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CHAPTER ONE
A Paradigm Change from an Adversarial to a Collaborative Perspective
In the last quarter century, the process of resolving family law disputes has, both literally and metaphorically, moved from confrontation toward collaboration and from the courtroom to the conference room.
ANDREW SCHEPARD AND PETER SALEM (2006)
When I became a mediator in 1979 and began speaking to lawyer groups, I heard a frequent resistant refrain: âI mediate every day, and so do most of the lawyers I settle cases with. Why would we need a mediator?â Most of my law clients and referral sources did not know what mediation was, and some clients confused the process with âmedicationâ or âmeditation.â
We have come a long way in the past three decades. Today mediation is embraced and encouraged, understood (at least in many circumstances), and valued for its contribution as a legitimate process in the world of dispute resolution. The same is true for collaborative divorce. Regardless of your profession, you must understand and be able to articulate the many differences between the adversarial approach and collaborative divorce to truly help your clients make informed decisions and to effectively market your practice.
THE DEVELOPMENT OF A COLLABORATIVE APPROACH
In her monumental book, The New Lawyer (2008b), Julie Macfarlane identifies the three professional beliefs that are the bedrock of traditional lawyersâ thinking: a rights-based orientation, a confidence that courts will produce the best justice for clients, and a mind-set that lawyers should be in charge. Macfarlane finds that these beliefs result in a system that is not only inefficient but creates a disempowerment of clients in favor of their lawyers:
A rights-based model of dispute resolution assumes that lawyers acquire some form of ownershipânot simply stewardshipâof their clientâs conflicts as a consequence of their professional expertise. . . . Client goals are reframed where necessary to fit a theory of rights. . . . This assumption of ownership by lawyers is both practical and emotional. Only certain types of client input, which are deemed to be relevant to building a strong legal argument, are sought [pp. 61-62].
Macfarlane concludes that increasingly the new lawyer is finding herself negotiating a partnership instead of being able to simply assume the traditional lawyer-in-charge arrangement.
This lawyer-client partnership is truly a paradigm shift and it has led to the development and acceptance of collaborative practice. Nancy Cameron, a Canadian Collaborative Divorce pioneer and 2009 president of the International Academy of Collaborative Professionals, lays out this challenge of moving from the traditional adversarial approach to a lawyer-client partnership that benefits families, professionals, and the legal system:
The growth of collaborative practice is developing simultaneously from the need of the public to be better served in the resolution of domestic issues and the need of lawyers to operate in a professional milieu that is less at odds with their personal ethic . . . Lawyers in collaborative practice have to be intimately aware of their own individual adversarial behavior and our professional adversarial norm [Cameron, 2004, pp. 88-89].
The legal profession now actively supports this paradigm shift and acknowledges and promotes it. The American Bar Association (ABA), the worldâs largest professional organization, has been a leader in developing models such as unbundled legal services that are based on a revolution of client-centered decision making and power sharing between lawyer and client. (Chapter Three provides an expanded discussion on unbundling, which is incorporated in collaborative practice.)
The ABA Family Law Section led this paradigm shift by publishing early articles and books on unbundling and mediation, including my 1997 book, The Complete Guide to Mediation, on the new role of the family lawyer in these emerging areas. In 2001, the ABA published Pauline Teslerâs important book on collaborative law, Collaborative Law. (The second edition was published in 2008.) In 1997 in Los Angeles and in 2008 in Chicago, the ABA Family Law Section and the American Psychological Association partnered to sponsor international conferences featuring interdisciplinary presentations centered on this new paradigm.
The ABA Dispute Resolution Section has institutionalized this paradigm shift through the establishment in 2002 of its prestigious Lawyer as Problem Solver Award, which recognizes individuals and organizations who use their legal skills in creative and often nontraditional ways to solve problems for their clients and within their communities. The first winners of this prestigious award were Stu Webb and Pauline H. Tesler, pioneers of the collaborative law movement. Both the establishment of the award and the ABAâs recognition of Webb and Tesler demonstrate that the paradigm shift is being recognized and celebrated in the mainstream of the legal profession. (In subsequent years, collaborative lawyers David Hoffman and I were given this ABA award.)
The Association for Conflict Resolution (ACR) is the largest independent dispute resolution provider organization. Although it is essentially an organization for neutral mediators and other peacemakers in both the public and private sectors, in 2008 it established a task force to study ways of support and partnership with the collaborative practice movement. And the International Academy of Collaborative Professionals has appointed an official liaison to the ACR Peacemaker Museum Taskforce.
Collaborative law is now being taught in a growing number of law schools, and interdisciplinary initiatives embrace the new paradigm. A new theoretical approach to the widening practice of law that incorporates the paradigm shift is therapeutic jurisprudence, and a key book is inspiring both scholars and practitioners: Practicing Therapeutic Jurisprudence: Law as a Helping Profession (2000), edited by Dennis Stolle, David Wexler, and Bruce Winick.
The California Western School of Law has established an entire course of study based on this new paradigm. Its Center for Creative Problem Solving features a program dedicated to the prevention of conflict and legal disputes as an essential role of the lawyer based on the legendary work of Louis M. Brown (1909-1996).
The legal world has so been influenced by this paradigm shift that there is now a vibrant organization, the International Alliance of Holistic Lawyers, that envisions a âworld where lawyers are valued as healers, helpers, counselors, problem solvers, and peacemakers. Conflicts are seen as opportunities for growth. Lawyers model balanced lives and are respected for their contributions to the greater goodâ (www.iahl.org). For nearly three decades, the Association of Family and Conciliation Courts and its prestigious journal, Family Court Review, has endorsed an interdisciplinary approach to this paradigm shift. Perhaps its most far-reaching contribution has been the Family Law Educational Reform (FLER) Project, which is working to change the traditional law school curriculum away from the adversarial model into a model that reflects better ways to serve families. The FLER report also incorporates a key understanding of both the changes in the family structure and the changes in the courthouse. In addition to the traditional nuclear family, we now serve families of single parents, blended families with stepchildren and half-siblings, same-sex families, technologically produced families, unmarried families, interracial families, and families of immigrants, octogenarians, and teenagers. The one-size-fits-all court system is not designed for the flexible and creative processes that these new families require. Collaborative divorce offers adults and children of these newer family structures a safe and adaptable forum that is not handcuffed by laws and procedures designed for the traditional family.
The traditional courtroom-dominated court system is now giving way to more unified family courts that âgroup a range of issuesâfrom divorce and custody to juvenile crime to child supportâunder one roof with a single judge deciding all legal issues relating to a single family. Many jurisdictions have created specialized courts for domestic violence, drug abuse, and permanency planningâ (Schepard, 2006, p. 516). Many courts now have in-house clinics, court facilitators, and mandatory mediation programs.
AN INTERDISCIPLINARY APPROACH
Todayâs family lawyers work daily with professionals with different training and approaches to clients: social workers, psychologists, police officers, teachers, and many others.
As professionals, we must learn some of the theories and assumptions that other disciplines use, as well as how to share control and collaborate for shared client services. Lawyers are students of mental health instruction in concepts such as parental alienation syndrome, borderline personality disorders, and the needs of children of divorce for frequent contact with noncustodial parents. Therapists and financial professionals are well served to take courses in basic family law concepts so that they have a firm grasp on the issues that may or may not be relevant to their area of expertise. Therapists bring to the table a client treatment approach that factors in emotions and refines the skills of active listening and reframing that demonstrate empathy and respect. Lawyers and financial professionals find their own skills enhanced as they adopt some of these techniques from the mental health field.
Clients Are Responsible for Their Own Agreements
When clients are empowered to be active participants and ultimate decision makers in their divorce, set out these basic expectations:
⢠Clients must learn about their role in the collaborative divorce process: the basic goals of the process, the stages, which professionals will be involved, and how the client can maximize progress and satisfaction.
Conduct a Family Law Reform Impact Test on Your Practice
Conduct a Family Law Educational Reform (FLER) impact test for your own practice. Go through the report and assess how your practice incorporates the specific reforms outlined in FLER. Develop an extensive interdisciplinary referral list that you share with your clients. Prepare client handouts to explain changes in the local court that support collaborative practice. Train associates and staff in the trends captured by the FLER report. Market your cutting-edge practice innovations as being consistent with the paradigm shift. Explore these and other changes to update your practice.
UNDERSTANDING THE PARADIGM SHIFT
Collaborative divorce has become a major area of practice that incorporates the new paradigm and translates it from conceptual theory to practice. The key is for lawyers to unlearn many of the old ways, try on new thought patterns and perspectives, and learn new skills. Lawyers are not the only players in the divorce process who need to understand this shift. Mental health professionals (MHPs) and financial professionals (FPs), judges, court staffs, and the parties themselves have all been raised on the adversarial system and must unlearn it.
In her book Collaborative Law (2008), Pauline H. Tesler eloquently explains the paradigm shift that accelerates this unlearning, or retooling, of the traditional approach:
The paradigm shift refers to the alteration in consciousness whereby lawyers retool themselves from the adversarial to collaborative lawyers. The paradigm first requires the lawyer to become aware of unconscious adversarial habits of speech as well as automatic adversarial thought-forms, reactions, and behaviors. The second step of the paradigm shift is to adopt the beginnerâs mind, learning new ways of thinking, speaking, and behaving as a collaborative lawyer [pp. 79-80].
Tesler sets out four stages for lawyers who are making the paradigm shift:
Stage 1: Retooling the lawyer from gladiator to peacemaker, changing the thinking about the lawyerâs role, and learning to apply perspectives and skills from other disciplines
Stage 2: Retooling the lawyer-client relationship to help the client improve behavior toward the other spouse and take responsibility for achieving a better divorce
Stage 3: Retooling how to think about and communicate with the other party and professionals and use good-faith, interest-based negotiation
Stage 4: Retooling the negotiation process to learn how to manage the process through adherence to structure (premeetings, agendas, and caucuses, for example) and how to implement conflict resolution strategies
The law office is still the gateway for most client decisions for divorce with respect to what to do and how to do it. Therefore, although this book is equally directed to attorneys and other professionals who are interested in working in collaborative divorce, many of the initial innovations have arisen as attorneys have worked toward the new model.
If you are not a lawyer, understanding this paradigm shift and effectively participating in collaborative divorce requires understanding how the agreement-making process has been previously shaped by the traditional adversarial process and how evolving lawyer culture and thinking are creating this paradigm shift. Even when clients start with MHPs or FPs, they generally come into contact with family lawyers at some point in the process.
As you begin to consider this new approach, think about the collaborative method of approaching and resolving disputes and how it attempts to help both clients and professionals unlearn the traditional adversary approach and adopt the new paradigm. Think about how it compares with what you learned about negotiation (if you have had formal training) and how you have experienced negotiation functioning in your personal life, the marketplace, or the legal arena. Whether you are an attorney or want to approach collaborative law from another discipline, as you review the components of the collaborative approach, consider how you think this approach resonates with your personality and your core values about how you want divorcing parties and their professionals to behave toward each other and work out the issues that affect them and their children.
The following perspectives of collaborative professionals are designed to jump-start your own introspection. As you read these descriptions, ask yourself where you fit in. How closely do these collaborative perspectives define and resemble your current way of professionalism, or how closely do they mirror your aspirational goals? If you find that you are uncomfortable with this approach, then perhaps collaborative practice is not the right path for you. If you are nodding in agreement, then you are clearly headed in the direction of the new paradigm.
Collaborative Professionals Treat the Negotiation Room as the Last Stop on the Dispute Resolution Highway
While most traditional lawyers truly prefer an imperfect settlement to perfect litigation, they still bargain in the shadow of the law. Threats of going to court and litigation action are integrally woven in the traditional approach even though over 95 percent of court actions eventually settle. This means that 5 percent of the cases determine the approach for the other 95 percent of divorcing families. The traditional view is that if the matter...
