Arbitration & Mediation

Negotiation, Mediation, Legal Careers, and the Rule of Law

By Victoria Pynchon

For more hilarious law cartoons by the fabulous Charles Fincher, click here.

Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.

Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business.  It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it.  In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes.  They need only understand that they are choosing an entrepreneurial rather than an institutional path.  They are breaking new ground.

What does this have to do with negotiation?  Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.   

Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law."   We'll be returning often to this theme many times over the next several months.  

This item is from YouTube and the Law:  What it is or What it Will Be

Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.

The law follows culture. As we noted over at the IP ADR Blog in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.

*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.

Full post as published by Settle It Now Negotiation Blog on February 23, 2008 (boomark / email).