A BOON TO FAMILY LAW ATTORNEYS AND THEIR CLIENTS: COLLABORATIVE LAW BRINGS THE MAGIC
      BACK INTO THE PRACTICE

By Kathleen  Franco

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.”

IS COLLABORATIVE LAW A NEW CONCEPT?

“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.

IS OUR CONCEPT OF OUR ROLE IN THE ADVERSARIAL MODEL CAUSING PROBLEMS? 

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’S RESPONSE
      TO THE PROBLEM

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)

THE MAGIC

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.

CONCLUSION

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.

FOOTNOTES


  1. Collaborative Law . A Training Program For Lawyers, by Pauline H. Tessler, Denver, Co., Nov.3, 2001.
  2. Pauline H. Tessler “Collaborative Law:  Achieving Effective Resolution in Divorce Without Litigation ( Chicago  Il: American Bar Association, June2001).
  3. The Art of Law: A Workshop in  Professionalism for Lawyers, Graham Thatcher, PhD. Professionalism  Committee, Colorado Bar Association, 102 Annual Convention, Sept. 8,  2000.
  4. Id.
  5. Id.
  6. Tessler, “Collaborative Law: What it is and  Why Family Law Attorneys Need to Know About it” ABA Journal of Family  Law, Vol.13,215-225 (1999)
  7. See Gutterman “Collaborative Law-Part I”30 Colorado Lawyer 57 (Nov. 2001) 
  8. The collaborative model is becoming a reality  in Colorado through the compassionate and generous efforts of Sheila  Gutterman and Pauline Tessler, Supra note7.
  9. Supra note7, an umbrella organization has  formed, Colorado Collaborative Family Law Professionals (CCFLP). A  practice group of Boulder area and Denver professionals is meeting  regularly, for more information about this group, contact this writer.