by a third party, of some general rule of law. These assumptions . . . are polar opposites of those which underlie mediation: (1) that all parties can benefit through a creative solution to which each agrees; and (2) that the situation is unique and . . . not to be governed by any general principle except to the extent that the parties accept it.[20]

The standard assumptions “exclude mediation from most lawyers’ repertoires” and “blind lawyers to other kinds of information that are essential for a mediator to see” such as the connections between disputants and others, the emotional needs of parties, and other less quantifiable yearnings.[21] The lawyer sees the client “atomistically” rather than immersed in a web of relations, viewing qualitative concerns “dimly or not at all.” One party’s victory means the other party’s loss, and usually “victory is reduced to a money judgment.”[22] Such “‘reduction’ of nonmaterial values - such as honor, respect, dignity, security, and love - to amounts of money,” may either exclude such values from lawyers’ consideration, or affirm them merely as “justification for money damages.”[23]

Many obstacles have been undermined or overcome over the past decade, notably in the federal government.[24] Justice Department attorneys cite substantial savings in time and money, and valuable results including insight into the opponent, informal discovery, and elimination of contended issues, even in cases that did not settle in mediation.[25] The U.S. Air Force and U.S. Postal Service also report high satisfaction in ADR.[26] ADR-related courses have also been added to many law school curricula,[27] yet barriers remain. For one, mediation continues to present an economic threat to lawyers, so long as fees are “based upon a portion of the amount recovered or on an hourly rate,” and mediation threatens to “reduce the amount recovered” and “save some of the lawyer’s time.”[28]

U.S. Department of Justice Deputy Senior Counsel for Dispute Resolution Jeffery M. Senger catalogues “excuses for why ADR should not be used,” foremost among which is the “litigation mentality.”[29] Remarking on the government’s “long tradition of glorifying the lawyer as a warrior,” Senger describes differing attitudes to litigation and settlement he observed at the beginning of his career:

[T]here was nothing like the excitement in an office when someone was in trial. Supervisors would provide daily reports . . . praising the clever things the lawyers did that day. At the end of the trial, win or lose, we would have a big staff meeting . . . A lawyer who lost a trial still received some respect for fighting the good fight. A lawyer who won generally received an award and cash bonus at the end of the year. In contrast, a lawyer who negotiated a settlement . . . might only be mentioned in a weekly written report.[30]

The premium value placed on trial over ADR experience may also weigh in some lawyers’ reticence: “Negotiation experience, while it can be at least as important in the long run, is not valued as highly.”[31] Among aggressive negotiators and hardball litigators, “[m]any people perceive ADR to be soft, ‘touchy feely,’ . . . more appropriate for people holding hands at a Zen Buddhist retreat than for litigants in a federal lawsuit.”[32]

Professor Riskin suggested the litigation mentality “may be congruent with the personalities of most lawyers.” Further, “it is consistent with the expectations of most clients,” and “effective in achieving the kinds of results generally expected from a ‘victory,’” as well as giving “the appearance of clarifying the law.”[33] Its “dominant” source, however, is legal education:

[N]inety percent of what goes on in law school is based upon a model of a lawyer working in or against a background of litigation of disputes that can be resolved by the application of a rule by a third party. The teachers were trained with this model in mind. . . . This model defines and limits the likely career possibilities envisioned by most law students.[34]

THE ADVERSARY AMIDST ADVERSITY: CAN’T GET NO SATISFACTION

As noted above, this “have J.D. will litigate” view casts the lawyer in the role of knight-errant in a society that praises the individual second only to its esteem for victory. In his recent survey of contemplative practices among mediators, lawyers and law students, Riskin notes significant levels of dissatisfaction and missed opportunities to serve clients, among the foremost challenges facing the profession.[35]

Lawyers have higher rates of depression and anxiety, divorce, and substance abuse than the general population and members of other professions. . . . [S]ome . . . have lower levels of satisfaction with their work than other professionals. Many complain of difficulty in balancing their work and family lives.[36]

He attributes this to over-emphasis on “analytical reasoning at the expense of developing interpersonal skills” and training “students to seek satisfaction from external sources – such as ‘winning’ in general, and especially through grades, awards, and prestigious jobs – rather than from internal sources.”[37]

Evidence of the prevalence of “dissatisfaction” is grim. In a series of studies, researchers Benjamin, Darling and Sales found that one-fifth of young lawyers studied in both Arizona and Washington “developed depression levels that exceeded two standard deviations above the normal population mean.”[38]

Compared with the 3 to 9 percent of individuals in Western industrialized countries who suffer from depression, 19 percent of the Washington lawyers suffered from statistically significant elevated levels of depression. . . . Eighteen percent . . . were problem drinkers . . . almost twice the . . . rates estimated for adults in the United States.[39]

Benjamin et al. concluded 1) “that the presence of depression, problem drinking, and cocaine abuse is likely to affect lawyers at similar rates . . . within the United States,”[40] and 2) that “thirty three percent . . . suffered from either depression, problem drinking, or cocaine abuse.”[41] Moreover, data showed that “law students and lawyers suffered from significantly elevated levels of paranoid ideation and hostility.”[42] While such symptoms would be considered problematic among the general population,

perhaps these behaviors are adaptive for many lawyers in the adversarial legal system of the United States. . . . Perhaps a pathological level of hostility does not negatively affect more traditional forms of practice, but does impair a lawyer’s ability to successfully mediate disputes.[43]

“[T]he profession must respond to so many lawyers suffering from elevated symptom levels.”[44] Benjamin calls for more research to gauge the prevalence of such hostilities, to evaluate its impact on practice,[45] and to explore “its implications for jurisprudence . . . and litigiousness in [American] society.”[46]

Law students suffer similar a prevalence of stress as noted above among lawyers.[47] Riskin describes earlier studies among students,[48] concluding that, although not significantly different than the “general population” prior to enrolling,

in 20-40% of each class studied the law school experience elevated symptoms such as “obsessive-compulsive behavior, interpersonal sensitivity, depression, anxiety, hostility, phobic anxiety, paranoid ideation, and psychoticism (social alienation and isolation)” and the levels did not decrease during the first two years of practice.[49]

As it is implicated in perpetuating an attitude averse to ADR, law school is also implicated in the etiology of students’ distress. Researchers identify the high level of competition, heavy workload, and limited opportunities to develop interpersonal bonds with instructors as significant factors, as well as “the Socratic method, lack of control, lack of feedback, fear of failure and the importance of first-year grades.”[50]

Dissatisfaction with his role in the adversarial system led Stewart Levine away from the practice of law—“[a]s I developed mastery as a legal tactician, I noticed I disliked my work and myself more each year”[51]—while he became less effective at resolution. “[F]rustrated, anxious and fearful, I stopped practicing law. I spent the next 15 years unlearning—recovering what I knew about resolution when I started, discovering its component parts and learning how to teach and model it for others.”[52]

Levine took up mindfulness meditation around the time he left legal practice, and has been enjoying ascendancy as a “resolutionary” consultant, mediator and author, fostering conflict resolution and effective collaboration among individuals, organizations and businesses[53] over the past decade. He works closely with the ABA Law Practice Management Section, and has been celebrated for his 1998 book Getting to Resolution: Turning Conflict Into Collaboration.

In Professor Riskin’s current thesis, much dissatisfaction suffered by law students and lawyers alike is caused by the constraints of the adversarial milieu of the apparatus of justice; any practitioner may address such problems through mindfulness discipline.

MINDFULNESS MEDITATION: A NOSTRUM AS AN OPTION

Awareness of the practices and elements of Asian wisdom traditions has exploded in American culture over the past twenty years, which have seen managers striving for “total quality” and seeking Wa,[54] while Persig’s Zen and the Art of Motorcycle Maintenance on the student radical’s bookshelf has joined the canon of “quality” literature, and is found in the corporate library alongside Lao Tzu and Sun Tzu. Contemporary exemplars and paragons of some of these traditions have also been instrumental in the transmission of their ideas. Overall, the ever increasing rate of transmission of ever increasing volumes of data, the demand created in popular culture for things Tao or Zen, and the more staid academic, ethical and intercultural studies combine to make the texts of various traditions, in many languages, translations and editions, easily accessible through the nearest Internet console, while also encouraging these traditions to take deeper root in the culture.

Mindfulness meditation—associated with, but not Buddhism itself—is the subject of this discussion, yet a quick overview will help situate the discipline and distinguish it from the religion. About two-and-a-half millennia ago, Gotama Siddhattha arose from a lengthy meditation, having attained enlightenment, to articulate his prescription for the cessation of human suffering as the four noble truths:[55] of suffering;[56] of the origin of suffering;[57] of the cessation of suffering;[58] and of the path leading to the cessation of suffering: “It is that Noble Eightfold Path, namely, Right Understanding, Right Thought, Right Speech, Right Action, Right Livelihood, Right Effort, Right Mindfulness, Right Concentration.”[59] Thereupon, Buddha[60] proceeded to expound this message, attracting disciples and “founding” the eponymous religion. Individuals “become Buddhists” by vowing to take “refuge in the Buddha, the Dharma, and the Sangha,”[61] but need not do so to explore the promise of meditation: “The doctrine . . . means ‘Come and see.’”[62]

The “Doctrine of the Mind”[63] holds that all good and evil issues from mind, and mindfulness meditation helps practitioners learn to know, to shape and to free the mind.[64] “[N]ot at all a ‘mystical state,’” mindfulness is “something quite simple and common, and very familiar to us.”[65] “Right mindfulness” comprises “bare attention . . . the clear and single-minded awareness of what . . . happens to us and in us, at the successive moments of perception,”[66] and “clear comprehension,” which adds “full comprehension of purpose and of actuality” to “the clarity of bare mindfulness.”[67]

* * *
Throw away the lights, the definitions.
And say of what you see in the dark
That it is this or that it is that,
But do not use the rotted names.
How should you walk in that space and know
Nothing of the madness of space,
Nothing of its jocular procreations?
Throw the lights away, nothing must stand
Between you and the shapes you take
When the crust of shape has been destroyed.
You as you are? You are yourself.
The blue guitar surprises you.[68]
* * *

The object of mindfulness meditation—vipassana in the Pali sources—is insight,[69] or “to see things as they really are.”[70] Riskin describes the sitting practice:

[A] person seeks . . . to notice, without judging and with equanimity, whatever passes through her awareness – bodily sensations, emotions, sounds and thoughts. . . . [One] usually begins with learning to concentrate by paying attention to one’s breathing. Next, the meditator gradually expands her awareness to include bodily sensation, emotions, thoughts, and eventually, consciousness itself – or the operation of the mind.[71]

The meditator does not concentrate on the breath but uses it as an anchor upon which to refocus her attention each time it flies away on the wings of stimulus and associative thought, without controlling the breath, and without grasping or judging the arising thoughts, but observing. The sitting practice offers the practitioner insight into her habitual associative flights of attention, and, if mindfulness of the breath is brought into her daily life, she will become more attuned to the arising and passing of her moods, emotions and impulses, and their connection to such physiological processes as breath.[72]

“Mindful observation of the manifestations of craving and aversion” can produce insight into their impermanence, Riskin observes.

Such non-attached, non-judgmental observation can lead to patience, discernment, and judgment both in everyday life and in law practice and law school. . . . [R]ecognition of impermanence pierces the illusion . . . that we can achieve lasting contentment through satisfying our cravings and aversions [which] can also help us respond more appropriately to situations – and the thoughts, feelings and bodily sensations that the situations elicit in us – rather than reacting in habitual ways.[73]

Teachers and practitioners of vipassana describe “increases in understanding of self and others, in compassion, in the ability to achieve a distance from habitual mind-sets and from craving and aversion, and thus to reduce suffering,”[74] as well as “increased happiness and enhanced abilities to concentrate, to think clearly, and to chart our own course in life.”[75] Studies indicate “improved concentration and a sense of calm, along with a decline in anxiety, hostility, and depression.”[76]

Mindfulness practice has enjoyed increasing eminence over the past decade, across the culture—from the corporate sector through professional athletics, among journalists, prisoners and soldiers, and included in medical, undergraduate, graduate and professional school curricula,[77]—and in the legal community: Mediators from the U.S. Court of Appeals for the Ninth Circuit have attended mindfulness sessions and attorneys from the Boston offices of Hale and Dorr[78] and Nutter, McClennan and Fish have received mindfulness meditation training.[79] Law students, professors and lawyers have attended contemplative practice retreats at the Center for Contemplative Mind in Society, since 1998,[80] and similar programs are offered at a handful of law schools.[81] Riskin also hails ABA leadership in fostering mindfulness instruction for lawyers.[82]

Constrained by the unpredictability of the results of mindfulness cultivation from one practitioner to the next,[83] Professor Riskin nevertheless projects that it could

(1) help lawyers and law students feel . . . and perform better at virtually any task; and (2) enable some lawyers to listen and negotiate better, . . . providing service that is more responsive to their clients’ needs and their own – and implementing some of the deepest aspirations associated with the legal profession. . . .[84]

Vipassana can enable the lawyer “simultaneously to consider inconsistent perspectives (such as those associated with adversarial and problem-solving approaches)” by “helping her observe – without attachment – the thoughts, feelings and bodily sensations that typically make up and support these mind-sets.”[85]

CONTENTIONS CONCERNING THE CONTEMPLATIVE COUNSELOR

While the efficacy of mindfulness meditation in personal development is widely recognized and supported,[86] the prospect of acceptance in the legal culture raises concern. Due to its “potential for undermining the hegemony of the Lawyer’s Standard Philosophical Map” Professor Riskin worries wide practice may “threaten the legal profession or values of conduct that are important to it” in various ways,[87] but such “concerns seem vastly outweighed by the greater likelihood that mindfulness will enable lawyers and law students to make and carry out good judgments.”[88]

Co-panelists in the Harvard Symposium addressed a range of implications arising from Riskin’s thesis, including whether mindfulness meditation is “religious” in character, and whether its religiousness would inhibit its adoption or undermine the profession or lawyers’ performance.

University of Hawaii Richardson School of Law Visiting Assistant Professor Douglas A. Codiga is concerned with the advocacy of mindfulness. He warns that its benefits will be lost “unless three potential misconceptions . . . are firmly laid to rest.”[89]

Lawyers must understand that (1) there is nothing mystical or otherworldly about mindfulness meditation . . . ; (2) the practice . . . requires no commitment to Buddhism . . . ; [and] (3) offers something more than stress reduction and improved lawyering . . . [but] a proven method for cultivating deeper insights that touch upon the whole of a lawyer’s life.[90]

Promotion of vipassana must convey that it will be consonant with a lawyer’s already confirmed faith or will not lead to religion itself. There is ample literature illustrating the efficacy of cultivation without a conflict of faith[91] for a target audience comprising the psychologically embattled individuals in this profession. But they will learn more about it, faster, simply by trying it themselves.

University of Miami School of Law Professor William S. Blatt contends that “[m]editation is no mere self-improvement tool; it is a spiritual practice.”[92] Portraying it as a product rather than the source,[93] Blatt reviews its roots in Buddhism’s monastic tradition, and describes it as sustained by religious intention, “a powerful vision that animates one’s life . . . which gives our lives deep meaning.”[94] This “claim to ultimate meaning makes meditation potentially controversial.”[95] Moreover, “[h]ow this vision applies to the laity, and lawyers . . . is unclear;” due to its monastic tradition, “[t]he most obvious inference is that lawyers should quit their clients and retire from the world.”[96]

If quantifiable performance enhancement is the goal, Professor Blatt argues, vipassana pales in comparison to “[t]he superiority of psychological approaches” suggested by Daniel Goldman’s work on enhancing “emotional intelligence” through cognitive therapy.[97] The question—in light of cognitive therapy, why mindfulness?—is answered with the observation that once the principles of vipassana practice are grasped, mindfulness can be cultivated any time, anywhere, while doing anything. At no cost. Moreover, it is not clear that cognitive therapy, or its root tradition, is any less “religious” in character than vipassana. The crucial difference is not that “[p]sychotherapy works within the world; meditation points beyond it,”[98] but that the psychotherapist acts in pursuit of instrumental knowledge and faith in its utility, and the patient “takes refuge” in someone else’s constructs and expertise, while the meditator sits reposed, open to the possibility of “clear comprehension.”

University of Colorado School of Law Associate Professor Scott R. Peppet assumes “that over time a mindful person will become a more ethical person”[99] in exploring “whether mindfulness squares with partisanship.”[100] Positing a “saint” with “a more conscientious stance toward her relations with the world and others than most of us will ever achieve,”[101] Peppet suggests “at the very least such a person would commit to both honesty and fairness,”[102] developing “a less partisan, more universal perspective.”[103]

[T]his change will likely lead her at least to commit (a) not to deceive or manipulate others, given that she would not want to be deceived or manipulated, and (b) to try to respect and take others’ interest into account as she would expect others to take her interests into account.[104]

Peppet concludes that conflict between partisanship and ethical commitments is real:

Increasing one’s awareness has ethical consequences. . . . Rather than becoming more free . . . to choose a negotiation approach, a mindful negotiator may constrain himself, limiting his freedom of action in deference to his ethical commitments. And this, particularly for lawyers, may chafe against the lawyer’s understanding – or others’ understanding – of the lawyer’s role.[105]

Ultimately, any discipline diligently practiced will effect some change in the practitioner. But we are already always immersed in change, which immersion changes us. Mindfulness promises to enhance our awareness of the mechanisms involved. Moreover, it is already to be hopes that each individual’s choices of technique are already constrained and guided by that individual’s ethical commitments. Perhaps, rather than driving lawyers from practice, like Riskin and Peppet fret, meditation will foster greater commitment to collaborative management of conflict in our culture, as Levine has modeled.

CODA: A TAO UNSPOKEN AND THOSE WHO KNOW

It has been my objective, in this essay, to address “things as they are” with regard to the well-being of the people in this profession, to add my voice to the dialogue Professor Riskin has opened, and to convey my sense of hope at the prospect of mindfulness among lawyers.

In light of the psychological malaise gripping the profession so much concern over the religious qualities of a practice that costs little to try and promises so much should raise further inquiry as to what we mean when we describe something as religious in character, whether we can meaningfully distinguish religious from ethical or spiritual qualities, and why we are so touchy about it.[106] Yet, while advocating vipassana in the legal profession, we do well to recall Hale and Dorr Chairman John D. Hamilton, Jr.’s admonition that billing this “transformational” practice as “stress reduction” limits participants’ expectations and thus its potential benefits.[107]

We, who benefit from vipassana, must be candid about it with those not already “in the choir,” or our suffering colleagues will remain ignorant of this balm and congruent efforts being made throughout the field to address the apparent perils of the profession. Yet, however effective persuasive essays and compelling statistics may be, we must also heed the lesson of the practice’s traditional modes of transmission. Personal contact, personal communication and personal illustration are essential in transmitting the discipline via, in short, the product of the Eightfold Path: Right Example.

* * *
It must be this rhapsody or none,
The rhapsody of things as they are.[108]
* * *

____________________________________

* "Things As They Were" rather: This paper is almost ten years old; I have not updated (or even checked) the citations since the date noted below, though, I think in intervening years I have looked for that Harvard Symposium website and failed to find it. -ed.

1. Wallace Stevens, THE MAN WITH THE BLUE GUITAR (1936), reprinted in THE COLLECTED POEMS OF WALLACE STEVENS, at 165 (Vintage Books, 1990)(Hereafter, Blue Guitar).
2. See, notes 35-53, infra, and accompanying text.
3. See, e.g., Susan Daicoff, “Lawyer Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism,” 46 AM. U. L. REV. 1337 (1997)(Recognizing a “tripartite crisis” in professionalism, public opinion and attorney satisfaction) and Lawrence S. Krieger, “What We’re Not Telling Law Students – and Lawyers – That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession from its Roots,” 13 J. L. & HEALTH 1(1998-1999).
4. See notes 19-34, infra, and accompanying text.
5. See notes 55-85, infra, and accompanying text.
6. Leonard Riskin, “The Contemplative Lawyer: On the Potential Contributions Of Mindfulness Meditation to Law Students, Lawyers, and their Clients,” 7 HARV. NEGOT. L. REV. 1 (2002).
7. See Harvard Symposium, “Mindfulness in the Law & ADR,” webcast at http://www.pon.harvard.edu /news/2002/video_riskin_mindfulness.php3.
8. My father used to tell this joke in the 1970s. It can be found in any number of Internet compendia, but I have been unable to find it represented in legal literature.
9. Stewart Levine, “Advocacy Does Not Equal Adversarial,” Law Practice Management Magazine, September 2001, at http://www.abanet.org/lpm/magazine/articles/magarticle12478_front.shtml. Levine has quit “practicing law,” but not left the profession, as both his work with dispute resolution and his work with the ABA indicate. See http://www.abanet.org/careercounsel/profile/adr/levines.html.
10. Id.
11. See notes 35-53, infra, and accompanying text; see also Daicoff, note 3, supra.
12. Levine, “Advocacy,” note 9, supra.
13. Janet Reno, “Lawyers as Problem Solvers: Keynote Address to the Association of American Law Schools,” 49 J. LEGAL EDUC. 5, 9 (1999).
14. John Ashcroft, Prepared Remarks of Attorney General John Ashcroft, Commencement Address for the University of Missouri, Columbia School of Law (May, 18, 2002) at http://www.usdoj.gov/ag/speeches/2002/051802commencement_columbia.htm (no print version extant; last visited May 27, 2003).
15. Levine, “Advocacy,” supra, note 9.
16. Some proponents of ADR point out that, as conflict and both adversarial and collaborative approaches to its resolution are inherent in human society, collaborative means do not derive from and should not be subordinated to the law’s method of getting at the truth. ADR is thus decrypted by such proponents as “Appropriate” rather than “Alternative Dispute Resolution.” See e.g., Albie M. Davis & Howard Gadlin, “Mediators Gain Trust The Old-Fashioned Way – We Earn It!,” 4 NEGOT. J. 55, 62 (1988) and Reno, note 13, supra, at 8.
17. Stewart Levine, telephone interview (Sept. 26, 2002).
18. Id.
19. Leonard Riskin, “Mediation and Lawyers,” 43 OHIO ST. L. J. 29, 43-48 (1982)(Observing that it is not uncommon for maps to fail to show clearly visible features of the field represented.).
20. Id. at 43-44.
21. Id. at 44.
22. Id. at 44.
23. Id. at 44-45.
24. See generally, Reno, note 13, supra, and Jeffrey M. Senger, “Turning the Ship of State,” 2000 J. DISP. RESOL. 79 (2000).
25. Senger at 85-86.
26. Id. at 86-87.
27. See Reno, note 13, supra. Then Attorney General Reno commended legal educators’ “great advances in incorporating problem-solving . . . working to promote the role of the lawyer as counselor, as negotiator, as problem-solver, as analyst, as planner” to date, urging utmost effort “to expand this mission to all law schools.”
28. Riskin, “Mediation and Lawyers,” at 49.
29. Senger, note 24, supra, at 87-88 (quoting Riskin, “Mediation and Lawyers,” note 19, supra, at 43-48). Senger lists, inter alia, fear of looking weak, perception of ADR as a fad, lack of funding and of administrative support, and continuing concerns about confidentiality.
30. Id.
31. Id.
32. Id. at 88.
33. Riskin, “Mediation and Lawyers,” at 47.
34. Id. at 48.
35. Riskin, “Contemplative Lawyer,” note 6, supra, at 9-10, and see generally, Hon. Erwin I. Katz, “Representing Clients in Mediation: The ‘Missed’ Opportunity,” 21-MAR AM. BANKR. INST. J. 30 (2002).
36. Id. at 10-11.
37. Id. at 10.
38. G. Andrew H. Benjamin, Elaine J. Darling, Bruce Sales, “The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers,” 13 INT’L J. L. & PSYCHIATRY, 233-246, 240 (1990).
39. Id. at 240-241.
40. Id. at 242.
41. Id.
42. Id. at 244.
43. Id.
44. Id.
45. Id. at 243-244 (Noting a 1988 ABA determination that “27 percent of the discipline cases in the United States involved alcohol abuse.”)
46. Id. at 245.
47. Krieger, note 3, supra, at note 1 (“[T]he difficulties and quality of distress experienced by lawyers and law students appear fundamentally similar.”).
48. See G. Andrew H. Benjamin et al., “The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers,” 1986 AM. B. FOUND. RES. J. 225 (1986); see also, Stephen B. Shanfield & G. Andrew H. Benjamin, “Psychiatric Distress in Law Students,” 35 J. LEGAL EDUC. 65 (1985).
49. Riskin, “Contemplative Lawyer” at 10, note 33.
50. Bridget A. Maloney, “Distress Among the Legal Profession: What Law Schools Can Do About It,” 15 ND J. L. ETHICS & PUB POL’Y 307, 324-328 (2001).
51. Levine, “Advocacy,” note 9, supra.
52. Stewart Levine, “Resolutionary View: 10 Principles for Developing the Attitude of Resolution, Law Practice Management Magazine,” Oct. 1999 at http://www.abanet.org/lpm2/magazine/997levine.html.
53. Stewart Levine, telephone interview (Sept. 26, 2002).
54. Robert Whiting, YOU GOTTA HAVE WA (Macmillan 1989).
55. See, e.g., Paul Carus, THE GOSPEL OF BUDDHA, IV-XIV, pp. 7-45 (Oneworld, 1994).
56. Nyanaponika Thera, SATIPATTHANA: THE HEART OF BUDDHIST MEDITATION, A HANDBOOK OF MENTAL TRAINING BASED ON THE BUDDHA’S WAY OF MINDFULNESS at 127 (Samuel Weiser, 1988)(Nyanaponika’s translation of the Maha-Satipatthana-Sutta or “The Greater Discourse on the Foundations of Mindfulness, Being the 22nd Text of the Collection of Long Discourses of the Buddha.”)(“[O]ld age is suffering; death is suffering; sorrow, lamentation, pain, grief and despair are suffering; not to get what one wishes, is suffering. . . .”).
57. Id. at 128 (“[T]hat craving which gives rise to fresh rebirth, and, bound up with pleasure and lust, finds ever fresh delight, now here, now there. . . .”).
58. Id. at 129 (“[T]he complete fading away and extinction of this very craving, its forsaking and giving up, the liberation and detachment from it.”)
59. Id.
60. Carus at 274. Carus’ Glossary of Names and Terms translates this term from both Pali and Sanskrit as “the Awakened One.”
61. Id. at 61, 64, 68; see, generally, id. at 56-57. This is the declaration of faith in the teacher, the doctrine and the community of disciples.
62. Id. at 57.
63. Nyanponika at 22-23.
64. Id.
65. Id. at 24.
66. Id. at 30.
67. Id. at 46.
68. BLUE GUITAR, at 183.
69. Nyanaponika at 216. Nyanaponika’s Glossary of Pali and Sanskrit Terms offers “Vipassana (-bhavana; P[ali]), ‘Insight(-meditation)’.” Generally, insight meditation is distinguished from moving meditation such as tai ch’i or concentration meditation such as Transcendental Meditation practices although these may have similar goals.
70. The Vipassana Website, “homepage of organizations which offer courses in Vipassana Meditation,” at http://www.dhamma.org.
71. Riskin, “Contemplative Lawyer” at 23-24.
72. While Riskin rightly cautions in “Contemplative Lawyer” at 45-46 that results are unpredictable among individuals, my perspective suggests this, at least, must be the common result of sincere effort.
73. Id. at 29.
74. Id. at 30.
75. Id.
76. Id. at 30-31
77. Id. at 5-7.
78. Mindfulness Symposium, see note 7, supra. John D. Hamilton, Jr., Chairman of Hale & Dorr, LLP, describes the potential of mindfulness meditation as “transformational” of the law and individually, and observes nothing inconsistent between meditative grounding and advocacy.
79. Riskin, “Contemplative Lawyer” at 33-34.
80. Id. at 34-36.
81. Id. at 38-39.
82. Id. at 36.
83. Id. at 45-46.
84. Id. at 46.
85. Id. at 55.
86. See, e.g., Clark Freshman, Adele M. Hayes, Greg C. Feldman, “Mindfulness in the Law and ADR: Adapting Meditation to Promote Negotiation Success: A Guide to Varieties and Scientific Support,” 7 HARV. NEGOT. L. REV. 67, 72-76 (2002).
87. Riskin, “Contemplative Lawyer” at 64-65.
88. Id.
89. Douglas A. Codiga, “Reflections on the Potential Growth of Mindfulness Meditation in the Law,” 7 HARV. NEGOT. L. REV. 109 (2002).
90. Id. at 110-111 (numbering added).
91. See, e.g., Stephen Batchelor, BUDDHISM WITHOUT BELIEFS, A CONTEMPORARY GUIDE TO AWAKENING (Riverhead, 1997), ALONE WITH OTHERS: AN EXISTENTIAL APPROACH TO BUDDHISM (Grove Press, 1983), Thich Nat Hahn & David Steindl-Rast, LIVING BUDDHA, LIVING CHRIST (Riverhead, 1997), Thich Nat Han, THE MIRACLE OF MINDFULNESS, (Beacon Press, 1992).
92. William S. Blatt, “What’s Special About Meditation? Contemplative Practice for American Lawyers,” 7 HARV. NEGOT. L. REV. 125, 126 (2002).
93. Buddha practiced meditation before he achieved enlightenment and “founded” the religion. While this does not discount the “religious intention” Blatt attributes to the practice, it challenges his assertion of the practice’s Buddhist origin. See Carus, THE GOSPEL OF BUDDHA, note 55, supra, and accompanying text.
94. Blatt at 137-138.
95. Id. at 138.
96. Id. at 139, but see Carus at 74 (“The Dharma . . . does not require a man to . . . resign the world, unless he feels called upon to do so; but . . . requires every man to free himself from the illusion of self. . . .”).
97. Id. at 130-134.
98. Id. at 140-141.
99. Scott R. Peppet, “Can Saints Negotiate? A Brief Introduction to the Problems of Perfect Ethics in Bargaining,” 7 HARV. NEGOT. L. REV. 83, 84 (2002).
100. Id. at 83.
101. Id. at 86.
102. Id. at 86-87.
103. Id. at 89.
104. Id.
105. Id. at 96.
106. For discussion of spiritual values in the ADR field, see, e.g., “Dialogue on the Practice of Law and Spiritual Values,” 28 FORDHAM URB. L. J. 991 (2001), and “Symposium, Faith and the Law, 27 TEXAS TECH. L. REV. 911 (1996).
107. Mindfulness Symposium, notes 7, 78, supra.
108. BLUE GUITAR, at 183.