The statement that Collaborative Law is just a legal process is generally made to silence those lawyers who seem to many of us to be straying further and further away into “therapy” or as one colleague put it “tree hugging for lawyers”. To be in the forefront of a move away from the traditional way of doing things requires a certain pioneering spirit and dare I say it, a passionate commitment. It is this passionate commitment, frequently confused with evangelical zeal, that causes many lawyers to shy away in terror lest they be infected. You can almost see them arranging their fingers into a cross formation to ward off evil spirits. Is passion such a bad thing, particularly, when you know that what you are asking people, professionals and clients, to buy into, is so much better suited towards the resolution of family and couple issues than any other process currently available. And, in addition, all the research from the States indicates that unless this process is communicated to clients with passion, there is little or no take up. All that said, however, is it just a legal process at the end of the day? I believe that the reason it has so much more to offer clients is quite simply because it is more than just a legal process.
Collaborative Law offers an opportunity to families in crisis to transit from a one family structure into a two family structure without bloodshed (in a metaphorical sense) but more than that in a way that allows the family to preserve the essential communication between them that will enable them to continue to parent effectively post separation. By looking at the family as a unit and focussing on the continuing needs of that unit albeit now a bi-unit (if there is such a thing) the collaborative team will actively endeavour to bring about resolutions that do not leave one party feeling like they have lost at the expense of the other’s gain. Adversarial law (court practice) is position based i.e. each side tries to gain an advantage over the other and to win at the other’s expense whereas in collaborative law we are interest based rather than position based. Accordingly, we try and bring about a win-win by looking at every issue to be negotiated to see where value can be created.
One of the reasons it is very hard to work in the family law area is that clients are such a bundle of emotions which makes them very hard to manage but also they frequently want to talk to us about stuff that does not fit into the definition of a legal issue. We have the thankless and difficult task of making this particular family fit into a system that was not designed for them. Should we not mould the law to meet people’s needs and not the other way around? This is what collaborative law does – it takes this family with all their messy emotions and the issues that are not legal issues and it simply says ok, we can deal with all this. How? First of all, we will ensure that the lawyers who are adversarily trained work together rather than against one another and we do this by training them specially and secondly, we get them to sign a contract with the clients that if the collaboration does not work , the lawyers cannot continue to work for these particular clients and the file must be handed over to other solicitors. This ensures that the solicitors work together rather than against one another. Thirdly, we bring in collaborative coaches who are also specially trained and who have a therapeutic background. They will work with the couple to manage emotions while going through this very difficult time in their lives and they will also help them with their communication skills going forward. From the outset the collaborative process works directly with the couple to empower them to find their own solutions. All “experts” required are retained by the team and not by one party or a lawyer. Vital experts such as financial specialists and child specialists are collaboratively trained and work with the team. Financials do far more than just analyse the finances they actively assess the financial personalities of the couple, they work in the process constructively rather than to be destructive and they road test resolutions. The child specialist actively brings the voice of the child/children into the room in a non-judgemental way. This ensures a balance and focus within the process moving forward. When all these people work together, which they do, for the benefit of a particular family, no particular profession dominates, each piece is of critical importance. The energy created by diverse professional standpoints aligned to a common goal combined with the insider knowledge of their particular family dynamic that each couple uniquely possesses creates far more than just a legal process and allows for deep resolution and not just shallow peace. In fact collaborative practice understands that much of what divorcing couples need help with has little or nothing to do with the law.
When the lawyers come into this process they are of course coming into it to provide their legal knowledge but because they are working closely with coaches, child specialists and financial specialists as well as their colleagues they have to acquire knowledge and skills that were not required previously by them. This does not mean that they need to become coaches but rather that they have sufficient insight into their work so as not to actively harm the work being done by the coaches. Similarly the lawyers will have to interact with the financial specialist without attempting to position him or her or indeed any member of team, least of all their own client. Working within a team also requires self awareness of all members of the team and not just the lawyers. It may, however, be more difficult for lawyers than it would be for others since we are not given to a great deal of self analysis. All clients identify that their children are their priority and that they would like no harm to come to them. They want them to come through the divorce or separation unscathed. We refer to this sort of goal as a macrogoal. It is our job as professionals to offer a process which supports the client’s macrogoals while at the same time assisting them in controlling the negative potential of their emotions and prevent them from sabotaging their own macrogoals. As the Californian Collaborative attorney and mediator Chip Rose says “The recognition that divorce creates significant legal, financial, psychological and emotional needs in our clients and the creation of a practice model to address the confluence of those needs fills a vacuum in the dispute resolution options for clients.” The interdisciplinary team model of collaborative work is collaborative practice’s unique contribution to alternative dispute resolution and to a holistic approach to families and clients in crisis.