Here is Nelson Mandela in the office of Mandela & Tambo, SA’s first black law firm. Mandela combined a lawyer’s intellect with the wisdom of a tribal elder. We need more lawyers with these skills.

He was an Integrative Lawyer and believed in the concept of “Lawyers as Peacemakers” decades before these terms were used. The Integrative Law Movement is only now asking how we can bring the wisdom of tribal elders to law and how we can shift focus from exclusively a debate on “rights” to what is in everyone’s best interests, not only the individuals but also the community and the planet.

Integrative Lawyers today are learning about dialogue, about Non Violent Communication and Powerful Non-Defensive Communication and forgiveness and reconciliation. These are Mandela skills! The narrow set of skills being taught in law schools is not enough. Being a Multi-Dimensional Lawyer is knowing when to shift from being a Fighter, to being a Designer and Problem-Solver. Mandela’s story shows us this journey. He put down his weapons and learned the skills of negotiation and mediation, diplomacy and problem-solving. He learned how to understand “the Other”.

There are many, many parts of the justice system that are broken. We need to support those who are trying to fix it. Like Mandela, many Integrative Lawyers know that sometimes one has to become a lawyer to change the legal system from the inside.

So this week, as we honour Madiba, the most revered lawyer-turned-statesman, I want people to see another side to the much maligned legal profession. And I want to ask you to support Integrative Lawyers who are challenging the current legal paradigm. Support the lawyers who are brave enough to admit they’re taking a course on “reconciliation” or “Mindfulness”.

How many young lawyers out there, inspired by Gandhi or Mandela have chosen the legal profession in order to make a difference in the world? And how many are finding their passion ignored or ridiculed at our universities and law firms? Before these lawyers quit and find something else to study, I want them to know about the Integrative Law Movement. To know that they are not alone in thinking they can use legal skills to heal individuals, families and society.

Reflect on this:

“I regard it as a duty which I owed, not just to my people, but also to my profession, to the practice of law, and to the justice for all mankind, to cry out against this discrimination which is essentially unjust and opposed to the whole basis of the attitude towards justice which is part of the tradition of legal training in this country. I believed that in taking up a stand against this injustice I was upholding the dignity of what should be an honorable profession.”

To all lawyers reading this:

What are you doing to uphold the dignity of what should be an honorable profession? 

What contribution are you making to the justice for all mankind?

“How much are we, as lawyers, limited by what we know and understand about law and legal systems, which prevents us from experiencing what is and what could be possible, for our clients?”

The above thought is from notes I took during Collaborative Divorce training by my mentor and fellow legal visionary, Pauline Tesler, who was brought to South Africa by the Centre for Integrative Law in April 2013. You can read more about her trip and trainings here.

This thought, around the limitations of lawyer’s thinking has been wandering around my mind for the last few weeks as I try to make better sense of what exactly this means. I share Pauline Tesler’s view that lawyers, unknowingly, and as a result of their specialised training, are often limited in their ability to solve problems in the most client-centric way.

I think that one of the major causes of this is that lawyers are trained to focus – to sift through masses of information and choose the critical issue on which the case will turn. This is a significant skill – the ability to sniff out the most pertinent issue when wading through a morass of unnecessary paperwork and extraneous detail. But as I see it, there are two major downsides to this ability:

1. Not seeing the whole picture
2. Not seeing non-legal solutions

Without our being aware of it, we lawyers have been trained so consistently in convergent thinking that this way of thinking has become an unquestioned habit. Wikipedia gives this explanation:

Convergent thinking is the type of thinking that focuses on coming up with the single, well-established answer to a problem.^[1] It is oriented toward deriving the single best, or most often correct answer to a question. Convergent thinking emphasizes speed, accuracy, and logic and focuses on recognizing the familiar, reapplying techniques, and accumulating stored information.^[1] It is most effective in situations where an answer readily exists and simply needs to be either recalled or worked out through decision making strategies.^[1] A critical aspect of convergent thinking is that it leads to a single best answer, leaving no room for ambiguity. In this view, answers are either right or wrong. The solution that is derived at the end of the convergent thinking process is the best possible answer the majority of the time.

The opposite of convergent thinking, is divergent thinking and it’s my view that this is what lawyers need more training in. So let’s look at the definition of “Divergent Thinking”:

Divergent thinking is a thought process or method used to generate creative ideas by exploring many possible solutions. It is often used in conjunction with convergent thinking, which follows a particular set of logical steps to arrive at one solution, which in some cases is a “correct” solution. Divergent thinking typically occurs in a spontaneous, free-flowing manner, such that many ideas are generated in an emergent cognitive fashion. Many possible solutions are explored in a short amount of time, and unexpected connections are drawn. After the process of divergent thinking has been completed, ideas and information are organized and structured using convergent thinking.^[1]

And now for the interesting part – if lawyers are so smart, why are they not able to see the faults in their thinking? Why are they not able to adopt a divergent approach to problem solving? Wikipedia has this to say:

“Psychologists have found that a high IQ alone does not guarantee creativity. Instead, personality traits that promote divergent thinking are more important. Divergent thinking is found among people with personality traits such as nonconformity, curiosity, willingness to take risks, and persistence.”

Lawyers are trained to be risk-averse, they are experts in compliance, and they are paid to help everyone adhere to the accepted norms and standards of society. (I’m generalising here, but you get the picture). Lawyers are exactly the opposite of the types of people likely to think in a divergent way.

One of the many reasons mediation is growing, and will continue to grow as an alternative to litigation is that mediators are trained to think as broadly as possible, whereas attorneys, and advocates are trained to narrow down the options. Instead of seeing a huge range of possibilities and ways something could be resolved, the lawyer sees only one – the most expedient, and of course law-based solution. In fact, the entire way our court system is structured is around convergent thinking –  if advocates don’t include in a  prayer for specific relief (“my client seeks X Y and Z”) then he is barred from asking for this later in the trial – regardless of whether it might bring a swift and speedy resolution to the trial and make all the parties happy.

What does this mean for the legal profession? I think we need to draw lawyers’ attention to how they think, not just the content of their thinking, but the process. The best work for this, to my knowledge, is Edward de Bono, the international bestselling author of Lateral Thinking and Six Thinking Hats. I’m so passionate about his work that I am qualifying as a de Bono consultant so I can teach this stuff myself to law firms and lawyers-to-be.  De Bono is the leading authority in the field of creative thinking and the direct teaching of thinking as a skill.

Over and over again, I come back to the notion that IQ is not sufficient for a lawyer to be a good lawyer. Everywhere we are being told that the legal profession needs to change. The introduction to the Altman Weil Law Firms in Transition Survey 2012 states

“These findings suggest that change management will be a required core competency of law firm leadership going forward. The leadership challenge will be to drive change, not just react prudently to external conditions.”

If you’re a lawyer reading this, my challenge to you is take the next 20 (non-billable) minutes and write this in the middle of a blank page:

“How much are we, as lawyers, limited by what we know and understand about law and legal systems, which prevents us from experiencing what is and what could be possible, for our clients?”

And allow yourself to brainstorm – using a spider chart, random lines linking things, bubbles and colours, rather than using boxes, (these are all creative thinking tools) –  what could be possible for your clients if YOU could be open to change?

Ps. The ways in which lawyers don’t see the non-legal solutions will be explored in a separate post.

So here it is: the long awaited ATTORNEYS OATH – that is known by very few attorneys in South Africa, despite the fact we all had to swear to this when we were admitted.

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

I,  do swear/affirm that I will truly and honestly demean myself in the practice of

ATTORNEY

according to the best of my knowledge and ability, and further, that I will be faithful to the Republic of South Africa

……………………………………………..

The deponent acknowledges that she knows and understands the contents of the declaration.       

AFRIKAANS VERSION

IN DIE HOOGGEREGSHOF VAN SUID-AFRIKA

(WES-KAAP Hoë HOF, KAAPSTAD)

 Ek sweer/bevestig dat ek my eerlik en opreg in die praktyk van

ATTORNEY

na my beste wete en vermoë sal gedra en verder dat ek trou sal wees aan die  Republiek van Suid-Afrika

Die verklaarder erken dat sy vertroud is met die inhoud van die verklaring en dit begryp.

I think the Afrikaans version is better. With regards to the English, well I think we have a problem here.   While the dictionary definition of “demean” shows:                                             

de·mean

It’s time for a new oath.

Feel free to comment.   

If you are an attorney and you believe it is time for us to create a new, voluntary oath, along the lines of the initiative by MBA students, please read the information below and get in touch.         

The MBA Oath is a voluntary student-led pledge that asks graduating MBAs to commit towards the creation of value “responsibly and ethically.” As of January 2010, the initiative is driven by a coalition of MBA students, graduates and advisors, including nearly 2,000 student and alumni signers from over 500 MBA programs around the world.^[1] By formalizing a written oath and creating forums for individuals to personally commit to an ethical standard, the initiative hopes to accomplish three goals:

1. to make a difference in the lives of the individual students who take the oath,
2. to challenge other classmates to work towards a higher professional standard, whether they sign the oath or not, and
3. to create a public conversation in the press about professionalizing and improving management.^[2]

MBA Oath (short version)

As a manager, my purpose is to serve the greater good by bringing people and resources together to create value that no single individual can create alone. Therefore I will seek a course that enhances the value my enterprise can create for society over the long term. I recognize my decisions can have far-reaching consequences that affect the well-being of individuals inside and outside my enterprise, today and in the future. As I reconcile the interests of different constituencies, I will face choices that are not easy for me and others.

Therefore I promise:

• I will act with utmost integrity and pursue my work in an ethical manner.
• I will safeguard the interests of my shareholders, co-workers, customers and the society in which we operate.
• I will manage my enterprise in good faith, guarding against decisions and behavior that advance my own narrow ambitions but harm the enterprise and the societies it serves.
• I will understand and uphold, both in letter and in spirit, the laws and contracts governing my own conduct and that of my enterprise.
• I will take responsibility for my actions, and I will represent the performance and risks of my enterprise accurately and honestly.
• I will develop both myself and other managers under my supervision so that the profession continues to grow and contribute to the well-being of society.
• I will strive to create sustainable economic, social, and environmental prosperity worldwide.
• I will be accountable to my peers and they will be accountable to me for living by this oath.

This oath I make freely, and upon my honor.

Why should you, as a lawyer, care about Neuroscience?

This is part 4 of my series in Neurolaw – in which I provide some extracts explaining developments in legal thinking that you may not be aware of.

Just found yet another organisation looking at the benefits of Neuroscience to other fields: The Centre for NeuroScience And Society at the University of Pennsylvania. 

Why Neuroscience Boot Camp?

Neuroscience is increasingly relevant to a number of professions and academic disciplines beyond its traditional medical applications. Lawyers, educators, economists and businesspeople as well as scholars of sociology, philosophy, applied ethics and policy are incorporating the concepts and methods of neuroscience into their work. For any field in which it is important to understand, predict or influence human behavior, neuroscience will play an increasing role. The Penn Neuroscience Boot Camp is designed to give participants a basic foundation in cognitive and affective neuroscience and to equip them to be informed consumers of neuroscience research.

A testimonial about the course:

“The Penn Neuroscience Boot Camp provides a well-planned and accessible introductory curriculum, delivered by a team of terrifically engaging speakers. Short of enrolling in a full-time neuroscience program, this is the best available immersion. So people wanting to learn the basics about neuroscience, and why it is so significantly affecting so many disciplines (including law), should take this course.”

Warning: it does appear from photos on the site that they served a cake made like a brain that looks unbelievably gross but apart from that the course seems good.

“… no woman is really an insider in the institutions fathered by masculine consciousness.” Adrienne Rich

This post is actually a comment I made regarding Pierre de Vos’  post on Constitutionally Speaking which you can read here. These are some extracts:

Currently, only two of the eleven judges on the Constitutional Court are women. For a while there were three women on the Court, but in our patriarchal society it is no surprise that this state of affairs did not last.

For the latest appointment the JSC shortlisted five candidates for interviews – all five of them male.

Judges Selby Baqwa; Lebotsang Bosielo; and Brian Spilg are all competent lawyers, but none of these judges have (as far as I can tell) demonstrated any progressive streak or deep insight into the ways in which our legal culture could and should be transformed. Advocates Jeremy Gauntlett and Mbuyiseli Madlanga are both good advocates, but I suspect they suffer from the same deficit than the nominated judges: a lack of legal imagination and daring and a lack of enthusiasm for the transformation of the legal system.

how many of the shortlisted candidates have a deep commitment to feminism and insight into the manner in which seemingly neutral legal rules often promote the interests of men (and male domination) in our society?

I have been fascinated by the studies from Harvard and other well-recognised journals and publications that show conclusively that companies with equal numbers of women on the board, perform better. It’s not that women are better than men – simply that by having balanced boards the company is able to harness different ways of thinking about the world; different approaches to problem solving – it’s like doubling your ability to see the issues at hand. The same arguments should be made for the bench of the Constitutional Court and all courts.

However, in the legal profession, new research is providing evidence that women lawyers are forced early on to abandon their female way of viewing the world and the feminine approaches to problem solving. How? Because the law school curriculum and law firms themselves and the Bar are so deeply mired in a patriarchal mindset that the only way women succeed and climb the ranks in these places is to show that they can adopt a male mindset. This is highly detrimental to the profession because to put it bluntly it means there is no harnessing of this “other” perspective if all the women who make it are thinking and behaving exactly like men.

This is not to say that we don’t need women on the bench! But I think it’s important to add to the debate around how many women are on the bench this issue:   our failure to allow women lawyers to bring their fullest contribution to the profession. The way we educate lawyers actively discourages emotions. As mentioned above, there is now research that shows that these areas of the lawyers’ brain are undeveloped as a result! In other words – there is physical evidence which gives deeper understanding as to why lawyers are referred to as “sharks”.

The CIL is bringing an expert in neuro-literacy for lawyers (accredited by the American Bar Association) to SA in April.  Her name is Pauline Tesler, she’s the founder of the Integrative Law Institute in San Francisco and I’ve written about her here.

I would love to set up a platform for a panel discussion around gender and law while Pauline is in South Africa in April 2013. … I’ll send that out into the Universe and see what comes back.   In this realm I am also working with an Executive Coach specialising in Gender issues, on a programme for law firms, particularly around assisting women lawyers to focus on retaining their ability to think like women but express themselves in ways that men can understand. This is critical for them to succeed in male dominated work places.

Watch this space! Mail me using the contact tab on this blog if this interests you and you’d like to know more.

Sometimes movement appears chaotic, such as the movement of clouds or the swirling motion of a liquid. Yet when these movements are plotted by scientists onto 2 or 3 dimensional graphs, it emerges that they are not random. Instead, they form into strange and beautiful shapes which show that there is a complex self organising structure underpinning the chaotic system.  These are known as “strange attractor patterns”.

As Margaret Wheatley, the systems thinking expert, explains in Leadership and the New Science, when one is trying to “fix” a system often this requires the existing system being broken or dismantled. The system then goes into a period of oscillation swinging backwards and forwards between different states.  The final state in a system’s movement away from order is chaos, although not all systems move into chaos. We tend to see chaos as a bad thing because it’s totally unpredictable, but high energy chaos or disorder actually contains the seeds of order. Just as we think the system has reached the point where everything should fall apart, the strange attractor comes into play and a new kind of order emerges from the chaos.

I am one of many people in the Integrative Law Movement who see the legal system as broken. This statement obviously requires detailed substantiation but for now I shall limit this to mentioning these already established factors:  The legal profession is badly regarded by clients, often fails to reach any of the goals it has set for itself (managing conflict) and is filled with disillusioned lawyers who had once hoped to make a difference in society. (for more information refer to Susan Daicoff’s explanation of the tripartite crisis in the profession). Although it’s not suggested that the entire legal system could or should be dismantled, there are parts of the system, or systems within systems, which require fundamental re-organisation.  For example, legal language for many centuries has remained virtually unchanged with the result that most people can’t understand the contracts by which they are bound, without legal assistance. Sentencing drug addicted offenders to prison is another system that has been dismantled in some parts of the world after years of research proves that such practices serve neither the offender, the victims of the crimes nor society at large.

Jurisprudence is founded on principles of maintaining the status quo, mitigating risk, quantifying the immeasurable, reducing uncertainty. All of this means lawyers operate poorly in disorder or chaos. But the world is shifting very fast and the legal system is being forced to change to keep pace. The legal profession will have to prepare itself to deal with chaos however uncomfortable this may be.  Old systems need to be abandoned in order to bring new ones into being. Changes may include embracing new technology; creating new billing systems; developing new ways to structure law firms; looking at alternative sentencing mechanisms for criminals (particularly youth and addicted offenders); pioneering approaches such as collaborative law divorce (removing court from the process) or teaching lawyers to be healers and peacemakers instead of soldiers armed for battle.

When collaborative law in divorce was introduced many thought that dismantling the current divorce regime was untenable and unsustainable and that clients would not want it. But today more than 25 000 lawyers across the world have been trained in and are practising collaborative law divorce and thousands more are seeking such training. It was originally thought that court brought order to the divorce process and that facilitating an adversarial divorce without the court structure in place would be chaotic but in fact the opposite proved true. Someone was bold enough to challenge the existing system.

It is time for change but in order to change, legal professionals will have to start examining their own deeply entrenched inclination not to change. What’s holding you back from change?