From my lawyer’s point of view, the ethical underpinnings of Collaborative Law are founded upon the accepted notions of “limited representation” and “informed consent”. Our Collaborative Participation Agreement limits my role to one of negotiator as opposed to litigator. When clients agree to resolve their marital dispute by way of the Collaborative Process, it is my understanding that they are consenting and agreeing to utilize their respective legal counselors for the limited purpose (their expressed intent) of helping them reach a negotiated settlement. How this is done varies from lawyer to lawyer; practice group to practice group. The process requires both couples’ consent and commitment. It also requires, at a minimum, the commitment of two lawyers. A joint venture is thus created by contract between husband and wife . Unless both clients’ interests are adequately met the venture will fail (impasse). I believe that my duty as a lawyer in the Collaborative Process is to see that the choices my client makes in coming to an Agreement are measured and informed. Our training calls for transparency, exchange of information, creation of options and consideration of consequences. Then the negotiation…
As Bernie Mayer points out in Chapter 7, of The Dynamics of Conflict Resolution, “all negotiations have distributive and integrative aspects, but at any given time, one of these dimensions tends to dominate the spirit of the discussions” (timing is everything). Mayer explains, “To the extent that a negotiation is about gaining as much as possible of what is available it is distributive; alternatively, people can try to meet their needs through increasing what is available for all and making sure everyone’s needs are adequately addressed. This he describes as an integrative approach. Collaborative Law is represented to the consuming public as interest based negotiation; the possibilities of a “win-win” have long been held out as the carrot. It is a process grounded in collaboration (act of working together). I see its very essence as a patently integrative approach to negotiation. How clients measure and weigh their interests, is the grist for their integrative mill; it’s what our four-ways and five-ways and even six ways are all about. Settlement by its very nature requires an integrated resolution; one that satisfies both parties’ interests. And yes, there will be a distribution, a give and a take, and the distribution must be considered “fair” by each party. The problem I often encounter in Collaborative negotiations is that it relatively easy to measure and weigh distributed sums of cash from a finite “pie”, it’s not so easy to measure and weigh a distribution of non-monetary gives and takes from an integrated family system of blended monetary and emotional interests. Lawyers beware! It is a slippery slope and great care is required not to fall into old patterns. To get to the proverbial “Yes”, each client will apply his or her own standards of fairness.
Underlying the question about the need for advocacy in any particular collaboration, we face another question, and perhaps it is the question that is at the heart of the matter for lawyers, to what extent do the lawyer’s standard of fairness influence the client’s standards? Has our process provided the time and space necessary for our clients’ own senses of fairness to develop and evolve after adequate information, options and consequences have been developed? Is it the clients’ paradigm or the lawyers’ paradigm? What are the units of measurements; who’s reading the measure; and, who’s holding the tape? And of course, our clients think they are paying for our “legal” opinions, and their insecurities (needs) force them to wonder, what do you think is “fair”? How sure can we be? How do I keep expectations in line and yet, for the client who wants a settlement, amenable to compromise?
Words can have different meanings to different people. To Webster, to advocate, means "to plead in favor a cause of another." So, when considering the role of advocacy, what is a client’s "cause"? What are a client’s interests? What is the hierarchy of those various interests? Then, of course, who will we advocate too? Is your Collaborative counterpart so myopic and unbending that you need to "plead" your client’s case to that lawyer? What about the futility of arguing? Is it your role to plead to the other client? How much do you trust the other lawyer to have imparted your point of view to the other client? Does this happen in front of the clients to satisfy your own client’s (or your own) fantasy about the expected role of attorneys? Are we meeting our personal needs to provide value, to prove our worth, or are we attempting to meet the needs embodied in the commitment to resolve issues by way of negotiation as opposed to litigation? What promises were made before the Collaboration Contract was signed? Can or should those promises/expectations be adjusted after the Participation Agreement has been signed?
I believe that the challenge for the Collaborative Lawyer, involves his or her individual ability to differentiate between the advocacy skills required in a judicial court or tribunal, and the skills required to work directly with the other Collaborative professionals in the case, as well as the set of clients who have hired them, for the particular task of collaboratively completing a settlement in accordance with the process set forth in their Collaborative Contract. I propose that advocacy is not one of the skills required for such a task. Indeed, rudimentary advocacy often leads to distrust and renewal of deep-seated adversarial lawyering (it is so hard to react and it so often sours a case). And, we have promised something different. This does not mean that the distributive nature of negotiation is not present or should be ignored. To me, it simply means, in the commonly understood meaning of the word, that the skill needed for accomplishing the distribution does not necessarily require advocacy.
What I have found helpful and effective are listening skills; taking time alone, and in collaboration with Collaborative colleagues, to process, integrate and internalize the information that has been developed in meetings and with clients; and, ultimately trying to understand what BOTH clients need (their process needs, as well as substantive needs) to settle the case. And, in addition, using my experience to help clients understand that what they think they need (for themselves), is not always the same as what they need to accomplish a settlement consistent with their original stated goals. For the negotiation to be successful, communication needs to be effective. When clients speak, and when lawyers speak, and when any other team member speaks, I will listen, and I will hear, and I will respond. We will collaborate and we will problem solve.