Getting Beyond Yes to Collaborative Justice: The Role of Negotiation in Community Lawyering

David Dominguez
Brigham Young University – J. Reuben Clark Law School

February 10, 2010

Georgetown Journal on Poverty Law & Policy, Vol. 12, pp. 55-93, 2005

Abstract:

Our society often overlooks one of the most powerful roles of a lawyer: that of teaching and empowering others. When we talk about using law to achieve social justice, we typically envision a public-interest lawyer filing a lawsuit – an individual, in court, fighting faceless institutions on behalf of otherwise voiceless citizens. In stark contrast to these traditional expectations, this Article describes a far more ambitious vision of collaborative justice, one that re-examines the role not only of public-interest lawyers, but also of the community residents they serve and the public officials with whom they must negotiate to solve problems.

I argue that lawyers are more likely to ensure lasting social change if they help residents of under-served communities articulate their own interests and thereby learn to act as their own long-term advocates. Furthermore, I contend that once residents become comfortable building relationships within their community, they can use those same skills to convince public officials to negotiate as partners rather than as adversaries. In short, by emphasizing negotiation and «integrative bargaining» rather than litigation and a lawyer-client hierarchy, communities can open up a whole new range of solutions to their collective needs.

I describe this program – and the class I teach built around its principles – as «Community Lawyering.» Using an extended case study from Community Lawyering’s work with residents of the Boulders Apartments in Provo, Utah, this Article illustrates how these principles work in practice, demonstrating the challenges of bringing people on board as well as the transformative effect that applying Community Lawyering techniques can have on a neighborhood.

Part I of this Article introduces the Boulders community, the problems it has faced, and how Community Lawyering became involved. Part I also describes Community Lawyering’s philosophical underpinnings and its general mission. Next, Part II explains how the Community Lawyering philosophy expands on traditional negotiating approaches, such as that of Harvard University’s well-known Project on Negotiation. Part III identifies the core principle underlying Community Lawyering negotiation: that the expectations of the people involved in any negotiation are the most significant limitation on what can be accomplished. Parts IV through VI then illustrate the impact that raising these expectations can have on the effectiveness of negotiation. Utilizing a variety of individual stories, these sections describe in detail the lessons and practical skills that my law students and the Boulders residents (each in different ways) have gained from their Community Lawyering experiences.

Finally, the Article concludes with a reminder that social justice is, at root, about expanding opportunities to include all members of society. From that perspective, the value and message of Community Lawyering is in acknowledging our interdependence: whether we are talking about the lawyer and the resident, the public official and the activist, or the poor and the privileged, we must become mutually accountable if we are to transform and empower our communities.

Getting Beyond Yes to Collaborative Justice- The Role of Negotiation in Community Lawyering

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