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Collaborative Concepts

As the Collaborative Family Law model moves into its second decade of expansion, we can observe how far it has come and how far it has yet to go. The two most frequently expressed frustrations I hear while training around the country and across Canada are, the difficulty in getting cases, on the one hand, and the difficulty in keeping the case collaborative, on the other. As was true for mediation in the decades of the 80’s, the desire of the professionals is out pacing the consumer demand. While it is obvious that the legal and professional collaborative services have to precede the demand, that does little to lower the frustration level of professionals who have embraced the paradigm shift but who have no clients for whom they may deliver the benefits of this revolutionary legal model. However, as they said about the baseball diamond in the movie, Field of Dreams, “Build it, and they will come”.

Collaborative Family Law has the distinct advantage of emerging into changed world. Beginning with the Pound Commission in the late 70’s the legal profession has recognized the need to do a better job responding to client concerns. Mediation served as the ice breaking ship that has opened up the channel for client-oriented dispute resolution services. The collaborative model will become mainstream in a significantly shorter period of time than it has taken for mediation–which still is working towards universal acceptance. But as with mediation, it is critical to the success of the CFL movement that we professionals deliver on the express and implied promises we offer of a more meaningful process for divorcing clients. Every group of collaborative professionals has an extraordinary (and oft-ignored) opportunity to work on achieving the goal of acquiring more clients and keeping them in a CFL case, and it is an opportunity that does not require them to wait until the clients materialize.

Three conceptual frameworks for examining the development of the collaborative model are: issues relating to the skills required of the professional in the context of client need; issues relating to the relationship and dynamic between collaborative professionals; and, issues relating to the formation of a collaborative group or organization. It is this last category that holds the key to the objectives of obtaining clients and keeping them. The challenge comes from the fact that while organizational issues are perhaps the most important areas to develop for the success of a group, success requires commitment and coordination of a group of individual attorneys which is as challenging as herding cats. Nonetheless, organization structure can directly address the dual concerns of acquiring clients and keeping them in the process.

As any group is attempting to establish itself in its community, the organization can provide credibility and legitimacy to the movement that as individuals we lack. Association with local, regional or statewide bar associations have assisted numbers of emerging CFL organizations to move forward in establishing themselves in their various communities in a way that helps overcome client skepticism about this new approach. The combined financial commitment of individuals in organizational form creates opportunities for marketing through brochures, videotapes, websites and media advertising that would be prohibitive for individuals. What began as a grassroots movement, is now coalescing into a national/international movement with the evolution of the International Association of Collaborative Professionals. Further evidence of the value of organizational influence. The major impediment to client growth is consumer ignorance. Organizations have the greatest capacity to provide information and education about the benefits of the collaborative process.

In order to keep clients committed to the process, it is not enough for the professionals just to be committed to the process. They must have the skills and capabilities to respond to all the challenging dynamics the clients present. These skills are known and have been well developed in the parallel paradigm of facilitated dispute resolution–mediation. What too many groups overlook, is the opportunity for the development of these skills and capacities that exists within the membership of each group or organization. Consider the untapped resources that exist within any given group:

Vicarious case practice–Based on a commitment to meet and share, those attorneys who have collaborative cases could share the evolution and development of their collaborative processes with other members of the group who do not presently have collaborative cases. This allows vicarious participation and the development of shared understandings, protocols, and standards of practice within the group on an accelerated basis.

Program development–Every group will have members with varying levels of experience in interest-based negotiating and facilitated dispute resolution. There is no end to the need for training, if one aspires to reach the highest levels of skill. Drawing on the talent in an organization for presenting topics for discussion and role play dramatizations of challenging aspects of the process, will greatly accelerate the development of skills necessary to deliver a quality process for clients.

Mentoring–Perhaps mentoring is the most important function a group can establish. In this organizational context, mentoring identifies a program in which more experienced professionals perform the following: assisting those who are having their first experiences with the process and/or who are having difficulties in a case; provide third party mediation services in cases where clients and professionals are getting stuck or reaching impasse; and, most importantly, intervene where the attorneys are having difficulty establishing a collaborative relationship in a particular case or where one attorney perceives the other is not adhering to the principles and guidelines of the group.

We tend to get too close to the collaborative model too quickly. By focusing on the micro aspects of what we are doing, we miss the most important macro aspects. Consider the fact that as attorneys practicing in the adjudicatory model, we spend years learning the rules and procedures of that system which were created by the legislature and the decisions of appellate courts. The collaborative commitment to work outside the adjudicatory system will not succeed in a vacuum. There must be well developed applications to the principles that will provide clients with their best opportunity for success by providing the their attorneys and collaborative professionals with a core of uniform processes and protocols. These protocols need to enhance the ability of the professionals to skillfully deliver on the promise that Collaborative Law offers to clients.


Chip Rose

Chip Rose is highly experienced divorce mediator previously based in Santa Cruz, California and recently moved to Bend, Oregon. Chip founded The Mediation Center in Santa Cruz in 1980 and is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization. In a client-centered… MORE >

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