Lawyering at the Intersection of Mediation and Community Economic Development: Interweaving Inclusive Legal Problem Solving Skills in the Training of Effective Lawyers

This Article introduces the intersection between the professional practices of Community Economic Development (CED) lawyering and mediation, emphasizing the overlapping skills between these fields. CED provides clients with transactional legal support in creating and sustaining their own development projects, such as creating affordable housing and small businesses, as well as in exercising meaningful control and/or influence over private, for-profit development projects. Mediation is the intervention into the disputes or transactions of others in order to explore the possibility of mutual optimal outcomes. This definition of mediation is at the heart of the legal counselor’s role under an empowerment-driven CED approach. Many CED clients are community groups that inherently have multiple and often competing internal interests. An empowerment-driven CED lawyer counsels community groups in a that maximizes the group’s underlying shared interest in order to increase the gains for the entire group as well as the larger community.This Article is useful to lawyers who, like CED practitioners and mediators, work with community organizations and multiple stakeholders. Mediators and CED lawyers have a similar perspective on the breadth of their professional role. They do not see their role as being limited to legal technical assistance. Progressive attorney-mediators identify a common skill set that they utilize when acting in role both as advocate and as mediator. This Article focuses on the empowerment-driven attorney-mediator’s and CED lawyer’s views regarding the use of effective legal problem-solving skills that go beyond traditional legal representation. Although this role of a CED lawyer may appear to be novel, it is an established, successful corporate law convention for lawyers to have a more expansive professional role. CED lawyers, like business lawyers, act as strategists, counselors, and facilitators before a variety of involved third parties. Thus, the professional role of the CED lawyer involves more than contract advising and drafting. CED lawyers serve as tacticians and key members of strategy teams, advising clients on how to achieve short-term and long-term objectives while avoiding potential legal pitfalls. Thus, both the mediator and the CED lawyer direct their expertise toward providing the client or party with the information and resources necessary to engage in informed decision-making. The two practitioners identify and tailor their professional roles to the needs of a given situation, both early on and throughout their work with clients and parties. Indeed, because mediation and CED involve helping more than one decision-maker, both practitioners place emphasis on broad problem-solving skills with the goal of surfacing and considering all affected interests.At the intersection of empowerment-driven mediation practice and CED lawyering is the central use of metacognitive self-awareness,robust information gathering, active listening, language reframing, facilitation, problem-solving, and consensus-building skills. For purposes of this Article, we will label this entire set of overlapping skills “inclusive legal problem-solving skills.” Both fields utilize facilitation skills, which are intended to bridge differences and create common dialogue among those in disagreement. In both contexts, facilitation skills refer to the ability to deliberately choose language with attention to the potential reactions of the intended audience, to elicit the various perspectives, to articulate the common threads, and to identify the differences as common issues to be solved. Reframing skills refer to the ability to neutralize content and evaluate options neutrally.Mediation Training for Law Practice is premised upon the recognition that this inclusive set of skills is essential for effective problem-solving in all areas of law practice. This is especially true for CED legal practice, which is an inherently transactional practice premised upon the necessity for genuine collaboration among multiple parties, including CED attorneys, client organizations, and other community stakeholders. Thus, CED requires accommodation among multiple decision-makers in order to implement successful development projects.Both empowerment-driven mediation and CED lawyering stress the importance of embracing diverse points of view as a way to generate multiple optimal solutions for the client. The idea that including multiple perspectives ensures a more accurate understanding of the factual matter and provides more material for generating potential options constitutes an essential core belief in both fields. Thus, empowerment-driven CED lawyering and mediation make a conscious effort to include all perspectives in the design of an effective resolution process. Surfacing these differences in perspective contributes to fuller examination of meaning, and together the participants expand their ideas regarding solutions. As a result, the ideas become more fully developed by including the divergent content from many sources.In this Article, we first review the historical and present-day support for teaching law students to more fully function as professionals. Second, we explore the intersection of CED and mediation by means of a case illustration. We start this coverage by reviewing the legal background and the fact pattern of the scenario. We then discuss how the CED lawyer uses inclusive legal problem-solving skills in this case scenario in order to effectively serve her client community organization. Next, we discuss the component skills of inclusive legal problem-solving that serve as the foundation for our model CED lawyering approach. We separately discuss the three component skill sets of inclusive legal problem-solving, which are: (1) inner negotiation skills-metacognitive self-awareness; (2) information gathering and achieving sustained focus on the client; (3) reframing positions, issue framing, and option generation. We conclude this Article by inviting our colleagues to use and further develop our framework of inclusive legal problem-solving skills in training future community lawyers.