Aug 30, 2017
A Portrait of Integrative Law:
An Introduction Via Profiles of Three Marin Practitioners
Aug 30, 2017
By Robert Rosborough
Have you heard of the “integrative law” movement? My guess is no, since many of its practitioners haven’t heard of it either. So far, “integrative law” is more of a descriptive moniker than a unified movement. It encompasses a diverse group of innovative practices, many of which don’t carry “integrative” in their names. Some, like collaborative divorce, have been around for a while, while others, such as “conscious contracts” are newer. What integrates these practices into something that might be called a movement? Not surprisingly, there is no widespread definition for a rapidly evolving field and no doubt many people would define it in many different ways. But perhaps at its heart, it is interdisciplinary, seeking to integrate knowledge, perspectives, approaches and values from other fields into the practice of law.
Why? To some extent, integrative law is simply recognizing advances from other fields that bear on what law does. In this era of more data about virtually everything, law risks its legitimacy if it ignores developments about how the world and the people in it actually operate. When I teach conflict resolution, many of my students are surprised when I spend time teaching about human perception and memory. But the limitations of perception and memory not only affect how we resolve conflict, they are sometimes the source of conflict. And new knowledge about them may have profound effects on how we address using them in the legal system. One example of this is the criminal justice system. From how we conduct lineups to what influences a police officer’s split-second decision to fire a weapon, ignoring knowledge from other disciplines keeps us from the lofty goals of the law: truth and justice. 
Integrative law also recognizes the broader effect of conflict on our lives beyond simply the material aspect and entails a belief that the law should have a role in addressing the full effect of conflict on individuals and society, including the emotional and psychological, even physical and spiritual effects. This idea can be unnerving to many lawyers. For the most part, current legal education still embraces the law as a purely transactional endeavor: pay money to Jill, prohibit Don from doing X. Furthermore, research has shown that the law as a profession attracts people who on average are less emotionally in touch with themselves and others, something that was certainly true for me when I started law school. But research is also demonstrating that humans are not the rational decision-making machines that the law often presupposes. By not accounting for the full humanity of humans, are we really surprised at the negative public perception of lawyers and the legal system or at the high rates of dissatisfaction and unhappiness in the profession itself (indeed, the highest of any profession)?
As in introduction to integrative law, here are brief profiles of three Marin lawyers who are leading practitioners.
Most of Pauline Tesler’s over four decades as a lawyer has been spent as a family lawyer, primarily practicing collaborative law. She literally wrote the book on collaborative divorce, now in its third edition from the ABA.  Collaborative divorce is an alternative to litigation for ending a marriage and one of the earlier forms of integrative law. Each spouse is represented by a lawyer, but the lawyers agree not to represent them in litigation and instead to work as a team. The team includes mental health and financial professionals with the goal of fully considering the needs of each spouse and their children in order to craft a marital settlement agreement that everyone is happy with and is not limited by the constraints of how a court would decide the issues.
Asked why an integrative approach is important, Tesler says that lawyers are practicing an outdated approach to the law that ignores the enormous advances in biological and social sciences that illuminate how people actually experience conflict and how they make decisions. She calls incorporating this knowledge “neuro-literacy.” (“What is Neuro-Literacy and Why Should You Care?”) She points out that if you ask a client to describe the problem that brought them to your office and what they want going forward, the answer will never be just about the legal issues and that lawyers do a disservice to their clients by addressing only those. Particularly because so little of the law involves going to trial anymore, conflict is about settling, which means much more comes into play in determining the outcome than the narrow legal issues.
Tesler is a prolific speaker, teacher and writer, spending over fifty percent of her time promoting an integrative approach to the practice of law, including teaching lawyers to be neuro-literate. She is so passionate about its importance that she has founded the Integrative Law Institute at Commonweal. What is the incentive for lawyers to learn about this? First and foremost is that it is a way to achieve better results for your clients, allowing you to achieve more of a client’s goals than a narrow focus on legal issues allows. Perhaps even more compelling is that some lawyers are already practicing this way and they have an advantage over those who don’t.
Steve Sulmeyer embodies the term “integrative”: he is both a lawyer and a psychologist. Working closely with the Bench, he started the popular Interdisciplinary Settlement Conference program in the Marin courts, where both a lawyer and a mental health professional work together to settle cases (and no, he does not count as both at once.) He is also the founder of Integrative Mediation Bay Area, a group whose premise is more effective and efficient conflict resolution through the use of co-mediators: a lawyer and a mental health professional or financial professional, as appropriate. (Full disclosure: I am a member of IMBA.) The feedback from clients, lawyers (and judges in the case of ISCs) has been universally positive. Clients appreciate that they are seen as whole people in the process and that reaching resolution is not simply ticking off a set of legal boxes to determine the outcome.
Asked about the current state of the practice of law, Sulmeyer points out that it is literally medieval. The Magna Carta revolutionized society by expanding the rule of law but the way we settle disputes has been slow to evolve since then. Sulmeyer believes that society is at a point where our conception of justice is broader than simply paying money to right a wrong but the legal system is only starting to catch up to address these broader issues and incorporate other aspects of conflict besides the monetary. Experience from ISCs and integrative mediation shows that addressing facets of the conflict beyond the narrow legal issues not only makes for more satisfied clients but makes it easier to settle. Ask any mediator and she will be able to cite a case where something as “simple” as an apology made the difference in settling. In our current system, even if you ask a client who has “won” his case, he is unlikely to feel good about the process and may not even feel good about the result because it does not address all of his needs.
Part of changing the system as a whole requires that individual lawyers change themselves, Sulmeyer notes. He encourages lawyers to explore what other disciplines have to offer for their particular practice. Opening ourselves up this way will change the way we interact with our clients and what resolving their issues looks like. Echoing Tesler’s observations about the stress and dissatisfaction in the profession, he believes that doing this will improve not only our clients’ levels of satisfaction but our own as well.
Eileen Barker is a mediator who is also a leading authority on forgiveness. She notes that mediation itself is an early manifestation of integrative law. But she found that even in mediations that led to settlement, clients often went away with hostility and mistrust. Clearly, the process was not addressing the broader needs of many clients. She wondered what it would take to bring peace to these cases and recalls being struck by something that Ken Cloke said in his book Mediating Dangerously: that conflict is not fully resolved until people forgive.
Recognizing how rare forgiveness was in the legal system, she began researching it. What she found surprised her. Perhaps foremost was that forgiveness is something we do for ourselves, not the person we are forgiving. It is a unilateral action and is often not even communicated to another party. She also found that forgiving is a teachable skill and she has been teaching it for the last fifteen years.
Barker points out that forgiveness doesn’t mean that you are in any way condoning or excusing what happened. And it does not mean that litigation is unnecessary. But it can mean that litigation is a much less painful experience for all involved, including the lawyers. Extensive research shows the damaging effects of not forgiving and that the primary benefit of forgiving is to the forgiver.
Not surprisingly, you cannot make someone forgive. But as Barker sees it, lawyers have an ethical obligation to serve the best interests of their clients and addressing conflict more fully is part of that ethical obligation. This does not mean that every lawyer needs to be an expert on forgiveness but she believes that every lawyer should have sufficient knowledge of it so as to be able to better counsel clients who just can’t let go. Putting forgiveness on the menu for clients “can be a huge gift,” she says.
Asked what else lawyers can do to address conflict more fully, she says that her number one piece of advice is to listen. Listening well can tell us what our clients really need. Beyond that, she believes that lawyers should educate themselves about emotional intelligence. Doing so will mean that more aspects of a conflict are likely to be addressed, leading to greater healing and to greater client and professional satisfaction.
Barker is encouraged that the profession is changing as more and more lawyers are requesting her on-site trainings, including internationally. Her long-time forgiveness coaching and teaching practice is expanding into a formal Forgiveness Training Institute. Short of attending a training, you can learn more about forgiveness in legal disputes from her law review article on the topic, which you’ll receive if you sign up for her mailing list (which you can do here).
It is clear that emotion plays a powerful role in conflict and decision-making. Some argue that it is not the lawyer’s but the therapist’s job to address it. But life is not so easily compartmentalized and we do a disservice to our clients to try to make it that way. The concept of “emotional intelligence” has achieved buzzword status to the degree that it makes some think of it as pop psychology. Emotional Intelligence is actually an umbrella term for a set of skills that include recognizing and identifying your own and others’ emotions, using them to guide behavior and managing them to achieve your goals. Each of these is a learnable skill. So much so that they are now part of leadership and management training.
Many people do not realize that meditation and mindfulness training are not just about stress relief but that stress relief comes from increased emotional intelligence. Google’s in-house mindfulness program (the Search Inside Yourself Leadership Institute) is explicit in training for this. When I teach meditation, we spend ample time discussing emotion. A useful analogy is exercise: we don’t expect our bodies to improve or even stay in shape without exercise—meditation is doing the same for the rest of you.
It is also apparent that highly personal conflicts are where integrative law has advanced the furthest, but the lessons are relevant to all contexts, including corporate and transactional work. As a former corporate lawyer, it was apparent to me that individuals drive conflict, make decisions and make deals, although as Tesler wryly observes, conflict stops when the budget for it runs out. And transactional work, both corporate and individual, is about preventing conflict down the road.
Integrative law means creating relationships and legal structures that acknowledge the full humanity of the participants. In estate planning, I sometimes hear that, “It’s my money, I can do what I want with it and I don’t need to tell anyone what that is.” I certainly agree with the first part of that sentiment and I don’t force anyone to talk about anything they don’t want to but it does get clients’ attention when I ask how much they care about having their estate plan followed and whether it matters if much of the money ends up going to lawyers instead.
Integrative law is just getting started. Evolution is messy. It involves mutation and adaptation and failure. But if nature can evolve dinosaurs into birds, surely lawyers can evolve a medieval practice into one that more fully addresses our human needs. Or perhaps we will go the way of the dinosaurs who did not adapt.
 Law Professor Adam Benforado’s recent book, Unfair: The New Science of Criminal Injustice (which I have not yet read) explores some of these issues. Here is a link to an NPR interview with him.
 Published in 2016 and available directly from the ABA here.
Rob Rosborough recently became Of Counsel to Monty White LLP. He is a mediator, teacher and attorney. His mediation practice focuses on disputes where an ongoing relationship is at stake, particularly elder/adult-family conflict. He maintains a general advisory and transactional law practice focusing on personal and small business issues, including end-of-life planning. Rob also teaches conflict resolution skills for use in everyday life to older adults at USF’s Fromm Institute and helps lawyers cope with the stresses of practice and life by teaching them meditation skills as a certified iRest® meditation teacher.