The Adversary System
Law school training and the real world attorney work experience combine in a well established and powerful institutionalization of the adversarial-representative model of conflict resolution. While it is not the only model for negotiating and resolving issues, it is the one which becomes ingrained in anyone who works in a litigation system. Most attorneys who regularly handle litigation work, fantasized, in the days before being admitted to practice, about standing at the bar of justice making an impassioned and eloquent argument which wins the case or surgically dissecting a hostile witness with a brilliant cross-examination. The daily grist of the litigator’s mill, however, is the stress and frustration of trying to achieve the client’s objectives against the impediments and opposition of the parties on the other side of the case.
The costs of this process are usually observed as being both outrageously high and inevitable. Both are true statements about the adversarial model. What is also true is that this model is ill-suited for the purposes of resolving family law conflicts. Rather than assuming the conflict must adapt to the traditional adversarial litigation model, the collaborative approach is based on the idea that the process should adapt to the actual needs of the parties in conflict in reaching agreement. In the traditional competitive approach, where the parties objectives or strategies collide, it is assumed that the only way to move past, through, around or over the opposition, is to employ the power of the law-based procedures to make something happen. In the face of opposition from the other side, a lawyer looks to the power of the process and often overlooks the reverberating impact that process will have on the daily lives of the clients and their children. Furthermore, this power-based, competitive approach nurtures continued resistance as the participants have little or no reason to view the other side as anything but a threat and something to fear.
The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Initially, those needs fall into two categories: process needs and outcome needs. The process needs are determined by accepting the party in the emotional state in which they enter the process. That person may be experiencing a wide range of emotions such as, anger, hurt, distrust, bitterness, guilt and grief. These emotions may come with a wide range of personality characteristics such as, intelligent, unsophisticated, analytical, visual, needy or co-dependent. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the party which will allow that person to feel the issues are resolved. As we will see, these outcome needs are developed by analyzing the interests of the party and moving beyond the stated positions which have sustained the conflict.
The core of the collaborative process is to facilitate the making of agreements. To be effective in this role, it is necessary to make a mental shift in the mindset that one brings to viewing both the nature of the conflict and the elements inherent in the personalities, characteristics and resources of the parties.
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