What image comes to mind when you think of an attorney? Perry Mason? Jack McCoy? Denny Crane? In the traditional paradigm of law lawyers are trained to fight. To be gladiators for their clients and for justice. Sounds noble, doesn’t it? It can be noble. Our history books are full of examples of courtroom battles fought and won for the greater good. The problem is, battles can also cause collateral damage, especially when ongoing relationships are involved. The process also puts the focus on the attorney/gladiator which can leave the client feeling powerless. I have had many divorce clients come to mediation because they wanted to resolve their dispute without lawyers. Sometimes it is an economic concern but more often it is because of the impression that once they go to an attorney they will be forced to fight. They fear that they will lose control over their situation and their family.
When I was in law school I had a mentor in Waverly, Iowa, who told me “when a client comes in you need to do three things. First, find out what their problem is. Second, determine a good solution for them. Third, determine a reasonable fee.” He went on to tell me that my most important role was as counselor and advisor and that sometimes it would be my job to talk my client in off the ledge. People come to attorneys in crisis, often in a very emotional state. If I knew that the action they wanted to take would do more harm than good, even if they won, then I had an ethical obligation to talk them out of it and help them find another path. I have never forgotten those lessons but I found them harder to put into practice when I started my law career as a divorce attorney. As much as I wanted to take the high road to resolve my client’s case, I also had an obligation to respond to the tactics used by the opposing side. I felt like I was being pulled in to a game that, ethically, I did not want to play.
I am not the only one with this frustration. The good news is that there is a new paradigm in the legal profession that shifts that focus.
In collaborative law, attorneys and other collaborative professionals work together as a team to resolve disputes without burning bridges or destroying relationships. The focus is on cooperation and creative problem solving to find new options and solutions.
Currently being used in divorce, the principles of collaborative law apply to any dispute where the parties want to resolve the conflict without damaging the relationship. The International Academy of Collaborative Professionals, www.collabortivepractice.com, describes it this way:
“Civil Collaborative Practice at a glance
- Reduces financial, time, and emotional costs
- Avoids going to court
- Helps maintain important relationships
- Protects confidentiality and avoids publicity
- Keeps the parties in control of the proces
- Encourages mutual respect
- Provides open communication
- Uses a future oriented, forward looking problem-solving approach
- Identifies and addresses all parties’ interests and concerns
In a collaborative case both parties agree from the outset that they will resolve the situation without going to court. They are each represented by an attorney who will work with them to identify their core goals, not just the emotional “wants” they come in with. Attorney client privilege still applies but the attorneys and the clients work together cooperatively towards a solution that will allow both parties to move forward.
Here is one example where the collaborative method could have changed the outcome. A couple years ago I had an employment mediation that lasted for nine hours. Normally, I would break this up into multiple shorter sessions but this was the eve of trial, corporate counsel had flown in from the East Coast and if this was going to happen it had to be that day. Even though there had been a claim filed both the employee and the employer wanted to maintain a working relationship. The employer acknowledged the employees skill and work quality and the employee wanted to continue her work but in a more productive environment. I recognized early on that both sides still respected each other, but certain situations had been handled poorly and communication had broken down. The local attorney saw this too and offered to step out if I wanted to meet with both parties together to see if we could find a resolution. Corporate counsel refused. Her client could not say anything without her there and certainly couldn’t communicate directly with the other party.
By the time we took a break for lunch I knew how the case could be settled to the satisfaction of both parties. Corporate counsel, however, refused to let her client budge from their position and continued to put on a very adversarial “show”. I say it that way because during one of our breaks I had a chance to speak with her privately and, away from the room, her personality was completely different. She was relaxed and joking and talking about the need to put up a fight. That is how she defined her job as a lawyer, she was the gladiator. This went on until the 11th hour when she switched gears, had the reality check talk with her client and we resolved the case exactly as I had predicted 4 hours before. Had this case been approached from a collaborative perspective not only would the parties have saved the cost of 4 extra hours of mediation x 3 lawyers, they also would have saved money on filing the case and all of the discovery procedures that were done up to that point. A collaborative process would have resolved the situation much sooner, at a fraction of the cost, and maintained a healthier working relationship between the parties moving forward.
I am very excited about the opportunity to practice law collaboratively and I am grateful for all of my colleagues who are also working to change the paradigm. The other piece of the puzzle is the public. To truly change this system we need clients who will join us on the journey.
I would love to hear from you. What benefits do you see in working collaboratively?