With the September 11th situation, people see how crisis, chaos, loss, and pain can quickly turn into revenge and war. Our instincts to survive based on separatism and exploitation have served us for a long time. How do we behave now, what actions do we support? These are difficult questions. Many people in the throws of a litigious divorce face similar questions. The demand of this time for some divorce lawyers and their clients is to take an approach other than the adversarial model. At the heart of the collaborative approach is a recognition of the needs we all have in common.
This article expresses the writers understanding and views of Collaborative Family Law based on training conducted by Pauline Tessler in Denver. (1) Collaborative Law is appealing because it allows lawyers to practice their trade in a completely positive way. The shift in focus allows us, and our clients to act in line with our values. Bringing people together in agreement, we experience joy and fulfillment in our work. Is it easy? No, it requires an emptying out of our old attitudes and behaviors shaped by the adversarial model. It also requires that we learn some new skills that not only enhance our ability to collaborate but also our ability to enjoy our lives. This article will provide a brief discussion of the collaborative model as an alternative to the adversarial approach to family law, the lawyers' new role based on an old oath, why the process will dramatically increase client and lawyer satisfaction and some steps on the journey to get there, should you choose to take it.
In short, the collaborative law process involves two lawyers acting to fulfill the non-adversarial objectives of their respective clients. After examining the ADR options available, a client choosing the collaborative model commits up front, in a written stipulation, to the principles of collaborative law. The agreement binds them to a team approach to engage in genuine, honest disclosures and creative problem solving to come to agreement meeting everyone's real needs. The unique feature of the stipulation is the party's mutual agreement that litigation and adversarial tactics are not in their best interests. If either party decides to resort to the court for resolution of the dispute, both lawyers are automatically disqualified from any further representation of either party against the other. Likewise any experts retained jointly as part of the collaborative team are disqualified. (2)
Contrasted with the adversarial model the collaborative model acknowledges several realities of divorce. Divorce is one of the most destabilizing experiences of ones life. It is normal for the divorce client to feel confused, even gripped by powerful primitive negative emotions like fear and rage. It is likely the client will not make their best life changing decisions when possessed by these emotions. Most divorce clients do not seek counseling but rely on their lawyer for guidance. Most divorce clients call their lawyer when their emotions are running high not when things are going fine. Taking marching orders from the "possessed client" often leads to a catastrophic impact on the parties and their children, a result the clients are poorly informed of in advance.
The role of the lawyer in the collaborative model precludes the championing of a client's cause as the victim or the one wronged. Finding someone to blame and seeking retribution is also not the goal here. Thankfully the client also is not allowed to put their lawyer in the position of a gladiator for the sole purpose of torturing the other spouse.
The lawyer is retained in service of the client's highest values and interests. Helping the client navigate the legal process consistent with those values results in greatly reduced emotional and financial repercussions to the client and their family.
This does not mean the lawyer avoids discussing the client's story of loss and pain, hatred or blame. The lawyer engages the problem directly with the client in discussions before any issue is brought to the settlement table. Incorrect behavior is not over looked. All participants are required to live up to their stated intentions. Experienced divorce lawyers share that in holding on to the past or a personal claim to what was lost, the client assumes the identity of a victim.
The first task of the collaborative lawyer is to help the client identify their true needs. Listening empathetically, to the client's legitimate feelings without the filter of legal relevance, creates an opening in the client's mind to hear the lawyers' reflections. This is when genuine human connection can take place between lawyer and client as stories are shared. Clients are asked to remember their commitment to separate their true needs from any presumed entitlement to revenge or to torture the other spouse.
The collaborative process proceeds via a series of four- way settlement conferences preceded by meetings with the client and followed by debriefings with the other lawyer to gauge the success of each meeting. Honesty, candor, thinking out loud and outside of the box, use of the signed stipulation and interest based bargaining are some of the conflict management tools used.
Does taking the high road, not fueled by unrelenting fury, weaken the will to respond appropriately to the situation? To the contrary, the ability to think clearly and see the big picture is what assures a successful outcome. This is precisely why the lawyer's role in the collaborative model is so vital. Part of that role is to know and embody the expectations of our society about divorce, thus helping to guide the client to a positive outcome. The message the client's children learn from their parent's collaborative divorce is also positive.
Experienced divorce attorneys may think this is nothing new, "I already do this."
"Lawyers, as guardians of the law, play a vital role in the preservation of society..... The continued existence of a free and democratic society depends upon recognition of the concept that justice is based on the rule of law grounded in respect for the dignity of the individual and each person's capacity through reason for enlightened self government." (Preamble, Colorado Rules of Professional Conduct) (emphasis added)
Quite obviously the courthouse was never meant to replace the individual's own "self government." Thus the lawyer's sworn obligations are to society and the law, as well as to the client, to work for the general good of society. The safeguards of the collaborative model enable the lawyer to live up to the oath.
Similarly, that the lawyer is considered to be the repository of the cultural values of society or the "public good" is also nothing new. The law is one of the three traditionally recognized professions( in primitive human societies the three professions, clergy, law and medicine were united in one individual). The three traditional professions all serve the needs of others, involve a public oath and constitute the constituent elements of a "world view" which defines the individual in relationship to self, others and the divine.(3) As such, the lawyer is seen as embodying the values of society.
According to Tessler, three billion dollars a year are spent on family law attorney fees and nobody is happy. Trends in pro se filings are increasing. Sixty percent of all divorce filings in California are pro se and half of those filing pro se can well afford a lawyer. Fifty percent of all divorce filings last year in Boulder are pro se, according to figures presented to CCMO by Norma Sierra, Family Court Facilitator of the Boulder County District Court.
On top of this, practically every professionalism seminar we attend these days cite numerous articles and readership surveys that point overwhelmingly to major career dissatisfaction among lawyers. "Society as a whole finds lawyers in contempt, somewhere beneath politicians ( all of whom are presumed to be lawyers) and used car salesmen in credibility. They are seen as "hired guns" whose moral fiber is determined by who pays the most..... Society despises lawyers, clients despise lawyers, but most telling of all, lawyers despise lawyers"(4)
Personal, professional and systemic symptoms of the problem include high rates of alcoholism, drug abuse and divorce among lawyers. Many lawyers drop out of the profession altogether. Lawyer's perceptions of each other are characterized by words like greed, winning at all costs, ruthlessness and cynicism. The Public views the profession as governed by rules but not values. What can we learn from the lawyer jokes that proliferate?(5)
According to Tessler, we delude ourselves... "ignoring the unpleasant fact that what we do during the course of our representation may cause far more injury to the children than what led up to their parents decision to divorce...." " The first thing that might cause clients to fear, distrust, and avoid family lawyers is that we are a great deal more adversarial in our thinking and behavior than our clients need or want. We over litigate, exacerbating interfamilial stress when we could be calming it. As a result we charge our client's a high emotional and financial price that few can afford. We do this not because we wish to harm our clients or their families, but because we believe that is what we are supposed to do....We have absorbed from movies...our law school education a gladiator model for our professional role that is so deeply imbedded in our definition of what it means to be a lawyer that most of us do not even see it. It is the water in which we swim the air we breathe, and consequently, we reconsider our automatic adversarial behavior just about as often as we remind ourselves to breathe."(6)
Collaborative family law began with one lawyer wanting a healthier and happier professional life. Stuart G. Webb of Minneapolis founded the practice in the early 90's.(7) His efforts together with Pauline Tessler's and others have resulted in an alternative dispute resolution model that most predictably ensures Webb's desire. Until now, this model has only been practiced in other states.(8)
Our growth as lawyers and as leaders always seems to come from our growth as individuals. It is necessary for us to really appreciate that the position of influence we hold does affect the lives of countless people. We can use the same doggedness we have approached the adversarial model with to rise to the demand of our time. Some of the steps suggested by Tessler to become a collaborative lawyer are: a full mediation training, joining a practice group, and examining our knee jerk adversarial behavior.(9)
There is no guarantee that any process-oriented approach will work its magic unless there is a commitment up front by both parties and their lawyers to that process. This model places the risk of failure ( financial and otherwise) on all the participants.
Magic happens because there is no alternative to a negotiated outcome. The parties are committed to settling the case. They believe strongly that the certainty they may get in court is not justice but a last resort, a failure of their own "enlightened self government." At the moment when failure looks imminent, usually someone jumps up to leave saying, "See you in court." The collaborative model however, reduces the failure of settlement by use of this pretense. The parties have agreed at the out set not to give up control of the outcome of their lives to the court. During the resulting silence the realization dawns, "In order to get my needs met I must meet the needs of my spouse!" This sudden flash of insight leads the parties to a solution.
The entire process empowers the clients in allowing them an active role in determining the result they will live with. The process often uncovers a client's hidden abilities to successfully navigate through difficulty.
The demand of our time is extremely favorable for lawyers and their client's adopting the collaborative approach to dispute resolution. As lawyers we may expect to enjoy much success, as we learn to let go of old methods and offer this constructive approach to more and more clients.
Kathleen Franco is co-chair of the Alternative Dispute resolution section of the Boulder Bar Association.