Collaborative law: practicing family law with heart

Issue May/June 2016 May 2016 By Justin Kelsey

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.