by Laurie Israel, Esq.
The first question I am usually asked when I suggest to a client that Collaborative Law (“CL”) may be the optimal method to resolve the client’s legal problem (usually a divorce) is, “Doesn’t that mean I won’t be able to get what I deserve?” The first question I used to hear, 3-4 years ago, was “What is collaborative law?”
Now with collaborative practice growing in the U.S, Canada and in many countries around the world, CL is becoming familiar to many people. With high profile cases such as the Roy Disney collaborative divorce, reports in the mass media, and depictions in movies such as Juno, people are learning about CL and visiting CL websites. As our growing practices indicate, many divorcing couples are seeking out collaborative practitioners to assist them and their families in their divorces.
I was born shortly after World War II. People my age or older have a sense of the word “Collaboration” that is colored by World War II history. Collaborators teamed up with their Nazi occupiers, sending many innocents to the gas chambers and prison camps. After the war, females who were identified as war-time collaborators had their hair shaved off and were subject to abuse. Male collaborators were subjected to criminal charges, went to prison, and lost their good reputations. The word “collaboration” became a dirty word, because it meant alliance with the enemy.
Now, the word “collaboration” has a completely different and positive connotation. It means working well together towards a common goal. In our interconnected culture, subtly changing under the unifying flow of the internet, the word “collaborative” is having a resurgence in all parts of our society — in business, in the media, and in lifestyle reporting. I now see the word almost on a daily basis in the media. People are embracing the idea of working together in a way they never have before. It is a new time in the history of interconnectedness.
But here’s the dilemma: while it’s fine to collaborate with one’s business associates, co-workers, spouses, friends, family, and neighbors, should one collaborate with an enemy? And isn’t the soon-to-be ex-spouse the enemy? By collaborating in a divorce, doesn’t one have to give up what one wants? How do you collaborate with a legal adversary? Does entering into the collaborative process in a divorce cede power and weaken one’s case?
How a “Collaborative” Lawyer Advocates for their Client
As is now becoming well-known, a collaborative divorce proceeds as a series of four-way meetings with the two attorneys and the two collaborative clients. Here you have the answer to one of the greatest concerns of potential CL clients. In CL, each of the clients has his or her own attorney. Yes, the attorney is bound by the ethical law to advocate for his or her client, but the collaborative attorney is very skilled in working “zealously” in a productive rather than in a confrontational way. Collaborative attorneys strive to use the kind of “right speech” that will not harden positions or throw gas on the fires.
One of the most compelling aspects about advocacy in CL is that your wishes and goals are not hidden. There is no need to manipulate or trick counterpart (not “opposing”) counsel and your spouse. Your needs and wishes can be right out there, on the table, from the beginning. In fact, the advocacy becomes even stronger, because it is honest and it is expressed out of vulnerability. It is backed by honest truths about what you feel, believe, and want. It is informed by your “take” on the history of the marriage.
The four-way conversation is direct and frank. Goals are put out into the open and not hidden. Such vulnerability and honesty generally elicits the same in the other spouse rather than anger, defensiveness, and lack of sympathy. What generally happens in CL is that the other spouse will also freely and honestly present his or her feelings and beliefs about the history of the marriage, the contributions of the parties, and what he or she needs and wants. For some ineffible reason, this openness seems to begin to “solve” the puzzle of the divorce — i.e., how the spouses will decide on the terms of their divorce.
Because Collaborative counsel has spoken extensively with the client privately, he or she can step in to help the client express his or her feelings. Additionally, Collaborative counsel makes sure all issues are brought up and discussed, leading away from negative paths and impasses.
A Collaborative counsel may gently ask questions of his or her client so that feelings, facts, and goals are more fully expressed. And in CL, one of the spouse’s attorneys can even ask questions and engage directly with the other spouse. Building a respectful relationship between counsel and the other spouse is crucial in CL in making the process work.
Advocacy in CL consists of getting each of the client’s stories out in the open, elicited respectfully, which is what everyone deserves. Without hearing the full story from both sides, the work is impossible. A fair, fully-contemplated result cannot be attained. In CL, each spouse’s cards are put on the table honestly, fully, and explicitly. This is the opposite of litigation, where facts are withheld, to be pried out through depositions, interrogatories, and testimony at trial. In litigation, things often remain hidden and unrevealed, to be used in a structured skirmish in court. If there are secrets that a party wants to keep, and if a party wants a war, then collaborative law is not the way to go.
So, advocacy in CL is not pounding the table and threatening the other side and his or her attorney. It is developing fully-expressed and understood communications, all the important facts, thoughts and feelings. This level of communication is crucial for the collaborative goal of achieving a workable, fair agreement between the parties on all matters related to their no longer being life partners.
Collaborative practice reduces defensiveness
Medical research shows that if attacked verbally, within seconds the limbic brain becomes active. This is the part of the brain that controls the body’s “fight or flight” response. Once the limbic brain becomes active, the thinking brain becomes ineffective for a period of twenty to sixty minutes. We see this problem at play in divorces all the time. When people (not just the clients, but also the attorneys), attack each other at a four-way meeting, not much can be accomplished. Everyone is operating at their lowest level and everyone becomes very defensive.
However, when the parties can express what they think freely without being attacked, then progress can be made. When questions can be asked by counsel and clients that are genuine questions and not veiled attacks, then people do not get defensive. When everyone tries to unfasten themselves from prior assumptions and move past rigid stances and flawed understanding of the facts, then movement towards resolution can be made. When this good work is done, four-way meetings become a very powerful force for change and can move the parties towards mutual understanding and, eventually, to an agreement.
Collaborative Law and Mediation
Many people hear about mediation and think that they would like to use it to resolve their divorces. The idea of one mediator, benevolent and fair-minded, completely resolving everything (without those pesky and expensive lawyers involved) is very appealing to many divorcing parties who get along fairly well with each other. But mediation has its drawbacks.
A mediator cannot advocate for either spouse. The mediator must be a neutral. He or she must give the appearance of neutrality, even if the mediator is more sympathetic to one of the parties. The mediator cannot give legal advice and will refer the parties to consulting reviewing counsel. A mediator may present what the legal “rules” are, to the best of his or her ability, but cannot promote a particular resolution.
For this reason, it is strongly recommended that the divorcing parties in mediation be in contact with separate attorneys who can provide counsel, advocacy, and evaluation of the agreements that result from the mediation. It is best if the reviewing process happens during the course of the mediation, and not merely at the end. And it is better if the parties meet with separate counsel to find out how the “law” applies to their divorce prior to the first meeting with the mediator.
A major difference between divorce mediation and CL is that in CL neither attorney is neutral. Each of the CL attorneys is his or her client’s advocate. Although CL is not mediation, it does have certain elements of mediation, and there are important connections between the two.
Many of the techniques used in mediation are taught in CL trainings and are used by collaborative practitioners. Most collaborative lawyers are trained mediators with significant experience in using mediation techniques. A large number of collaborative lawyers take advanced mediation trainings and advanced collaborative law trainings. This increases our capacity to resolve disputes by fruitful discussion.
For example, we employ the mediation technique of “reframing”, which is so useful in resolving disputes. In reframing, someone’s negative statement can be restated or “reframed” as a positive need or wish. That’s good for dispute resolution and good for a divorcing couple. Another mediation technique we use is “active listening”, where the listener asks questions as to what the party has said to increase understanding, avoid miscommunications, test assumptions, and discard those assumptions that are incorrect.
Collaborative practitioners are constantly seeking out, learning, and putting into their practices other helpful techniques — for example, Sharon Ellison’s method of Powerful Non-Defensive Communication (“PNDC”). As part of this practice, people are encouraged to forswear immediate first reactions, which are often emotionally-based and not an accurate response to what was said. Instead, the listener asks gentle, non-accusatory questions to more fully understand the speaker’s intent and thoughts. This method of communication skips the defensiveness so prevalent in our communications. Mutual understanding and greatly improved communication follows. Aside from its obvious utility in our own relationships with family, friends, and co-workers, PNDC is a wonderful technique to apply in collaborative four-way meetings. I strongly recommend Sharon Strand Ellison’ book on PNDC, Taking the War out of Our Words, to all collaborative practitioners and their divorcing clients, as well as to married people who do not plan to get divorced.
Many collaborative practitioners are beginning to study another body of learning, called Appreciative Inquiry (“AI”) and incorporating it into their practices. This technique involves envisioning positive perspectives. It has the benefits of leading to positive change, increasing hopefulness for the future, and maximizing improvement in relationships. As in PNDC, part of AI training is to try not to act on our own assumptions and expectations. These can be wrong and, if we’re stuck in them, change will not happen. A fundamental truth about dispute resolution is that it relies on change. Both parties must change a little to come to agreement, so these techniques are good for our skills as Collaborative lawyers.
So while CL is not mediation, because of the background and skill set of collaborative lawyers, sometimes a four-way meeting feels like a mediation session. Although not per se bodies of legal learning, mediation techniques and these other related methods provide real help and viable solutions to legal problems. A good collaborative practitioner constantly seeks further trainings in these practices and techniques.
The Benefit of other Collaborative Professionals
Another benefit of collaborative practice is its breadth. Collaboratively trained mental health practitioners (“MHPs”), process coaches, financial planners, accountants, and other professionals strengthen the resources available to the divorcing couple. These professionals add much value to collaborative cases. They can help defuse impasse quickly and provide crucial financial information. Often, the assistance of one or more of these collaborative professionals can significantly speed up resolution and therefore save the couple money. I have personally seen this happen many times.
I am often amazed at how a process coach can come into a heated four-way meeting and calm everyone down with questions and comments that are so highly skilled that defensiveness becomes defused. (It’s usually much better to begin with the process coach as the fifth party to the four-way meeting.) Or how a neutral MHP can, within an hour, help divorcing parties agree on a parenting plan that would have been hotly contested providing divisiveness in a number of four-way meetings. These collaborative professionals add great value to a collaborative case. There are certain things an attorney — even a collaboratively-trained attorney — just can’t do.
Similarly, financial professionals can quickly and efficiently run the numbers to see what financial possibilities exist for the divorcing couple and their children. Many attorneys are adept financial planners, but it is hard to rival the efficiency of a true financial professional, who can run spreadsheets showing income and expenses in the two households more quickly, accurately, and at less cost. The data helps parties make decisions and come to agreements faster in the four-way process This, too, can save the divorcing couple money by shortening the divorce process and making the work of coming to agreement more reflective of their actual financial situation.
The Power of the Commitment Not to Litigate
We have talked about how CL combines and contains elements of advocacy and mediation. Why do I call it a “container” and, why, a “safe” container?
There is a vast difference between a garden-variety negotiated divorce case and a CL case. In the negotiated case, the veiled threat of litigation is always lurking underneath. It degrades the ability of the spouses to work constructively towards a sound agreement. It is often expressed subtly and not-so subtly during the negotiations. This makes people feel unsafe, angry, protective, and defensive. It detracts from the quality of expression and interaction that is the hallmark of a CL divorce. This positive quality of interaction that makes the result so fruitful in CL cannot happen in an unsafe environment where the next step might be a court pleading or a deposition.
CL is different. Parties sign an agreement at the outset not to litigate the dispute during the collaborative process. By this means, a zone of safety is created for the parties. And if the parties choose to litigate, they must choose new attorneys in new firms and essentially start the divorce process again. It is almost like a “marriage” to the collaborative process.
There are no threats in CL. Thus, CL is free of the largest looming threat in divorce — litigation. It is a cooperative process towards a common goal — a sensible, sensitive divorce. It gives respect to the parties, their children, and the life they formerly shared. Although collaborative four-way meetings can be difficult and contentious at times (and many of the collaborative divorce cases we see are complex and challenging), there is security in knowing that the process is contained. This is reflected greatly in CL’s high success rate.
The collaborative process is strong. It can absorb bumps and conflicts along the way because the vision is there at the beginning that the process will end with agreement and a good plan for the spouses’ new separate lives as they become former spouses. People generally feel very good after a collaborative divorce has been completed. They have terminated their marriage with respect and integrity.
CL is a safe container in which all of the issues of a divorce can be worked out. In this safe environment, where the threat of litigation is not present, vulnerability can occur. It turns out that being vulnerable, open, and honest is not harmful to the divorce process, but actually can help accomplish a peaceful, thoughtful divorce through increased understanding and compassion. Collaborative divorce incorporates the best elements of mediation and advocacy and draws out the best creativity from the divorcing parties and their lawyers. As a result of the CL process, divorcing parties are able to put into effect their most positive visions of their future.
Copyright ©2008 Laurie Israel.
Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.