Power with vs Power over in Legal

by Jacqui Brauman

Power with vs Power over in Legal

by Jacqui Brauman

by Jacqui Brauman

Peacemaking is an interesting concept for a lawyer, and while working through how to be more of a peacemaker, the concept of “power with …” rather than “power over …” (power with vs power over) has become clearer in the legal industry.

The legal industry reinforces the patriarchy, with “power over”. Power is taken away from parties in the Court system, and following a traditional litigation style of dispute resolution. Decision making is given to a judge, and the management of strategy and approach is given to lawyers.

We are so conditioned, both as a society, but also particularly as women, to give our power away. As soon as someone has a title or has a profession, like a lawyer, we hand over our own responsibility for our life and give everything over to them. 

We (often blindly) trust that professionals will do the right thing, trusting that what they say will be right for you and for some reason, and more so in the legal profession than in the medical profession, people don’t get a second opinion. 

If you hand over your power, someone else is going to make decisions about your life.

Sometimes litigation is the pathway that you have to take. 

But there are other choices, and you can pick up any of these other choices, at any point along your pathway.

Some of the other pathways are: collaborative practice, mediation, and other alternative dispute resolution pathways. 

The earlier you choose an alternative pathway, the better. But no matter when you choose to participate in an alternative way, at least you keep control of the outcome. In alternative pathways, it is you who agrees to what is placed on the table in negotiations. It is you who is part of the decision-making process.

Some alternative processes run better than others. It does depend who you choose as a mediator, or who is involved in the professional team. It can be crucial to your success, to have a really well-developed core professional team, which can then be applied to all sorts of dispute situations.

Instead of handing your power over to someone else to make decisions for you, these alternative processes (collaborative practice and mediation, and other forms of alternative dispute) are actually more of a “power with” structure. 

In alternative processes, your solicitor stands side-by-side with you when you walk through the process. They are there as an advisor and as a guide, but certainly not as a decision-maker and certainly not responsible for the project management, or strategy, or course that it takes. You go through a process as a team.

The same with mediation as well – a mediator is not there to tell you what options are the best options or to advise you about which ways you could settle things. All the options for resolving the disputes have to come from the parties. So the power very much lies with yourself and whoever else you’re in dispute with, with mediation.

In collaborative practice, the “power with” sits with both the clients and the team. The professional team all work together to resolve it, rather than in litigation. 

More traditional lawyers work to try and beat the other down and allow revenge and families to be torn apart.

That’s what learning to be legally wise is about. It’s learning about how to find and hire the right lawyer, that you actually do have a choice, that you can get more than one legal opinion, that professionals are there to serve you (not the other way around), and how legal costs work.

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