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.
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.”