In May of 2014, I attended the Massachusetts Collaborative Law
Council's day long Advanced Training Forum. The attendees included
lawyers, coach/facilitators, mental health practitioners, financial
neutrals and other professionals who help divorcing couples. There
were the usual discussions about finding better ways to help our
clients divorce, finding more clients, and finding other
professionals willing to practice collaboratively. And there was
also singing!
I'm breaking a vow we all took, just by telling you that there
was singing. But you need to know. Because this is how
collaborative law is different. Collaborative law is a team process
that uses interest based negotiation to settle cases outside of
court. But that technical definition doesn't really explain the
value and influence collaborative law has had on my practice and my
clients. Collaborative law has changed how I see conflict, and that
has changed how my clients experience their divorces.
The collaborative law training is different.
The one thing that still stands out for me from my Collaborative
training is not some practice tip or tidbit I learned. I remember
most how the trainers genuinely seemed to be friends and I left
motivated to be more like them. Honestly, it was not because I
really understood how much better collaborative law would be for my
clients, but I saw how much better it could be for me. I saw a
glimpse of a world in which I could help my clients through their
divorce, and still be who I was and who I wanted to be. I didn't
see at first that by changing myself I would also change my
clients.
I spent the first five years of my career litigating divorce
cases in court. I started out idealistic, wanting to help every
client reach their goals and find their peace after the divorce. I
asked them what their life looked like a year from now, five years
from now, etc. I wanted them to focus on the future. But I started
to burn out because many of my clients were not able to reach their
goals through the court process and that was frustrating.
The court's complaint process is set up first to protect people
and children, and that should be the priority because the people
who need protection need the court's help the most. But for those
people who don't need protection, the court rules and process treat
them all the same, as presumed adversaries. The court process and
we as practitioners have a significant influence on those undecided
or uneducated potential litigants by how we handle our first
interactions with them. We are not disconnected observers, and how
we measure the conflict between people has an effect on how they
choose to resolve that conflict. I call it the "Observer Effect" of
family law. If I start with the assumption that most of the people
who walk into my office can settle, then I believe most of those
people will settle without the need for the cost and pain of
adversarial litigation. But if I start with the assumption, as the
complaint process does, that most of the people who are starting a
divorce are adversarial, then I believe most of those people will
end up acting that way.
Collaborative law is a different experience for my
clients. If my divorcing clients finish their case having
no better idea how to deal with conflict than when they first came
into my office, then I have failed them. Divorce is a by-product of
conflict in the marriage, but if people are ending their marriage
to escape that conflict, why do so many couples end up in long
drawn out court fights for years, essentially continuing that
conflict? Because somewhere along the line the complaint-style
system has failed them.
Collaborative law teaches us how to transform that conflict
using the support of a team and proven techniques for reducing and
resolving disputes. That is not easy. In fact, in many ways it is
easier to just try and beat each other in court than to actively
listen and work together. Traditional negotiation and litigation
only requires you to define what your client wants as an endpoint
and then try to get it. It ignores the relationship the two parties
have. Collaborative law uses an interest based negotiation approach
to understand what both parties' goals and interests are. By
knowing what lies beneath each person's wants we are better able to
negotiate a mutually satisfying result to any dispute.
Collaborative law is different because we accept that
the conflict is a part of life and we don't fight that
fact. Instead we use the energy of that conflict to help
both sides understand their needs and wants better. I recently read
a blog post by a Collaborative attorney in Florida whose partners
had to ask him to quiet down because the divorcing clients in his
Collaborative settlement meeting were laughing too loudly.
Collaborative law brings back into the room the human dignity our
clients deserve and the comfort that gives them permission to laugh
when life is funny. We even find ways to sing about it.
Collaborative law has changed how I see conflict, and that has
changed how my clients experience their divorce, and therefore how
they experience their life after divorce. The theme of the MCLC
Advanced Forum from May 2014 was Mindfulness. It is impossible to
be more aware, more mindful of how you do something and not have
that carry over into other parts of your life. Collaborative law is
not just different, it is better for everyone involved and it
changes them.
If you're reading this and you have worked within the
collaborative law community then you already understand what I am
talking about. If you're reading this and it is the first time
you've heard about collaborative law, you might be wondering what
we're thinking. I'm not asking you to buy into it right away. Just
give it a chance and maybe it will change you too.
Thank you to the great speakers from MCLC's program and
specifically David Hoffman of the Boston Law Collaborative for
teaching us how being more positive will change the people around
us (and for leading the singing). If you're interested in learning
more, check out MassCLC.org for information on the next
collaborative law training coming up in September 2016.