Regarding the question about the need for advocacy in any particular collaboration, we face another question, and perhaps 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 is reading the measure and who is holding the tape? And finally, our clients who understand that they are paying for our “legal” opinions always ask us, What do you think is “fair”? Does it really matter what the lawyer thinks is fair? Is fair what happens in court? 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 because it is so hard not to react, not to be drawn into attack and counter-attack patterns of conversation. Collaborative cases are difficult. In the Collaborative arena, we have promised something different. This does not mean that the distributive nature of negotiation is not present or should be ignored. In contrast, it simply means that in the commonly understood meaning of the word, the skill needed for accomplishing the distribution does not necessarily require advocacy.
What I have found to be helpful and effective characteristics of Collaborative Lawyers are good listening skills and taking time to process what you have heard. These skills are necessary in collaboration with Collaborative colleagues in order to understand, integrate and internalize the information that has been developed in meetings and with clients. Ultimately, the members of the Collaborative Process team are trying to understand what both clients need, including their process needs and substantive needs in order to settle the case. In addition, lawyers must use their experience to help clients understand that what they originally thought they needed is not always consistent with what they need to reach ultimate settlement. For the negotiation to be successful, communication needs to be effective. When clients speak, and when lawyers speak, and when any other team members speak, I will listen, and I will hear, and I will respond. We will collaborate and we will problem solve. Only when we are ready to listen to another’s problems, can collaborative problem solving take place. Short of that, one person will have to give in to the other’s demands. The same old patterns of attack, defense and counter-attack will most likely unfold, and nothing new will be accomplished. Patterns of victimization, vilification and intermittent self-serving rescue attempts must be broken for meaningful conflict resolution to blossom. The most common area of over-lapping and competing interests involve the children, the house, the retirement savings, the business and the income it produces for all concerned. All the stake holders must be heard and the mutuality of inter-dependent interests are recognized for everyone’s sake.