Patent Law

The Gap: Being What You Know and Being Who You Are

By Mary Zachar

Cultivating Qualities of Being

Introduced here in my first post as having a 'contemplative law practice,' a few friends politely inquired – what is a 'contemplative law practice,' and what does that have to do with IP or mediation? So I have been contemplating and in this post, with the help of a few other contemplative lawyers, try to bring it all together – IP, mediation and meditation.

In my experience, they are all connected...

Mediation

Vicki Pynchon previously blogged here about an article by Danny Ciraco entitled "Forget the Mechanics and Bring in the Gardeners: an Exploration of Mediation in Intellectual Property Disputes". Ciraco's article, written over a decade ago, blazed the trail for the modern view (recently articulated by Google General Counsel William Patry as quoted in my March post) that IP is all about 'relationships.' Juxtaposing the court system as a machine, and mediation as an organism, Ciraco believed in the flexibility of mediation of IP disputes:

'By describing mediation as an organism we will be able to see its potential to effectively deal with IP disputes. In particular, we will look at mediation's flexibility, its cost-effectiveness, its sensitivity to time, its effectiveness in dealing with highly technical and complex issues, its respect for confidentiality, and its effectiveness to deal with internationally complicated disputes -- all of which will illustrate mediation's organic design.'

Comparing mediators to gardeners evokes the cultivation of process rather than contraction by judgment. Viewing IP as interests, not stand-alone rights, is the mediator perspective. Copyright provides a good example. A grant of a limited monopoly, essential safety valves are built into the copyright system which impact the rights holder's relations with others – limited duration, first sale, idea/expression, fair use, and public domain – relationships with borders and edges which create an interdependent system of interests. Without the safety valves, we could not tolerate copyright at all. So when working with copyright issues, our view is always dependent on seeing the relationships, not just positions. Copyright law is in one sense built on a mediator's perspective. The expanse of IP itself – copyright, patent, trademark, right of publicity, trade secrets – is interdependent and often must be unbundled as we recognize that one right cannot be co-opted by another.

Meditation

Contemplative practice relates in the same reflective manner, supporting a view which opens up the process to encompass all of the interests awaiting recognition. One of the ways this open view can be cultivated is by a meditation practice. From a meditator's perspective, contemplative practice follows 'bare attention' gained in meditation to engaged attention on values cultivated by a mindfulness practice. If we as an individual can develop a direct relationship with who we are, instead of using conditioned beliefs to feel right and make others wrong, then we can be open, flexible and kind with others without feeling that we're losing something in the process. Grounding ourselves in self-awareness and self-reflection, we bring this presence to mediation, bringing peace into the room. Basic goodness, compassion, empathy, and equanimity serve as attitudes developed in a mindfulness practice.

Integration into a Contemplative Practice

Mediation, by looking at what is and opening awareness to all of the interests, has a commonality with meditation practice. We see what is, and then work with it. By having many tools to work with, we are not limited to only one view. Flexible, we can be gardeners cultivating peace. If the parties can go back into the system healthier, with a fresh awareness of their role in the system and how to better navigate to avoid future disputes, then we as mediators with a meditator's perspective have contributed to a community of artists, inventors, creators, consumers, and distributors and in this contribution, have enlarged and enriched the collective as well as our own personal practice. This is how I personally benefit from integrating a legal and mediation practice with my personal meditation practice – resulting in a contemplative law practice. It is the engagement with others and the benefits of serving in a community which lifts my practice off the cushion and into the world in which I have trained and developed legal skills to help others.

Robert Chender, an attorney and meditator in NYC, with his own blog Contemplative Law, serves as an example of how we can integrate what we know with who we are. With a sophisticated legal practice in Manhattan at Seward & Kissel, and as the Director of the New York City Bar Association Contemplative Lawyers Group, as well as offering CLE programs for lawyers, law students and judges, Robert embodies the meditative approach as he balances being a leader in both realms – as a lawyer and meditator. Whether working with lawyers, partners, clients, or training others in meditation, his practice informs and transforms his relationships. Robert recently shared with me how his training with Chogyam Trungpa Rinpoche, helped him in his goal of applying his meditation practice in all aspects of his life: his teacher didn't just teach him how to meditate, he also taught him how to shift his view, how to contemplate and apply his practice out in the world to serve himself and others. I asked Robert to add his own reflections here to address the busy IP lawyers and mediators who follow this blog. Here is what he said:

'As lawyers we're continually asked for help, by clients and colleagues, and indeed that's what we're paid for. However, it may be best to help in a way that's quite different than the ostensible request – for example, if a client wants to litigate because he feels personally wronged, it may be possible to examine the situation and work out a solution in which both parties can put aside their grievances and avoid a prolonged and expensive fight. This is of course true for both counsel and mediators. The main question is how we do that – the training that's required to be skillful in mediation (whether formal or informal) is very different than the training we received in law school, and requires an examination of what our assumptions are about what we're trying to accomplish. Some attorneys relish a fight, and want to dole out punishment to the other side – but that's not looking at what I think should be the larger goal of attorneys, which is to create peace and facilitate people's livelihoods, one client at a time. Training our minds, through meditation or otherwise, is a helpful and perhaps key prerequisite to accomplishing this goal.'

In 2008, I was introduced to two other leaders in the contemplative law movement, Charlie Halpern, founding dean of City University of New York Law School and now teaching contemplative practices at BOALT, and Doug Chermak, a Bay Area environmental lawyer, when I attended an annual retreat in northern California held by the Center for Contemplative Mind in Society, led also by Zen priest Norman Fischer. The Shambhala Sun magazine recently interviewed Robert, Charlie and Doug (May 2010 issue), heralding their contribution to mindfulness for lawyers. Doug described a 'meditative perspective' as helping lawyers cultivate insight into the challenges so they are 'not cut off from who they are as a core human being.' My experience as a participant at the 2008 retreat, attended by judges, law professors and students, big firm partners and every type of lawyer in between, was that lawyers, young and old, are dedicated to their professional practice and duties to their clients, but also long for a way to navigate within the conflux of emotions and ethical challenges experienced within the profession. Our challenge is to find our seat so we can navigate in the profession amidst the very real challenges of earning a living, supporting partners and employees at the office, and families and communities at home.

Applying Robert's Shambhala 'art of living' approach, we are challenged to shift our view when our conditioned, reactive responses arise – for instance, in an IP dispute where we instinctively see infringement of a client's legal rights as a battle cry - and instead give attention as well to their relationships. In shifting our view, we can add value to a client's cause by leading with a mediator's and meditator's perspective, adding value to our own life as well. At law schools, law firms, courts and everywhere lawyers and mediators apply their art, this shift in view is happening now.

In addition to Robert Chender's blog Contemplative Law , you can follow Stephanie West Allen, author of the weblog Idealawg, which is dedicated to all things related to contemplative law and mindfulness and has a wonderful list of resources for your practice.  You can also follow and join Cutting Edge Law, the active internet community for mediators and contemplative practice.

The Contemplative Mind in Society website is also a great resource for contemplative practice and hosts podcasts from past law retreats, and where you can also sign up to receive news on upcoming law retreats, including one expected this fall at BOALT featuring Charlie, Doug and Robert; J. Patton Hyman's 2007 article on lawyers and mindfulness is a also great introduction to mindfulness and meditation for lawyers.

Finally, we hope you have already added the June 10-12 Pepperdine's Straus Institute's Summer Skills Conference to your calendar, where you can learn more about mediation and mindfulness when Len Riskin and Rachel Wohl present Mindfulness for Conflict Resolvers: Lawyers, Mediators, Negotiators, Judges, Arbitrators & Managers.

-MZ

Full post as published by IP ADR Blog on May 24, 2010 (boomark / email).