From Advocate to Peacemaker
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser: in fees, expenses and waste of time. As a Peacemaker the lawyer has a superior opportunity of being a good person.”
— Abraham Lincoln
The collaborative approach to practicing family law, in which the attorneys agree that they are disqualified from going to court, has been described as a paradigm shift for most attorneys. For attorneys trained in adjudicating disputes, the collaborative approach requires the adoption of a different “world view” when it comes to conflict resolution. The firm ground on which attorneys generally operate in resolving family disputes, by reference to the court system and judge-determined outcomes, disappears. It is only marginally helpful in a collaborative process, and may in fact be a hindrance, to be adept at gathering the relevant facts, sorting the facts into legal issues, searching legal precedent and statutory mandates, and predicting the outcome that a client could expect in court. Certainly, it is not useful in a collaborative process to be expert in gathering evidence through depositions and interrogatories, to know how to impeach a witness on cross-examination, to have an innate sense for organizing evidence in a coherent and persuasive presentation, to have a mastery of the rules of evidence and procedure, and to be able to make forceful summations.
The skills we attorneys spent three years learning in law school, and then more years perfecting, have only a marginal place in the collaborative approach to conflict resolution. For this reason, not all attorneys will be interested in adopting the collaborative approach. Many attorneys went to law school to become adept in the art of litigation, and having accomplished that goal, will not be interested in moving to a new and unfamiliar paradigm in which the skills they have mastered are not appreciated or used.
Attorneys, on the other hand, who are drawn to a collaborative approach for conflict resolution in the divorce context must be willing, in some respects, to “start over.” Outlined below are some of the contours of the paradigm shift that is required in going from a model for dispute resolution based on adjudication and a model for conflict resolution based on non-coercive negotiation.
From demonstrating expertise in the legal process to creating a “safe container”
Perhaps one of the most important and most difficult shifts for attorneys to make in moving to a collaborative approach is the shift in how we perceive our role. As attorneys we have been taught to view ourselves as advocates, protectors, and jurists. We operate in a system in which we seek to defeat parties who are in conflict with our clients and to protect our clients from defeat by these same parties. We are seen by non-lawyers as smart and powerful. And to parties on the other side of a matter, we are downright scary. In the collaborative process attorneys work to reduce the level of anxiety for the parties, rather than adding to it. We perceive our role as facilitating and coaching our clients to negotiate effectively with their spouses within an environment of cooperation.
The “power” conference room → round table, comfortable décor
Instead of conference rooms designed like boardrooms, an attractive, comfortable environment can help lower anxiety levels and make conversation more productive. The physical space in which collaborative law sessions take place can help foster cooperation, if it has a round table, rather than an oblong or rectangular table. With a round table there is no “power” position and no jockeying for control of the space. The space can help reduce anxiety if it has an informal feel, and perhaps some refreshments. Plenty of natural light will also help lighten the mood.
Explaining the law → listening
In the legal system, attorneys explain the law to clients. In order to do this, they sift information for issues, gather facts relevant to the issues identified, apply legal precedent, and determine the likely outcome in court. Attorneys in the collaborative process are less concerned with explaining the law and focus more on understanding the needs and interests the client is seeking to satisfy through a negotiated agreement. These needs and interests may be more or less relevant to what the law is, but the lawyer’s primary task is to listen to understand these needs and interests.
Motions and hearings → four-way conferences
Since the attorneys are disqualified from going to court in the collaborative process, the dispute resolution mechanism no longer consists of the many complex procedures of the litigation system. Rather, the four-way conferences serve as the forum for dispute resolution. Likewise, telephone calls and courthouse conferences between the two attorneys are no longer the forum for negotiations. Again, the four-way conferences serve as the forum for all negotiations in which the attorneys participate.
From proving who’s right and who’s wrong to negotiating interests
Another difficult shift for attorneys moving to the collaborative process is the adoption of the interest-based model for negotiation. The traditional model for negotiation in the context of legal disputes is a combination of positional bargaining and reference to an objective standard—i.e., legal precedent or a presumed outcome in court. The traditional model for negotiation, however, often depends on deception (bluffing), psychological pressure, and coercion to reach an agreement, all of which is very damaging to the relationship of the parties in dispute. In the collaborative process, attorneys use an interest-based model of negotiation in which taking positions is avoided and the underlying interests of both parties are considered in searching for strategies that meet everyone’s needs.
Rights and entitlements → needs and interests
The legal system is founded on establishing rights, duties, entitlements, and obligations. Decisions are typically based on moral judgments of right and wrong. Assigning blame and demanding compliance are all part of the process. These things, however, are inconsistent with effectively negotiating interests. Assigning blame and demanding compliance create defensiveness in the other party and make it less likely that they will willingly comply with a request to meet the other person’s needs. Interest-based negotiation is founded on effectively asserting needs and interests, appreciating the other party’s needs and interests, and developing win/win strategies and options that will meet everyone’s needs and interests. Asserting rights, finding fault and making demands retard and disrupt negotiations in an interest-based model.
Punishment → protection
The legal system is often used to punish “wrong-doing.” In reaching negotiated agreements, few people willingly agree to be “punished” or desire to admit wrongdoing. The collaborative process is not effective in meting out punishment or getting admissions. The collaborative process, instead, seeks to protect everyone’s interests through a negotiated agreement. Seeking to punish is counter-productive to this effort.
Winning and losing → joint problem-solving
The legal system forces parties into a win/lose posture. In the collaborative process, the parties engage in joint problem-solving in an effort to achieve win/win solutions. Despite the desire to sometimes lash out and hurt the other spouse, there are ultimately no divorce cases in which the well-being of one spouse is totally independent of the well-being of the other spouse. Damaging the other spouse is self-inflicting a wound. Couples ultimately have incentive to negotiate arrangements that do not harm the other person and reach a win/win solution.
From using coercion to achieving empathy
Yet another difficult shift for attorneys is giving up the ultimate threat to get what their client is demanding by obtaining a verdict in court if the other side does not agree. From the adversarial world view in which attorneys operate, it is difficult to see how parties can resolve disputes where there is no final arbiter. In the collaborative process, attorneys seek to help parties resolve conflict, not by threatening to take a matter to court, but by helping the parties understand the other perspective. Attorneys help opposing parties see the other party not as an enemy, but as another human being, who’s well-being impacts their own. When the parties are able to empathize, resolution of the conflict often follows.
Intimidating the opposing client → empathizing with the opposing client
As attorneys we may work long years developing a reputation as skilled advocate and litigator in order to intimidate opponents into sitting down at the settlement table and agreeing to a resolution that favors our client. As a result, in the collaborative process, our client’s spouse may have significant concerns about our intentions and whether we intend to do them harm. In the collaborative process, attorneys lead the way in breaking down these enemy images by demonstrating that they have a genuine concern for the feelings, concerns, and interests important to the other spouse. Successful resolution of a dispute is more likely when the attorneys show a respectful understanding for what each of the parties, not just their own client, is experiencing.
Unilateral actions to gain leverage → sitting down and talking
Attorneys in traditional negotiations frequently seek to obtain bargaining leverage by controlling some aspect of the situation important to the other spouse. For instance, an attorney might advise his client to remove furnishings and household goods before vacating the marital home, in order to have possession and therefore control of the property during the negotiations. Thus clients are advised to take unilateral actions to gain an advantage. In the collaborative process, nothing is more damaging to the likelihood of a successful resolution than for one spouse to take a unilateral action that the other spouse perceives as detrimental to his or her interests. In the collaborative process the couple confers before doing things that impact the other spouse.
Third-party decision-making → self-determination
In the civil judicial system, the objective is for a judge and/or jury to render a decision that resolves a dispute. A third-party, rather than the parties who are in dispute, makes the decision. Obviously, in most civil cases, a judge or jury never actually renders a decision, because most civil cases settle prior to trial. Nonetheless, settlement discussions in civil cases are heavily influenced by the notion of a third-party decision-maker. Settlement discussions are generally geared toward replicating what the judge or jury would do, if the case were to go to trial. Attorneys assess and then debate what would happen if the case went to trial. In collaborative cases, there is no third-party decision-maker. The parties themselves determine the outcome. The parties assess and debate potential strategies for having their interests met. Neither a judge, nor the attorneys, determine the outcome of a collaborative case.
“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby — not even money; certainly not my soul.”
— Mohandis K. Gandhi
