Collaborative Law
- Exploring
people’s interests and real concerns
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Lawyers and parties acting as a team, not as adversaries
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Solving problems through cooperation rather than litigation
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People deciding for themselves rather than having a judge
decide for them
COLLABORATIVE
LAW EXPLAINED 
Links
COLLABORATIVE LAW EXPLAINED
THE PROBLEM
When Lynn
and Eric divorced, it really didn’t have to end badly. Twenty
years of marriage and two great children (one starting college,
the other in high school) - pretty good mental health all the
way around - enough money so that desperate financial security
wouldn’t spike the anxiety level...actually the only thing standing
in the way of a good divorce was the lawyers.
Now don’t get me wrong. I like lawyers. I’ve been a lawyer for
over 30 years and some of my dearest friends are lawyers. Lynn’s
lawyer was me, and I like me. Eric’s lawyer was a fellow I knew
by reputation (good) and he bore that out. He was a man of great
integrity and equanimity.
So what
happened? How did these two good people end up despising each
other? Why did they come out of the legal process (which settled,
by the way) deeply embittered toward one another? It’s because
of an adage I’ve repeated for years in my Family Law for the
Mental Health Professional seminars: Lawyers are trained and
educated - indeed they feel ethically obligated - to make a
bad situation worse. The reason is the adversarial system of
dispute resolution that lawyers are acculturated into. The idea
has always been that if I represent my client “zealously” and
the other lawyer does the same, then the independent decision
maker (judge or jury) will be able to make a fair decision.
Now on one level, it can’t be any other way. (Imagine if suddenly
you were slapped with a lawsuit that you didn’t think was fair.
You’d probably want someone who you knew was 100% in your corner.
The legal process, after all, is a scary place for all but the
lawyers who live there.) Yet on a deeper level, it is a method
of dispute resolution that cannot help but lead to polarization
- and that’s what lawyers have been trained to do. Lawyers tell
a client what they are legally “entitled to,” so from the start
we contribute to a rigidity borne of fear and self-protection.
We learn to argue both sides of a case, not so we can develop
empathy for the other party, but so we can undermine and defeat
them.
Anyway,
Lynn and Eric settled their divorce after a “mediation” session
in which the mediator shuttled from one conference room to the
other, delivering offers, helping fashion responses, cajoling
the recalcitrant parties and absorbing their hurt and anger.
Each person’s real interests and concerns were not given vent
so that in some way, amidst this terribly difficult time, these
former lovers and current parents could in some manner come
together. More’s the pity, as the process ended with each person
feeling they had lost.
It didn’t
have to be that way and a growing community of lawyers are standing
up to the dominant culture of the adversarial system, pursuing
a revolutionary and (dare I say it) healing brand of legal representation
and counsel known as Collaborative Law.
THE PROMISE
Collaborative
Law sprang initially from the mind of a Minnesota family lawyer,
Stu Webb, who simply refused to drag his clients into court
on divorce cases - and he let his opposing counsel know it.
He strove to construct an environment in which the lawyers could
work together in fashioning a workable solution to their clients’
joint problem, rather than against each other. The prevailing
assumption of the “zero sum game” in which one person’s gain
always came at the expense of the other was re-thought. Lawyers,
who were stressed and soul-weary from the hammer and tong of
divorce litigation and the avoidable bitterness of countless
Lynn’s and Eric’s, were drawn to this process. It took root
in such diverse environments as Texas, Saskatchewan, Northern
California....and Washington.
About five
years ago, a small group of family lawyer in Seattle began to
meet and discuss how the Collaborative Law process could be
brought here. Initially they formed a group known as Northwest
Collaborative Divorce, which evolved into the present Washington
Collaborative Law. Our website (www.washcl.org)
is an excellent source of information on the process, local
practitioners, and other resources.
HOW DOES
COLLABORATIVE LAW WORK?
The Participation
Agreement
In a collaborative
divorce, both parties and their lawyers sign an agreement that
neither side will go to court, but will, instead commit to resolving
all disputes through agreement. In fact, if either side does
go to court, then both lawyers must withdraw and the parties
have to retain (and pay for) new counsel. The expense and difficulty
of this transition, tends to “leverage” people into remaining
in the collaborative process, rather than reflexively running
into court if there is a disagreement. Rather than one person
and their lawyer sitting across the table (metaphorically) from
the other person and their lawyer, everyone is on the same side
of the table and the problem is on the other side.
No divorce
comes without conflict. Even the most amicable parting will
have certain areas of friction. Some dissolutions will bring
deep and raw feelings around parenting or financial security.
Regardless of the kind or intensity of the disagreement, one
thing is guaranteed - there will be a resolution, and a final
set of court orders, even if it comes after a trial before a
judge. Many couples have come to believe that it is in their
best interests to arrive at a solution together, which is tailored
to their lives and circumstances, rather than have a third person
impose a decision upon them. This is particularly true when
there is no way that third person can know the individuals and
the nuances of their disputes and deepest needs as well as they
do, themselves. The Participation Agreement and corresponding
commitment not to run to court tends to push the individuals
(and their lawyers) to a much higher level of creativity in
fashioning solutions.
The Good
Faith Commitment
The key
to making this process work is not the level of conflict between
the parties, but whether each comes to the table with a commitment
to act with integrity toward the other. If the individuals are
prepared to act honestly and in good faith with each other,
collaborative law will usually succeed. Trust can be tentative
at first - in fact that is natural. As the process unfolds,
and each person follows through on his or her agreements, trust
strengthens. The normal tactics of the litigated divorce are
not brought into play, which allows this process to take hold
and gain traction.
While in
litigation, parties and their lawyers seek to withhold information
unless it is specifically asked for, in the collaborative process,
each side commits to provide all relevant information freely.
Information is not seen as power. Instead, information is the
essential tool for working together in fashioning a solution.
The Four-Way
Meeting
The “engine”
which runs the collaborative process is the “four-way meeting,”
in which the parties and the lawyers sit together in a room
and discuss each person’s needs and concerns and explicitly
agree to work in good faith to achieve mutually beneficial goals.
While some people are just too uncomfortable about the notion
of sitting in the same room with their soon-to-be ex spouse
- and in those cases we don’t insist on the four-way meeting
- in most cases these sit-downs in the office of one lawyer
or the other provide many opportunities to clear up communication
and see the lawyers as problem solvers, not conflict escalators.
Many times, the civil, thoughtful interaction of the lawyers
has served as a model for the divorcing parties, themselves,
as they work through their disagreements and deepest concerns
about their future.
The Use
of Allied Professionals
Another defining character of the collaborative process are
what we lawyers call the “allied professionals.” These are therapists,
parenting experts, financial planners, business or real estate
appraisers, and mediators who join in the process, at any stage,
and render their assistance to both parties. These people are
specifically trained in collaborative law and facilitative communication,
so that they are able to provide the expert information the
parties need in a truly neutral fashion. Oftentimes, the parenting
concerns of the parties are resolved with the help of the allied
mental health professional and the lawyers aren’t even involved
at that point in the process.
The Key
- To Understand and Address the Interests of Both Parties
Lawyers
ask a lot of questions. Usually, however, when we are litigating,
we ask these questions in order to understand the opponent’s
weaknesses. If I am going to court, I want to know what your
vulnerabilities are, so I can exploit them. This is why family
law litigation is so destructive.
In the
collaborative process, we ask a lot of questions too. However,
now we have a different goal. Our exploration is now intended
to learn about your legitimate interests, and how they can be
satisfied. While a lawyer still owes a fiduciary duty of absolute
trust to his or her own client, in disputes between people who
have been closely involved and who will be in each other’s lives
well into the future, the well-being of the other person is
directly tied to that of our own client - particularly when
children are involved. Anyone believing that they can “win”
a divorce case with the other person “losing,” falls prey to
a destructive myth - to their profound regret as years of distrust
and bitterness over issues unresolved at the time of the divorce
weigh both people down as they struggle to create a new life
for themselves.
Collaborative
law was created for the purpose of avoiding the profound sense
of loss that often accompanies divorce. While it is certainly
not for every couple, it has found wide acceptance in many states
over the past dozen years. It has now become firmly rooted in
Washington.
Additional
Articles on Collaborative Law
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