There are many reasons that there are currently fewer Collaborative cases than there are mediation and litigation cases. Just to name a few of the challenges: the process is newer and less well known to the general public; there is still confusion about the cost and benefits of the process; and there aren't as many practitioners trained in the process as there are in mediation (and no additional training is "required" to go to court). Collaborative Law, like mediation, requires that both parties choose the process. If one party wants to go to court then the other essentially has no choice.
There are many seminars on informing the reluctant opponent, and about educating other professionals regarding Collaborative Law and hopefully these strategies will help more cases resolve amicably. However, there will always be some cases where one side chooses to hire an attorney who believes litigation is the best route, or at the very least is not willing to be disqualified if the case goes to litigation. When that happens, should we fight fire with fire? Do we, as Collaborative professionals, give up and accept that this is just another non-collaborative case? Or even more drastic, do we give up the case because we don't want to litigate?
If you're thinking that you don't have a choice, you're wrong! Your clients have a choice, and so do you. You may not see the choice yet, because like so many of our clients, when it comes to our own lives and our own businesses we can't see all the options without help.
For starters let's try to learn from the advice we give our clients:
You do not control the actions of other people,
but you do control your own actions and reactions.
One of the strengths of the Collaborative process is in challenging the clients to identify their goals before looking for solutions. Well, what happens if we apply that same process to this problem.
Is the problem really that you aren't getting cases? Or is the idea of getting more Collaborative cases actually your proposed solution to an unidentified problem. Instead of trying to jump to a solution, let's try to identify your goals first. What are the goals that you have as a professional that lead you to want more Collaborative cases?
For me, I had four goals in providing Collaborative as an option to my clients:
- Enjoy my work more;
- Have happier and more satisfied clients;
- Leave divorcing parents in a better position to communicate about their children, and thereby help more children feel like they still have a family;
- Get paid for the work I perform.
I believe that having more Collaborative cases will help me accomplish these goals because:
- I enjoy working with the professionals in the Collaborative community and many of them are my friends.
- My clients will be more satisfied because I will provide a more efficient product to my clients, which means spending less time litigating (and in the worst instances fighting with attorneys who chose to make the process personal). The process is also more efficient and the clients happier, long-term, because we spend more time rationally solving their disputes rather than letting a stranger decide their fate.
- The children of my divorcing clients will likely feel less tension because my clients will be more involved in the problem solving process so that they can learn to solve their disputes better in the future without my help. In addition, they can choose to prioritize their children's needs in the process, thereby giving their children a voice in the room that they likely wouldn't have in court.
- More satisfied clients are more likely to pay their bill.
Great, I have identified one solution that prioritizes all of my goals. However, in the Collaborative process we wouldn't stop there. We must also present other options, and we must evaluate whether this is the best solution or at the very least whether it is a realistic one. If clients don't choose Collaborative as often because the word is not out yet, then is this a realistic solution? What if one client chooses the Collaborative process and the other hires an attorney who says they won't agree to the disqualification clause? Is your only option to litigate? Even the briefest of brainstorming would suggest other options: withdraw from the case, talk to the other attorney further, seek other options from litigating even if there can't be a disqualification clause, etc.
Now that we recognize that there are other options for solving the problem, the next step is to determine what is the best option. While the best solution may vary from case to case, we've effectively re-framed the problem.
But, wait a minute. You're wondering how this helps you get more Collaborative cases and whether the title to this article was just a tease. Don't worry, I'm getting there.
Just because the problem is different than you thought it was, doesn't mean there isn't an answer. It just means you're still defining the problem incorrectly. So let's step back even further:
How are you defining a Collaborative Case?
You will often hear attorneys who haven't been trained in Collaborative Law still say: "Well, I am collaborative." You will also hear Collaboratively trained attorneys often say: "Well, I haven't had any Collaborative cases yet." How can untrained attorneys be getting Collaborative cases when trained attorneys aren't? Obviously, their definitions are different.
At the recent MCLC's Interdisciplinary Introduction To Collaborative Law Training we provided some key terms to understand in Collaborative Law, and one of the most important is the distinction between Collaborative and Cooperative:
Cooperate/Collaborate – When people cooperate, they work independently toward separate goals that may be compatible but are not necessarily mutual, and often compromise to reach resolution; when people collaborate, they work together toward shared, mutually beneficial goals, and co-create a resolution.
When untrained attorneys say that they're collaborative, what they are really saying is that they wont' fight you unnecessarily but that their goal is still the best possible resolution for their client. They really mean that they are willing to be cooperative. As Collaboratively trained professionals, we have the skills to go beyond cooperating and help our clients learn how to actually Collaborate.
Consider an example: I have a case where the other attorney refuses to sign a Collaborative Process Agreement, but agrees to meet outside of court in order to try and settle "amicably." Rather than discuss the parenting plan details with the attorney over the phone I suggest that we have a meeting with both clients in the room so that they can be part of the discussion. While my client has a position that he has come in with, I encourage him to consider what his goals are and to be open to other options. In the meeting, I help my client voice his goals and concerns, but I don't only speak for him. The other attorney follows my lead and encourages her client to do the same.
Is that a Collaborative Case?
Is that a Collaborative Case?
Using the skills I learned from Collaborative training, I've helped move the discussion past a simply cooperative discussion to a potentially Collaborative one. Just because the clients haven't signed on to do this with every issue doesn't mean they can't still benefit from these skills being applied to their case.
By applying these skills to a case that may not be considered "technically" a Collaborative case, I have still manged to meet some of my original goals. I didn't have to give up the case (or the fee), and my client (and his children) are potentially in a better position because of the skills I've applied to the negotiation.
If you apply your Collaborative skills to more of your cases,
then those ARE Collaborative cases.
Over the course of my career I have handled many litigation, negotiation, and cooperative cases. Since I took the Collaborative training, I have had only five cases where both parties agreed to sign a Collaborative Process Agreement. Should I only count those cases as Collaborative cases? What if an agreement wasn't reached? Is that better or worse than a case that was not an official Collaborative case, but settled outside of court because I treated it like one?
Collaborative law practice is a mindset and a set of skills, and if you haven't had any Collaborative cases yet it's because you aren't applying those skills and accepting that mindset. Reframe the problem.
Stop trying to turn clients into Collaborative cases. Instead help your clients by applying your Collaborative skills to their case, whether or not the other side agrees to sign a Collaborative Process Agreement. If you have that mindset, then the next client that walks into your office is your next Collaborative case.