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Mark R. Soboslai

Collaborative Divorce and Mediation

(203) 226-5759

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Uncategorized

The Collaborative Lawyer’s Role

December 14, 2022 By Law Staff - s.h. Leave a Comment

Most people (including most lawyers) are unfamiliar with the role of a collaborative lawyer. One reason for this lack of familiarity is that each collaborative lawyer functions as a member of a collaborative team and the entire process, by definition, is non-adversarial. Like mediation, the collaborative process is based upon the principle of client self-determination. The process is purposely designed to help the clients to reach agreement. In contrast, the traditional role of an attorney is to advocate on behalf of each client in an adversarial process where the judicial authority is empowered to decide.  Thus, while every lawyer owes a primary ethical duty to one’s individual client, the collaborative lawyer is also required to respect the collaborative team process. This involves a shift in the nature of the lawyer’s role as an advocate for each client.

Collaborative Lawyer

Compared with the focus of the adversarial court process where persuasion of the decision-maker is an essential skill of the lawyer/advocate, the collaborative lawyer functions within the non-adversarial, collaborative team process to facilitate a resolution of the conflict. Because the clients in the collaborative process are fully empowered to make all decisions, each collaborative lawyer seeks to empower the clients through various means, including education, counseling, and effective interpersonal communication. Every lawyer is both a counselor and an advocate and in the collaborative process, the role of lawyer-as-counselor rises to the forefront.

The persuasive advocacy skills of the courtroom lawyer/adversarial advocate are not relevant or useful in the facilitative/collaborative process that occurs entirely outside of the adversarial courtroom environment. To be effective, therefore, the collaborative lawyer must acquire and effectively apply an entirely different set of facilitative, conflict-resolution skills within the context of the team process. This involves significant differences, for example, in the approaches of collaborative lawyers toward negotiation.  Compared with traditional adversarial advocates, collaborative lawyers do not use threats of litigation as a bargaining tactic. Instead, at the outset of every collaborative matter, the collaborative professionals sign a Collaborative Participation Agreement which includes an agreement that they will not participate in any adversarial process.  Collaborative lawyers engage in negotiations consistent with these principles.

Collaborative negotiation is frequently described as “interest-based” as opposed to “positional” negotiation. This distinction requires further description and explanation for most clients because of the commonly accepted view of a typical lawyer’s role. Most people view the lawyer’s role based on the traditional court process in which the lawyer must persuade the judge/decision-maker to decide or “rule” in favor of one’s client. To be effective, each lawyer must establish a clear position and advocate vigorously to persuade the judicial authority to accept and adopt that position. Courtroom lawyers often form a “theory of the case” and zealously pursue that theory during contested proceedings. Of course, because the goal is to persuade that decision-maker to decide or “rule” in favor of one side, the advocate typically must also use every available means to minimize, denigrate, and diminish the claims, requests, and position of the opposing party. Cross-examination and skillful, persuasive argument are some of the most important and essential tools in the adversarial advocate’s toolbox which are designed to persuade the decision-maker to reject the opposing party’s claims. 

In contrast, because the collaborative professionals are working together with the clients outside of court (literally “collaborating”) toward a mutually acceptable, facilitated resolution, the process requires a completely different set of skills. During joint collaborative meetings, there is no cross-examination and no denigration of the claims or views of either client. To be effective, the collaborative lawyer must acquire and develop sophisticated interpersonal communication skills. To help a client explore their values and express their underlying interests, collaborative professionals work together to create a safe environment in which each client will feel free to express and explore whatever matters most to them.

 Knowing that clients typically have preconceived notions of how lawyers behave, it is particularly incumbent upon collaborative lawyers to explain the differences clients may expect from them during the process. While there is much more to be discussed and explained, the “bottom line” is that the goal of lawyers in the courtroom is to persuade the judge whereas the goal of collaborative lawyers is to help the clients to decide. Shifting out of the role of adversarial courtroom advocate to collaborative facilitator and conflict resolution professional is often referred to as a “paradigm shift.” To further clarify this distinction between the different roles of lawyers, the scope of the collaborative lawyer’s representation of clients is referred to as “limited scope representation.”

Filed Under: Uncategorized Tagged With: Collaborative Divorce, Collaborative Lawyer

Teaching Law Students About Collaborative Practice In An ADR Course

June 20, 2022 By Mark Soboslai Leave a Comment

The Curriculum                                                                                              

Collaborative Practice is an out-of-court, non-adversarial/consensual, client-centered conflict resolution process that is remarkably different in multiple ways from any dispute[i] resolution processes. For more than 30 years, as I’ve continued to teach law students about alternative dispute resolution (ADR) processes, I have repeatedly amended, revised and updated the curriculum in response to the constant growth, expansion and proliferation of creative options for the resolution of disputes. When I first designed the curriculum in 1989, Collaborative Practice didn’t exist. Collaborative “Law[ii]” first emerged as an “idea” in 1990 and since then this remarkable interdisciplinary process has grown and expanded to the extent that there are now thousands of Collaborative Professionals throughout the United States and the world. Interdisciplinary Collaborative Practice arguably does not fit within the context of a course that is limited to law students studying ADR.[iii] Nevertheless, because of its widespread popularity, an ADR course is not complete without at least including it as a module in the course curriculum.

To educate law students regarding the various dispute resolution process options my course curriculum consists of three modules and the multiple processes are organized on a spectrum categorized as adjudicative or consensual[iv]. The first module focuses on adjudicative processes (meaning any process in which someone other than the parties has the authority to decide or the “power to judge”) and the legal negotiation practices of lawyers in those processes. Students engage in exercises to simulate those negotiation practices “in the shadow of the law[v].”  Each attorney gathers evidence, evaluates the strengths or weaknesses of the case and establishes negotiation positions in the form of “claims” or “demands” knowing someone other than the clients is empowered to decide if the case doesn’t settle. Such adjudication-related settlement processes are technically “consensual.” But the active involvement of the clients is often limited particularly when the focus of the dispute involves competing “prophesies” of attorneys regarding the “likely outcome” of a trial[vi]. These initial exercises provide a basis for students to distinguish ADR processes on the spectrum which are “lawyer-centered” compared with “client-centered” processes addressed in the rest of the semester.

The second module introduces students to a variety of Mediation theories and practices. Distinguishing key aspects of these various theories and practices of mediators is indispensable to the study of Collaborative Practice as illustrated by the standards of the International Association of Collaborative Professionals (IACP) which require Collaborative Professionals to have “training in client centered, facilitative conflict resolution of the kind typically taught in mediation training (interest based, narrative, or transformative mediation programs).[vii]”  (Emphasis added.) Studying multiple Mediation theories, approaches of mediators, and involvement of clients in Mediation highlights the importance of client self-determination[viii] in “client-centered, facilitative conflict resolution processes” compared with adversarial, “evaluative,” lawyer-centered processes.[ix] Moreover, helping students distinguish between the various theories and approaches of mediators illustrates a remarkable feature of Collaborative Practice, namely, the collaborative lawyer’s intentional commitment to integrate facilitative, client-centered conflict resolution practices fully into the collaborative lawyer’s toolbox[x]. With this foundation in place, students are introduced next to some of the essential aspects of Collaborative Practice.

Essentials Of Collaborative Practice

Some of the essentials of interdisciplinary Collaborative Practice introduced in the third module include: the collaborative paradigm shift; select provisions from a typical collaborative participation agreement; and important aspects of working in an interdisciplinary collaborative team. In addition, students are introduced to the UCLA[xi] and the IACP Standards And Ethics[xii].

The Paradigm Shift

The collaborative “paradigm shift” is an essential feature of Collaborative Practice. According to Webster’s Dictionary, the word “shift” means “to move or to change a position, direction, opinion or belief.” The practical meaning of this “shift” or “change” is readily apparent when facilitative, client-centered, non-adversarial negotiation practices of collaborative lawyers are compared with competitive negotiation practices of lawyers representing clients in the traditional adversarial litigation “paradigm.”  Compared with such competitive/adversarial judgment-oriented negotiation practices, the collaborative lawyer avoids the potentially counterproductive impact of injecting competitive adversarial opinions and judgments into the process. Focusing upon client self-determination, the collaborative lawyer’s identity is redefined as a “helping professional.[xiii]” The collaborative paradigm involves more than merely helping clients avoid the damaging effects of adversarial litigation. The essence of judgment involves power, force and, as some theorists suggest, a potential for violence[xiv]. Helping involves healing and the potential for peace. Thus, defining the collaborative lawyer’s role in the collaborative paradigm as a helping professional redefines the practice of law as a healing profession and the role of lawyer as peacemaker.

The Collaborative Participation Agreement

At the outset of each matter, the clients and the professionals enter into a Collaborative Participation Agreement. An essential feature of that agreement is a clause which provides that if the matter does not settle, the Collaborative Professionals shall be disqualified from proceeding further with the matter. Importantly, this is a mutual commitment of all lawyers in a matter who would otherwise remain free to move the unresolved conflict into the litigation arena. Experienced and successful collaborative lawyers fully embrace this redefined advocacy role and do not view it in any way as a hindrance.  Instead, once that contractual (and personal) commitment has been made, a metaphorical door opens to allow all of the Collaborative Professionals to enter into authentic relationships with their clients and each other as conflict resolvers to help their clients. Collaborative Professionals fully understand and acknowledge how transparency, confidentiality and privilege apply to each professional’s participation[xv].

Other important provisions in the agreement include: a commitment to voluntarily disclose all information which is relevant and material to the matters to be resolved; promises not to use threats of litigation to force or coerce a particular outcome; to negotiate in good faith; and to take a thoughtful and constructive approach on all unresolved questions in the interest of reaching agreements. While collaborative lawyers certainly continue to represent clients in accordance with appropriate ethical standards, this “redefinition” of the nature of “legal advocacy” offers a refreshing alternative for lawyers seeking to align their professional identity and practices with their highest personal values.

The Collaborative Team & Structure of the Process

The interdisciplinary collaborative team typically includes mental health professionals and financial professionals, all of whom have mediation training[xvi].  The process is flexibly designed usually to include group meetings with all professionals and clients as well as separate meetings among the professionals. Clients in conflict often encounter seemingly insurmountable obstacles and in such situations, Collaborative Professionals utilize their best conflict resolution skills and training to help clients address and resolve the issues in dispute. Before each meeting, the collaborative team engages in pre-briefing to identify potential sources of conflict and to create an agenda and plan for constructively approaching difficult issues.  The professionals also meet after each group meeting for important discussion and de-briefing with each other. Throughout this process, a significant degree of trust and civility is required to move beyond impasse.

In family matters, the insight, training, and skills of mental health professionals are indispensable to assist with issues involving children, emotional trauma, or other psychological dynamics. Likewise, the financial neutral will gather documents and discovery information in one place resulting in a significant savings of professional fees that would otherwise be spent in the discovery process. After the financial professional gathers and organizes financial data, informational reports are presented to everyone from a neutral perspective. When negotiations begin based on this neutrally constructed presentation of information and facts, there is less likelihood that clients will become entrenched at the outset in separate, competitive positions.[xvii] The collaborative team is most effective when each member of the team respects and acknowledges each other as equals. No Collaborative Professional is superior to any other and no individual is more “in control” of the process than any other. Collaborative Professionals unanimously agree that the team is indispensable to the collaborative process and when obstacles are encountered, they trust the process and the other members of the team.  These important aspects of the interdisciplinary collaborative team process are quite different from the dominant role lawyers enjoy when practicing within the litigation paradigm. Thus, experienced trial lawyers sometimes find it difficult to embrace fully all aspects of the collaborative paradigm shift.  This presents less of an issue for students because they have yet to develop such litigation-oriented habits and expectations.

Looking Forward

Compared with adjudicative processes which focus backward upon proof of historic facts and persuasion of the decision-maker, consensual processes focus forward on constructive conflict resolution. Each generation of new lawyers is encouraged to explore the ever-changing landscape of alternatives for the resolution of disputes and to fulfill the following hundred year-old (and timeless) pledge of Justice Holmes which causes me to return to the classroom each year:  “Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it.[xviii]

[i] At the outset, distinguishing between the terms human “conflict” and legal “dispute” is important for the study of Collaborative Practice in the context of an ADR course. See generally, Bernard Mayer, The Dynamics Of Conflict Resolution: A Practitioner’s Guide, Jossey-Bass, Inc. pp. 4-5 (2000); Kenneth Cloke, Mediating Dangerously: The Fontiers Of Conflict Resolution, Jossey-Bass, Inc. (2001); Dispute Resolution And  Lawyers, A Contemporary Approach, 6th ed., Riskin, Guthrie, Reuben, Robbennholt, Welsh, Hinshaw, West Academic, pp. 2-6 (2019).

[ii] The term “Collaborative Law” reflects the early adoption of the collaborative process among lawyers while the term “Collaborative Practice” denotes the inclusion of practitioners from multiple disciplines, including collaboratively trained mental health professionals and financial professionals (“collaborative practitioners.”)

[iii] Formal training for interdisciplinary Collaborative Practice typically involves trainers from multiple disciplines. For this reason, I invite collaborative practitioner/colleagues from various professional disciplines to join classes focused on collaborative practice.

[iv] The study of “negotiation” is encompassed within all processes on the spectrum.

[v] See Robert H. Mnookin and Lewis Kornhauser, Bargaining In The Shadow Of The Law, 88 Yale L.J. 950 (1979).

[vi] “The prophesies of what the courts will do in fact…are what I mean by the law.” Oliver Wendell Holmes, The Path Of The Law, 10 Harv. L. Rev. 457, 461 (1897) in Collected Legal Papers, The Lawbook Exchange, Ltd., (2006).

[vii] IACP Minimum Standards For Collaborative Professionals, Sec. 2.3 (Rev. 2014).

[viii] Model Standards of Conduct For Mediators, Standard One. (“A mediator shall conduct the mediation based on the principle of party self-determination.”)

[ix] Many scholars and commentators have attempted to describe, categorize and explain various Mediation theories and practices of Mediators and participants in Mediation. See e.g., Leonard Riskin, Understanding Mediators’ Orientations, Strategies, And Techniques: A Grid For The Perplexed, 1 Harv. Neg. L. Rev. 7 (1996); Leonard Riskin, Replacing the Mediator Orientation Grids, Again” The New New Grid System, 23 Alternatives to High Cost Litig., 127 (2005); Joan B. Kelly, A Decade of Divorce Mediation Research, 34 Fam & Conciliation CT. Rev. 373 (1996).  A detailed exploration of Mediation is beyond the scope of this article.

[x] Unlike the contractual commitment of collaborative lawyers, attorneys representing clients in mediation do not necessarily make a deliberate, intentional commitment to facilitative negotiation.

[xi] As of the date of this article, the Uniform Collaborative Law Act has been passed in 23 states.

[xii] The IACP has adopted Standards And Ethics which includes “Minimum Standards For Collaborative Professionals.” See, https://www.collaborativepractice.com/.

[xiii] Pauline H. Tesler, “Collaborative Family Law,” Pepperdine Dispute Resolution Law Journal, Vol. 4, Issue 3, pp.2-3 (2004) (Discussing Collaborative Practice as a helping profession.)

[xiv] Cf. Marshall B. Rosenberg, Non Violent Communication, A Language Of Life, PuddleDancer Press, (2005) (Describing judgment as a form of violence.)

[xv] The Agreement also specifies the conditions under which a professional may resign or the Collaborative Process will terminate based on non-compliance with the IACP Standards and Ethics.

[xvi] The specific make-up of a team may vary depending upon the customs and practices within different a particular community. At the very least, a “collaborative matter” requires two collaborative lawyers.

[xvii] In many settlement processes, lawyers typically prepare comprehensive “claims for relief” or “proposed orders” prior to the beginning of the process, thus immersing everyone in positional negotiations before the negotiation process has begun.

[xviii] Holmes, Collected Legal Papers, p. 194 (1920.)

 

Mark Soboslai is a lawyer in Westport, Connecticut. He began working as a Mediator in 1980 while employed with the State of Connecticut Superior Court, Family Relations Division. Since 1989, he has been an Adjunct Professor of Law at Quinnipiac University School Of Law. After many years in private practice of Family Law and Mediation, his practice now focuses primarily upon Collaborative Practice and Mediation. He is a member of the IACP Education And Training Committee and Practice Group Development Committee; the American Bar Association Dispute Resolution/Collaborative Law Subcommittee; the Connecticut Bar Association Dispute Resolution Committee and Family Law Section. He is a member of the Connecticut Council For Non Adversarial Divorce and two Collaborative practice groups: Collaborative Divorce Professionals of Fairfield County and Collaborative Divorce CT. He is also a member of MyCollaborativeTeam (MCT).

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