Families don’t belong in the courtroom! How can it be that one buys a license to create a family but must sue one’s spouse to restructure one?
Because the collaborative process requires attorneys to focus on the interests and goals of their clients, rather than on their positions, attorneys must make a paradigm shift from how they would typically think and act as adversarial trial counsel.
Their clients pledge to be transparent, so counsel can’t play the “hide the discovery” games in which trial attorneys often engage. With a single specialist for any particular issue, “the battle of the experts” no longer has a role. And the clients actually speak to each other, making it impossible for any one lawyer to “stir the pot.”
Rather than working to destroy the “opposing party,” the goal becomes to work as a team to satisfy the most important interests of both clients.
This shift challenges a seasoned litigator who steps into the role of a collaborative team member.
Litigated family law cases are treated like other civil cases, without considering that the two spouses will need to maintain a working relationship with each other after the divorce. The adversarial court system extinguishes any opportunity for the goodwill and cooperation necessary in co-parenting relationships.
Collaborative practice replaces the evidence and procedural rules with protocols. The two individuals have a say in the process because it is their process. The attorney must be comfortable with relinquishing that control to the client. The lawyer helps her client identify and articulate her interests, brainstorm options to meet those interests, evaluate those options, and focus on the probable risks and rewards.
Collaborative professionals belong to practice groups that meet regularly to educate and confer, and often work together on collaborative teams. They are friends, which makes it easier for the team to negotiate a positive resolution. They meet before and after full team conferences to discuss the best way to keep the clients moving forward. Their energy focuses on being positive and efficient, rather than on being destructive and damaging.
Because collaborative lawyers are required to withdraw if their clients choose to litigate, they concentrate on successfully resolving the case.
Working together, they encourage their clients to remain open-minded and creative.
During team meetings, an attorney may speak directly with the person who is not her client. Rather than acting oppositionally, she will try to put the other side at ease by hearing his viewpoints and empathizing with his perspectives.
While the team may discuss “the law” and what could happen if a client throws in the towel and goes to court, that is just one factor that the clients evaluate when negotiating. The attorneys try to direct them about the best choices for their families, regardless of “the law,” assuming that the lawyers can even say what that is, and what a judge would rule.
Although adjusting to this paradigm shift may be uncomfortable at first, collaborative practice offers a far more rewarding and positive process.
And it is so much more satisfying when you go home at night, knowing that you’ve created kindness and engendered goodwill for your clients instead of inflicting pain and destroying any hope of a relationship going forward.
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About this week’s author Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.