Fall 2010-#10. The Empathy Debate: The Role of Empathy in Law, Mediation, and the New Professionalism.

Authorby Emily J. Gould, Esq.

Vermont Bar Journal


Fall 2010-#10.

The Empathy Debate: The Role of Empathy in Law, Mediation, and the New Professionalism

THE VERMONT BAR JOURNAL Volume 36, No. 3 Fall 2010 The Empathy Debate: The Role of Empathy in Law, Mediation, and the New Professionalism by Emily J. Gould, Esq. "The challenge for future generations will be to define what is most essentially human. [T]o acknowledge plaintiffs is simply, when all is said and done, a recognition of our common humanity."

Baker v. State, 170 Vt. 194, 229 (1999) (emphasis added)

A manager and employee sat face to face in a mediation of an employment matter in which I was the mediator. Each was angry and entrenched in his view of the other. The employee believed that the manager held a grudge against him, which was revealed when the manager failed to make certain training opportunities available to the employee. The manager denied the grudge and countered that the employee's claim was disingenuous, as evidenced by the fact he had failed to even fill out the paperwork for the training. Outraged and exasperated, the employee explained that he had not filled out the paperwork because he was afraid to fill it out himself and needed assistance with it. For a while there was silence between them. The manager looked away. When he spoke, he spoke about himself. "I have always needed to have my wife fill out paperwork for me because I am dyslectic. I've always felt embarrassed about this and so it never occurred to me that anyone else might have a similar problem." There was more silence, and then the real negotiation began. Though other issues remained in the mediation, once this "recognition of common humanity" took place, the case resolved soon thereafter.

The Debate

In his landmark decision quoted above, Chief Justice Amestoy articulated a definition of empathy, "recognition of our common humanity," that illuminates the transformative moment in this employment mediation and poetically expresses the essence of it. The Baker decision not only put empathy on the legal map in Vermont, but also framed it as a critical ingredient in creating a sustainable future for our field. It was not until over a decade later that the controversy over the role of empathy in law heated up when President Obama announced that he included it in his criteria for Supreme Court appointment. A firestorm ensued over the relevance of empathy to law.(fn1) The topic was so hot, that neither of his Supreme Court nominees would touch it during their confirmation hearings.(fn2)

But the empathy question is broader and more relevant to the practice of law than the debate on its relevance to the judicial process and deserves a second look from our field. In fact, some predict that empathy is the key ingredient to the future of law practice. According to social commentator Daniel H. Pink, work that can be reduced to rules, and thus requires little empathy, will disappear from North American countries, and with it will go much of the legal work that has been offered here in the past. According to Pink, the lawyers who will remain are "[t]hose who can empathize with their clients and understand their true needs ... [E]mpathic abilities have always been important to lawyers-but now they've become the key point of differentiation in this and other professions."(fn3) Authors reflecting on the future of law also predict big changes in our field.(fn4) Law is about to become far more interdisciplinary and more like a business than a profession.(fn5) Under these circumstances, we can no longer hide behind a traditional sense of what it means to think like a lawyer. Those who embrace the innovations of other disciplines stand a chance in a rapidly changing market for legal services.

Indeed, other professions have picked up the empathy ball and run with it. In medicine, empathy is a staple of the medical school curriculum. Doctors use empathy to determine the medical needs of their patients, finding that this increases both efficiency and accuracy.(fn6) The business community has jumped on the empathy bandwagon and has found that it increases the bottom line.(fn7) Just as empathy is used in marketing, sales, and product development, it has application not only to the client interview and client development, but also to deposition practice, negotiating with our law partners, settlement discussions, and a host of other processes we engage in as lawyers.

Among the many benefits that empathy has been shown to bring to different disciplines, the following stand out as applicable to law practice: * Greater efficiency and accuracy in the client interview * Increased client satisfaction * Growth in client base and market share * Innovative product development * Better negotiation outcomes * Higher rates of settlement * Lower stress and healthier practitioners

My own experience in both conventional law practice and as a mediator and conflict coach has...

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