Ep. 6: David Hoffman of Boston Law Collaborative

David Hoffman is the founding member of Boston Law Collaborative in Boston, Massachusetts and teaches courses on mediation and collaborative law at Harvard Law School. He was named Boston's Lawyer of the Year for 2016 in the field of mediation, by the book Best Lawyers in America and US News & World Report, and one of its best lawyers in ADR, Family Collaborative Law, Family Law & Mediation, and Civil Collaborative Law. In June 2016, David gave a TEDx talk (see the video below) in which he announced that he was stopping doing any litigation.

Listen Here:

David Hoffman's TEDx Talk:

Episode Transcript:

Rackham:

Welcome to the ADR Initiative. This is the podcast where you'll hear from successful mediators, arbitrators, collaborative law attorneys, coaches, and other alternative dispute resolution professionals about what they do, how they got here, and valuable lessons they've learned along the way. I'm your host, Rackham Karlsson. Today I'm talking with David Hoffman.

David has more credentials and accolades than I could possibly list here, so I'll just name a few. He's the founding member of Boston Law Collaborative in Boston, Massachusetts and teaches courses on mediation and collaborative law at Harvard Law School. He was named Boston's Lawyer of the Year for 2016 in the field of mediation, by the book Best Lawyers in America and US News & World Report, and one of its best lawyers in ADR, Family Collaborative Law, Family Law & Mediation, and Civil Collaborative Law. In June 2016, David gave a TEDx talk in which he announced that he was stopping doing any litigation. Welcome to the show, David.

David:

Thanks very much.

Rackham:

I'd like to just jump right in here. Obviously, that short bio only scratched the surface of what you do. Why don't you flesh out some details and tell us about what you do today?

David:

Well, what I'm doing today is a product of an evolution that started with my desire to use my training in law to make the world a better place. Initially, I thought I could best do that by doing various kinds of public interest litigation and pro bono litigation. I also needed to make a living, so I worked in a commercial firm in Boston, called Hill & Barlow. An awful lot of the time that I spent as a lawyer at Hill & Barlow, where I practiced for seventeen years, was devoted to representing an inmate on death row, employees challenging various corporate policies affecting their privacy rights, particularly in the area of drug testing, representing consumers, tenants, people of all kinds who needed legal help and couldn't afford it.

That was my vision of how to make the world a better place. What I discovered along the way was that litigation was a rather blunt instrument for accomplishing those objectives. For the vast majority of cases, mediation or other kinds of private dispute resolution worked a lot better.

Rackham:

Tell me a little bit about how you got into those other areas, then. You were doing litigation — were you doing ADR work at the same time or was that an evolution as well, that you sort of ended up transitioning from litigation into the other stuff?

David:

There was a defining moment for me. You mentioned the TEDx talk and I described this defining moment in the talk. It had to do with a roof case. It was a big roof, several acres of flat grocery warehouse roof. I remember working on the case for a bunch of years, and then I went off for a year to be staff counsel at the ACLU of Massachusetts, which was a great year. I really enjoyed it, but they only needed someone for one year. I came back to the firm. I had handed off this roof case to one of my colleagues. I came back, he handed me the file, and the case really hadn't progressed very far. It wasn't his fault. The defendant was being very difficult. The case took nine years. It was just kind of shocking to see that a fairly straightforward commercial case could take so long and be so expensive to the clients.

It was at that moment when I realized that this often a wasteful endeavor. I called up my law school advisor, Frank Sander, and asked for his advice. He encouraged me to get training as a mediator. He encouraged me to set up an ADR practice group in my firm.

I joined Hill & Barlow in 1985. From 1981, until I left in 2002, I was practicing as a litigator and also growing a practice in arbitration, mediation, and later collaborative law, while I was still at this fairly large law firm in downtown Boston.

Rackham:

How did it work out with that case then? The roof case? Did that end up being mediated? Did it settle through litigation? You mention that as a pivotal moment.

David:

Yeah, it was a pivotal moment because that case was, in some ways, kind of an outlier, but not totally. Pretty much every litigation matter I'd handled seem to take longer and cost more for the clients than really was necessary. The roof case took nine years and I think my client paid something like three hundred thousand dollars in legal fees, which it got back. Also, we did eventually settle. We did it by agreeing to appoint a special master to hold a hearing on one question, namely whether the roof failed or simply needed to be repaired. My client, the building owner, said it failed. We conducted a week long hearing, in front of a special master that we chose, and that the court then appointed.

One of the lessons of that case, besides the wastefulness of much litigation, was that when you can figure what are the crucial issues in a case, sometimes it's possible to parse those out, and handle those separately, and if you could resolve those, then the rest of the case will settle in a reasonable way. That's what happened at the end of this nine year litigation.

Rackham:

I think that goes back to what you said before about litigation being a blunt instrument. If you can identify just limited issues that maybe do require litigation, but find the rest of the pieces that don't require litigation and can be resolved by other means, you can save the clients not just money, but also emotional capital, time. So many benefits to not treating every issue as something that requires litigation.

David:

Exactly. One of my current cases is a collaborative divorce. The biggest issue in the case is the value of the business that the husband created. We jointly hired a business appraiser who spent a lot of time with us and really helped us figure out a number that makes sense as evaluation for the company. Then, because there's always the possibility that the company could sell for more or less than that amount, the other collaborative attorney and I worked out a structure where there would be some contingencies. For example, if the business sells within the first five years after the divorce, for a bunch more money than the agreed upon amount, a certain percentage of that would go to the wife.

There's a lot of creativity possible in mediation, collaborative law, and even in arbitration, because the outcome of arbitration can be constrained by the parties with either brackets, like a high low arbitration, a baseball arbitration. There are a variety of ways of tailoring the process to conflict, to the parties. That's what appealed to me about ADR generally, is that it just opens up the possibilities so widely for different kinds of resolution.

Sometimes what the parties need to do is to sit down together with a psychologist, or someone who's going to help them deal with the emotional issues. Sometimes, if it's a divorce, what they need is to sit down with a child specialist who can help them figure out the parenting issues. This kind of sitting down and talking together is not what happens in court. You have battling experts and battling parties. Each side is trying – it's a little bit like the presidential campaign, in a way. Each side is making statements which sound, in some cases, extreme. That's sort of what the adversarial process is like in court. It mimics, in a way, the adversarial qualities of our political system.

Rackham:

Yeah. It really does. Dan Finn likes to talk about how, when he was litigating, he got tired of making the other spouse look undeservedly bad and making his client look undeservedly good. That speaks to your point about extremes. Then, of course, you have the problem that a judge's power is limited, and in ADR clients have the freedom to, as you said, be creative and come up with solutions that are not only creative and work for them, but that a judge might not even have the authority to enter if it were in the judge's hands.

David:

That's right. Speaking about Dan Finn's comment, which I totally agree with, and his comment actually was a turning point for me, as I thought about not just switching to doing more ADR, but ultimately, this past year, deciding to do only mediation, collaborative law, and arbitration. I've thought about Dan's comment. I thought, "Well, what would it be like if, as a lawyer, I stood in front of a judge and, rather than depicting the other party as blameworthy or a bad person in some way, and my client is a good person and praiseworthy, if I just say to the judge, “Both of these people have their pluses and minuses. Unfortunately, they've reached a point where they can't stay together as marital partners, or business partners, or whatever it is." I think a judge would really welcome that kind of frankness and balanced view of things.

But imagine how the client would feel about it, particularly if that kind of candor and ability to look at both sides in a fair minded way, if it weren't reciprocated. In other words, if you as a lawyer are trying to help the judge see things three dimensionally, and the other lawyer is playing the role of a gladiator. That's going to make the client very unhappy. Unfortunately, we don't really have a culture in our courts of litigating in a way that allows people to bring out the best in each other. It tends to bring out the worst.

Rackham:

Yeah. That's so true. When I interviewed Amy Martell, she had litigated for a couple years before calling off all litigation in her practice. She said that she tried to bring a collaborative mindset to litigation, but I agree with you. I think it's very limited by who's across the table from you, if you're negotiating at a table, or who's standing next to you in the courtroom. I can remember from my litigation days, trying to have a conversation with very experienced attorneys, saying, "Well here's my thinking behind this," and being shut down. Just being told, "We're not interested in the rationale behind the position that you're taking." That's very frustrating. Now that I only do mediation and collaborative law, the people I work with are just so much more receptive to going down those paths and exploring the underlying interests.

David:

Yeah. I thought when I decided that I was going to leave Hill & Barlow after seventeen years, and create Boston Law Collaborative, that I would be attracting different sort of clients and I would be attracting people who are more settlement oriented. What turned out to be the case is that I attract the same mix of clients that I always have. Some people who are very skillful at negotiating and very settlement oriented, and some who are very belligerent.

The thing that has changed is that the people that I work with in mediation, the lawyers, the people I work with in the collaborative world, their lawyers, or financial professionals, or coaches, child specialists, are wonderfully collegial, mutually supportive, idealistic group of people. I don't fault the idealism of lawyers who go to court. I think they can be just as idealistic as anybody else. It's just that the setting of the courtroom creates incentive for competition and a culture of argument that is not conducive to bringing out the best in people. Unfortunately, it leaves lasting ill will in people who have been through that kind of battle.

Rackham:

I think you're right, that in the courtroom, like you said, the setting itself brings out something. I think it brings out a certain interpretation of what it means to be a zealous advocate. When you're sitting around a table, not litigating, you have the freedom to think of zealous advocacy as something broader, that there are interests other than financial interests, for example, that feed into what it means to advance your client's interests.

David:

Yes. I agree.

Rackham:

Now, I want to talk a bit about your professional journey. We've talked a lot about that. Can you talk a little bit more about your decision to stop litigating? Was there a pivotal moment for you, or a particular case that really shifted your thinking, or was it just something that developed over time?

David:

It's been developing over time. I think the pivotal moment came when I got invited to give this TEDx talk. I thought, "What message do I want to communicate?" At age 69, one starts to think about, "What footprints am I leaving in the sand as I walk along life's stage?" I thought to myself, "Maybe the time has come to ride one horse instead of two. Maybe that would be actually a better way to practice."

When I say better, I mean that in two respects. One is that it feels more in alignment with my values. In other words, if I believe that the best way to resolve most conflict is to sit down and talk together, with the help of an experienced neutral mediator, or with experienced lawyers like collaborative professionals, if that's what I believe, then maybe I should put my full effort into that. From an internal standpoint, that felt good.

There's also a practical dimension. It's very challenging when you're conducting a mediation practice, a collaborative law practice, and you schedule meetings and mediation sessions, to suddenly find out that one of your clients needs you to go into court right away. You have to reschedule a whole bunch of things. Mediation, collaborative law creates a much more predictable calendar. Litigation creates a very unpredictable calendar. Those two practices don't fit as well together as perhaps they should, if you want to make sure that you're honoring your commitments to all of your clients.

Rackham:

Yeah. That's been my experience as well. As much as I subscribe to the ideology of alternative dispute resolution, and as much as it really resonates much better with me internally than litigation, which made me very unhappy, there are personal benefits as well. Just having so much more control and predictability in your schedule. As a professional, it's very nice to have that freedom and that flexibility.

Now, shifting gears a little bit, some of the best lessons that we learn are, of course, from mistakes that we make. I was wondering if you could share with us one big mistake that you made in the process of building your business and what you learned from it.

David:

I think the biggest mistake that I made was going into practice of law without sufficient training in the area of psychology. I didn't study it in college. I didn't study it in graduate school or law school. Just as negotiation lies at the core of much of legal practice, I think psychology does as well. For many, many, many years, negotiation wasn't taught in law schools. Psychology, too, was not part of the curriculum when I attended law school, back in the early 1980s. Both of those subjects- negotiation more so than psychology, are a part of the law school curriculum today, at least as electives. So much of what lawyers and mediators do involves emotions in the part of the clients, but also on the part of the professionals.

One of my early cases, as a fairly new lawyer, involved representing a husband in connection with the divorce. He was very, very upset with his wife. I think it was his wife's decision to end the marriage. I think she may have been involved or became involved with another man. My client was beside himself. His instructions to me would alternate between on one day telling me he wanted me to become very aggressive in pursuing the litigation in this divorce, and then the next day he would say, "This litigation is too expensive. You need to settle this. Why can't you settle this?" We talked about settlement proposal. The next day he would say, "We're being to conciliatory here. We need to sit tall in the saddle and fight this. I'm not going to knuckle under." He literally vacillated from one day to the next. I found it just totally puzzling.

I've since done more reading and study in the area of psychology, and I understand a little better how someone could have one part of them wanting to settle and one part of them wanting to win. I've also had clients who had bipolar disorder, including one who had rapid cycling bipolar disorder. She did the same kind of vacillation from being conciliatory one day to being belligerent the next.

The idea that lawyers can go out and practice without studying these sort of basic aspects of human personality strikes me as just- it was a mistake. I should have done more studying. I certainly would encourage other lawyers and dispute resolvers to devote significant effort to learning more about human psychology.

Rackham:

That's great advice. Of course, we see a lot of psychological challenges in family law, but in any dispute situation, where people are confronting challenging external situations and internal situations, it can be helpful to have some grounding in psychology, and hopefully, through understanding the clients better and also our counterparts in the process better, we can help guide things toward a better, faster resolution.

David:

I remember one collaborative case that I had involving three brothers. I represented two of them. They were asserting a claim against their older brother. Both of my clients were pretty upset with him, but one of my clients was particularly upset. In the middle of a negotiation session, sitting in a conference room in my office, he tried to take a swing at his older brother. He literally tried to climb across the conference room table. We had to restrain him. It was one of the more surprising things that I've seen in the conference room here in my office.

I've had cases in which one of the parties got so upset she had a panic attack and passed out. We had to call 911. She was taken to the emergency room because she was so upset with her soon-to-be ex-spouse.

I remember one employment case where I was the mediator. The employee was actually the founder of a the foundation that he funded with his own money. It was a research foundation. This founder was into his eighties. He was very upset with all the people who were running the foundation. He had kind of stepped away from it and was in a consulting role. Finally, they terminated him because he kept saying all kinds of terrible, terrible things about the management at the foundation. He was demanding millions of dollars. It was really, he felt rejected. He felt betrayed. He felt insulted and hurt. His self-esteem was wounded. I said, "Well, it seems like they're not going to pay you millions of dollars to settle this. Is there anything else you want?" He said, "Yeah. I'd be willing to settle for no money at all if they would fire the entire upper management of the foundation." It was just pure revenge on his part, that he wanted that.

These kinds of situations call for a kind of understanding that goes beyond the pages of Getting to Yes or other handbooks — and very important and useful handbooks — about how to negotiate. It requires really sitting down with people and getting into a very up close and personal relationship with them, so that you can help them find a way to wise resolution.

Rackham:

That's great advice. On the flip side, what would you consider the single best decision that you've made in the course of building your business?

David:

I think the best decision was, after seventeen years, to leave what was a financially comfortable situation at a downtown Boston firm and go off and set up my own tiny firm, where during the first weeks it was just me and my assistant. We gradually grew over time into a boutique. It took me a long time to make that decision, because I tend to be kind of risk averse. I was worried. I didn't want to miss a mortgage payment or create any financial difficulties for my family.

After seventeen years, I felt I had enough in the way of clients and referral sources that I could leave. I have never regretted even a minute of the seventeen years that I spent practicing at Hill & Barlow, and I've never had a second of regret about creating my own little shop. There's a kind of personal quality that you can develop in a small firm that is really wonderful.

There's a lot of opportunity for creativity, so one of the things we did, for example, is we decided we were going to be a multi-disciplinary practice. We were going to involve mental health professionals and financial professionals in our work. That's turned out to be very useful. We decided that we were going to focus on collaborative solutions and make that our brand, so we called ourselves Boston Law Collaborative. That has caused me to feel wonderful about the footprints that we're leaving behind.

The third way in which I think we're different is that, because we're small, and because we believe in collaboration, we handle the internal decision making of the firm in a democratic and collaborative way. Ultimately, I suppose, the buck stops with me in terms of responsibility for decisions, but whenever we hire someone, everybody in the shop interviews that person. When we have important decisions, we sit down together.

We have a Thursday lunch meeting every week, and in that meeting, we go around the table. Each person in turn describes something going on in their life at work, some issue or case their working on, and something that's going on in their lives outside the office that's meaningful to them. By doing this every week, we've really gotten to know each other very well. I think that it helps the clients when you have a team that people know each other, trust each other, like each other, and are good at working together. That's what we're aspiring to do. That's the model that we're trying to create.

Rackham:

That's fantastic. Working with people who you like, and you get along well with, and where you have an office environment that's mutually supportive is so important. I remember one of my classmates in law school coming back from her summer internship and saying, "I hate the law. I don't want to be a lawyer," but she had spent the summer at a big corporate firm. I think what she was really saying was, "I hate working at a big firm for lots of partners and missing out on that atmosphere that you just described."

David:

Law firms, the big ones, tend to be hierarchical structures and while people can find support groups within, it takes some effort to do that. I think that one of the bigger problems with these big law firms is that in order to support very substantial compensation for the lawyers, and particularly for the partners, pay the overhead of a fairly fancy downtown office space, the lawyers need to work exceptionally long hours. In terms of having some kind of balance between your work life and your life outside the office, that's a real problem. It's a real trade off.

Now, unfortunately, law school is so expensive that many new lawyers are leaving law school with staggering amounts of debt. Some of them have to work in big downtown firms to earn enough money so they can pay off or pay down those student loans. I would be very happy to see a transition into a system where college and professional schools were free, and where people not only could attend such schools if they're qualified, regardless of their means, but they would also have the ability, once they graduate, to choose the kind of practice they want to go into.

For some people, working long hours in a corporate firm is terrific. That's what they want to do. They want to put in their time, serve an apprenticeship, learn the intricacies of corporate transactions or corporate litigation, make significant dough. Terrific if that's what they want. What I feel bad about is when I see students, and I teach students at Harvard Law School, I see many of them leaving law school with a lot of debt. They feel like they don't have a choice and so, some of the students who would really like to be doing something that's more in the public interest, simply cannot afford to do so, at least in the initial five, or ten, or maybe even fifteen years of their practice.

Rackham:

Yeah. Harvard does have some nice systems in place to encourage public interest work, but I'm not sure that most law schools have that. And you still need to end up doing work that falls within the category where you get reimbursed or forgiveness.

Shifting gears just a little bit now, what is one tool that you have in your office, or on your computer, or your mobile device, that you think every ADR practitioner should know about?

David:

Well, if you had asked me a couple of years ago, I would have said dial-in phone conferences are the greatest thing since sliced bread. In point of fact, I use them, dial-in services, pretty much daily. Some days, several times a day. I find that once you've met people in person, and you've gotten a sense of each other, an awful lot can be done on the phone and the dial-in services are potentially free. There are many free ones out there and their revenue model is they can make a little extra money if they sell you a couple of bells and whistles to add onto the service. Even when you pay the extra money for a bell or a whistle, it's still extremely inexpensive. That would have been a couple years ago.

Nowadays, I'm finding myself using video conferencing more. I've found that with each passing year, there are more and more services in addition to Skype, in addition to Google, that do an awfully good job.

I guess I should mention one other thing that's really changed a lot since I started practice. That is, the internet puts right on our desk so many tools that were expensive or hard to find. It could range from, on one hand, legal research, which now can be done on your desk through a computer very, very quickly and more efficiently than we used to do legal research, or if you're trying to do some kind of financial calculation. You're trying to find out the after tax consequences of a certain transaction, or you want to do an at-present-value calculation, you want some financial data about the value of a piece of real estate, you want an aerial view of some property that's under discussion. I remember in one mediation, the property was a superfund cleanup site and was slated for some development. I could use Google Earth to actually look at and almost walk around the site.

To have all these tools available to through the internet is a totally revolutionary kind of transformation of what it means to practice law and to do dispute resolution. It just broadens our horizons enormously. I think the impact of this is that the practice of law and the practice of dispute resolution are going to become more virtual. We don't need a downtown law firm library, with shelves, and books, and so forth that we once needed. We don't need the physical conference room if, once the parties have met, they can just talk on the phone very easily in a large group or in a video conference.

I think that by making the practice of law and dispute resolution more virtual, it's going to also create opportunities for balancing our lives outside the office more successfully. I think people will be able to look after their kids and have a schedule that includes some family time, some work time in ways that commuting to a downtown office building just didn't permit and still does not permit.

Rackham:

Those are all great tips, David. Which video conferencing service do you like to use?

David:

At the moment, I'm using zoom.us because the video quality and the audio quality are excellent, easy to make a recording, and have multiple people. The way I found out about it is, I think, worth mentioning. I was mediating a case involving the family that owns a lot of land and has other wealth. I went to the summer property that they owned and there were seventeen people who were going to be part of the process that day, but two of them couldn't be there in person. When I walked in, the family pointed out to me that there were two laptops on the table, each one set up with a video conference with one of the family members. Nowadays, you'd probably just have the one laptop and you'd have both images, but they wanted these images to be a little larger.

In any event, I said, "What service are you using?" They said, "zoom.us." What I discovered was, it was the quality of human connection, through this medium, was greatly enhanced by having such good technology. Who knows? Next year, it might be something else. We have to keep abreast of changes in the field.

I'll just mention one other thing with this family. One of the groups within this family consisted of the oldest generation in the family, who were in their sixties and seventies. We had one session in the mediation where we used this zoom.us, this technology. One of these elders in the family could not be physically present because she was in Paris, so we beamed her in using a laptop, and an LCD projector, and a little speaker. She was projected onto a whiteboard in a little conference room in my office.

I had these six siblings talking about the case. I asked them if some of the problems they're having now were anything like problems they had when they were young. They said, "Absolutely," and they had this very animated conversation, including their sibling in Paris, about a snowball fight that took place when one of them was like six years old. They still have a vivid recollection. They were still harboring resentment about this snowball fight. What amazed me was that they had an emotionally rich conversation across the Atlantic, through this technology. We had the older sibling up on the screen, pretty much life size, participating in the conversation.

That kind of technology has been around for a bunch of years, but as it gets better and better with each passing year, and as bandwidth increases, and so forth, it becomes more and more like an in-person conversation.

Rackham:

That's great. I think the closer you can get to in-person conversation through technology, the better off you are. Just this week, I was asked by a law firm in San Francisco whether they could distribute one of my articles to their clients. It's an article about just how awful email is for communication. I think that the farther we can get away from email, the closer we can get to approximating being there in person, the better off we are, the smoother the negotiations will go, the more opportunity there is for human connection.

David:

Well, let me just comment on that point. I think that the lesson that I've learned from the various means of communication, whether it's phone, or email, or video conferencing, is the following. There's certain kinds of communication that actually might be better in written form, whether it's delivered by email, or snail mail, or pony express, but it gives someone a piece of paper with some thoughtful comments that the other person needs to consider, because maybe it's a proposal that's unwelcome or there's an issue that is very sensitive. Sometimes they need to see it on a piece of paper so they can look at it, think about it, and not immediately react.

Other times, what's really needed is the kind of rich communication you get from in-person conversation. Of course, there are all the grades in between in-person and a piece of writing. I think we, as dispute resolvers, can help people be skillful in the way they present something. Right now, I'm working with somebody who needs to send a message to another party. I encouraged him to put it in writing, so that the other person could just kind of take it in, because it was a message that I knew the recipient was not going to be happy about. I wanted the recipient to have the time to reflect and respond in as skillful a way as possible. Does that make sense?

Rackham:

Oh, absolutely. We all need to be attentive to the process that we're setting up and making sure that what we're encouraging our clients to do is not dogmatic — in other words, we always have to meet face-to-face or we should never communicate by email — but that we're really tailoring it to the circumstances and making sure that it's the best fit for the clients, where they are in that moment.

David:

Right. Of course, everybody's living busier and busier lives, in the sense that we do more multitasking and so forth. Email, and voice mail, all these techniques provide us with a means of connecting asynchronously, which is sometimes important.

There's one other thing that I would highly recommend and that is, silence. I've recently come back from a weekend long silent meditation retreat, which was absolutely wonderful. I do meditate on a somewhat regular basis. Not weekend long silent meditation, but much, much shorter periods. I think that, for lawyers, our training usually doesn't emphasize or even include that kind of stepping back and contemplative practice, which I think is really useful for getting centered, kind of resetting, finding our center.

It is being talked about, and encouraged, and used more in some circles of legal and other professional practice, but I would love to see that taught more in the law schools and supported more within the Bar and other professional organizations. The idea that we can be at our best when we're not only physically healthy, but emotionally and spiritually healthy.

Rackham:

Yeah. There's been a lot of talk lately about meditation and mindfulness, and the benefits across the board in our lives, in our work, in our home lives, our physical and mental health. That's great. That's great advice.

Keeping it low-tech now, you've written a book, Bringing Peace into the Room, that has come highly recommended. I interviewed Jeanne Cleary and she recommended it. Aside from your own book, what's one book that you would recommend that every ADR professional have in their bookshelf or in their Kindle?

David:

Probably the most common answer to that question would be either Getting to Yes, by Roger Fisher, and Bill Ury, and Bruce Patton, or the book Difficult Conversations, by Sheila Heen, Doug Stone, and Bruce Patton. Both of those books are really foundational in the field of dispute resolution. Rather than add to the probably many voices that people that you've talked to, who have recommended those books, I want to suggest a different book. It's one of a family of books in the area of social psychology, that I think we in the dispute resolution field would benefit from.

One of the books I've read recently, called The Righteous Mind, by Jonathan Haidt. The book describes some of the reasons why we have such strongly held beliefs about what is fair and what is right, and how those beliefs are not really susceptible to logic. I think the book provides some useful guidance in understanding what makes us tick and what shapes our feelings about the things we care about most, whether it's our family, or our work lives, or politics. Some of those attitudes are very deeply ingrained, and understanding why logic by itself is not enough to address those feelings is important insight. Then we can move beyond trying to get people to negotiate those views to, instead, doing a better job of communicating about them, understanding them better. I think once people feel heard and understood, then they can step back a bit from the emotional charge that they bring to conflict, and come up with some common sense resolution.

Rackham:

Those are great recommendations, David. I'm going to add them to the show notes on the website, so anybody who listens to this can go to the website, and find links to those books, and add them to their own libraries if they don't already have them.

Sort of starting to wrap this up a bit now, what's one piece of advice that you would give to somebody looking to start or grow their ADR practice?

David:

Well, one of the standard pieces of advice that we give people is, "Don't quit your day job." The world of ADR, in terms of private practice, is one that is requires a slow building of a practice. I encourage people to build from what they already know. For example, if you're a psychologist, look for the kinds of work, look for the kinds of clients and cases that need the insight of a psychologist. If you're a lawyer, let's say business lawyer, look for the kinds of clients and cases that need your business experience and acumen.

Very often, in the dispute resolution field, we think of ourselves as simply process managers. It doesn't matter whether we're lawyers, psychologists, teachers, or what background we come from, what we bring to the table is simply process management. I don't think that's the case. In the world in which I practice, it doesn't seem to be the case. I think people come to us not only because we have good process management skills, but they look to us for some modicum of wisdom, or experience, or insight about what makes sense, what's workable. Those are the kinds of things that come out of life experience, work experience.

I think we have to avoid imposing our own ideas about solutions on the parties, unless of course, we've been hired as an arbitrator, in which case, that is our job description, is to make a decision for the parties. In mediation, collaborative law, our goal is to assist the parties in their negotiation. I guess I take the view of, while we might start with a facilitator approach, ultimately I think what people want is the benefit of our experience in a substantive way as well. The challenge is to figure out how to do that without dominating the parties or robbing them of self-determination. An interesting kind of balance to strike.

I would encourage people who are entering the field to use their wisdom, use their experience, use their contacts in the field from which they come as a resource. Reaching out, letting people know what you're doing in this new and different career, and why you feel so passionately about it as a way of making the world a better place.

Rackham:

That's great advice. I want to go back to what you said about not quitting your day job, because of course, one of the big questions that people have about ADR is, "Can I make a living doing this?" There are people, such as myself, Amy Martell, who is the very first interview for this podcast, who are exclusively ADR practitioners and making good livings. There's a number of us out there. For people who are worried, "Can I make a living doing just mediation," there are lots of other services that people can provide that are related to ADR and you mentioned drawing from the wisdom and the experience that you have. Those things can feed into some of those, what I call, ancillary services.

Next week, in fact, I have an article coming out on the blog where I talk about what some of those services are for people who are afraid of, "Will I be able to earn an income?" They can look at that list and say, "Oh, here's a whole range of services I might be able to provide that will help me have additional streams of income as I go down this path of building an ADR practice."

David:

I completely agree with that. A lot of times what people need is negotiation coaching, or facilitation, or dispute resolution process design, or sometimes just some education about how to communicate or negotiate better. Those are all services that, with our training in mediation and collaborative law, we can offer people.

Rackham:

Yeah. The theme of mentorship has also come up a couple of times in my interviews. That's also really great advice. Well, David, thank you so much for your time today. Before we go, what's the best way for someone interested in your services to reach you?

David:

If they go to the website for Boston Law Collaborative, they'll find contact information and other resources. It's simply www.bostonlawcollaborative.com.

Rackham:

Perfect. Thank you again, David.

David:

You're welcome. It was a pleasure talking with you.

Rackham:

That's today's show. Thanks for listening. If you enjoyed the show, please leave a review on iTunes. You can find show notes for this episode, including links to any books and other resources mentioned, at zephyrlaw.com/initiative. I have some more great guests lined up, so be sure to join me next time for another addition of the ADR Initiative.