Disenchanted with the adversarial system of litigating a divorce and the harm it causes all concerned, matrimonial attorney Stuart G. Webb conceived of the Collaborative Law process in 1990. Webb’s alternative process to the traditional court-based system drew on the best elements of legal practice and of mediation. He structured his legal paradigm to create a climate for settlement devising the “Collaborative Commitment,” where attorneys would necessarily commit to withdrawing from a case if court proceedings became likely or required. In fact, Collaborative attorneys make a binding commitment to clients at the outset that they will not represent them in the event they decide to go to court.
Collaborative Practice has evolved over the years, attributable at least in part to Stu Webb’s openness. According to Webb, a big advantage of Collaborative Law Practice is the fact that unlike the majority of mediations, each party is represented by an attorney in the room, one who is committed to working collaboratively. For one thing, parties benefit from their lawyers’ analyses, problem solving capabilities and ability to develop creative alternatives.
With the threat of going to court removed, lawyers and clients work collaboratively generating positive and creative energy and they are motivated to problem-solve to achieve settlement, similar to what happens in mediation. Practitioners are trained to encourage “out of the box” thinking to move beyond law centered outcomes, though for many, Collaborative Practice continues to be law-driven. Where review attorneys sometimes find fault with mediated agreements, a distinct benefit of Collaborative Law Practice is the continuity between settlement and processing the final dissolution.
Collaborative practitioners stress the benefits of a team approach that includes legal, mental health and financial professionals, yet curiously, mediators have been largely overlooked– perhaps because many Collaborative attorneys are themselves trained mediators. Mediation is, however, a distinct area of professional practice with its own body of knowledge, guiding principles, values and standards. While mediators may draw upon the knowledge and practices of other disciplines, they may not operate as practitioners of other professions.  It follows then that when practicing law, Collaborative or otherwise, attorneys may not operate in the capacity of a mediator. Collaborative lawyers may look at the overall picture of what is fair, but as attorneys, they are legally bound to advocate on behalf of their clients and are necessarily precluded by duty from maintaining an impartial stance. Working collaboratively should, therefore, not be mistaken for what can be accomplished by working with a neutral.
Skilled neutrals have a distinct and valuable role to play at the Collaborative table, particularly in complex or high-conflict cases. While Collaborative practitioners do at times call on neutrals to work with them on specific issues or to assist when the process has reached an impasse, integrating skilled mediators more routinely into the Collaborative process and acknowledging the distinctive benefits of working with a mediator can support the evolution of Collaborative Practice toward an increasingly effective, conscious and client-centered practice.
Client-Centered and Conscious Process
Certainly complex changes or conflicts benefit from consultation with, and assistance from experts if parties are to enjoy the benefit of substantially informed decision-making. Yet, when engaging experts, the clients’ own sense of what is best is at risk of being lost in the face of professional advice. In addition, the process may be enhanced when conducted by a neutral that coordinates the involvement and contribution of multiple experts. A client-centered process keeps the decisions about the process and its outcome in the hands of the parties. Guided by the principle of client self-determination, mediators are experienced in supporting clients in making their own fully informed and conscious choices.
A client-centered process increases the likelihood that when settlements are reached, they will serve the parties’ interests (rather than those of participating professionals, even if inadvertently) and more likely be sustained by them in the long run. A wholly client-centered process goes beyond simply creating out of court settlements; it empowers the parties to decide consciously whether or not and on what terms to settle. This results in mutually satisfying settlements whenever they are possible.
A conscious process invites attention to the ethical dimensions to which Collaborative professionals should be accountable. How is a good result defined? How are the ethics of each participating discipline influencing the process? What are the unspoken and often shifting power dynamics between the participating professionals? What prevents the Collaborative process from becoming an assortment of practices accomplished neither consistently nor well?
Mediators Add Value to the Collaborative Process
While various models of Collaborative Practice are developing around the country, legitimized models of interdisciplinary practice generally assume that Collaborative practitioners come from three streams of professions: legal, financial and mental health. Certainly these professionals are valuable resources for families in transition. Mediators, however, can add a unique element to the mix—even when the Collaborative attorneys are trained mediators.
When conflict occurs, as it likely does among the parties or any of the members of the collaborative team, it can impede the process. In many cases the conflict is manageable and issues are resolved as they arise. In some cases, however, a professional who is knowledgeable and experienced in handling conflict, who has no partiality or prejudice toward any of the participants and who is charged with attending to the whole process is a valuable asset to the team.
A skilled mediator may serve several functions:
Neutral: A neutral, having no decision-making authority, creates a safe environment of non-judgment and balanced regard for all participants where professionals and clients can address difficult and sensitive issues. Aligned with none of the participants, the mediator has the privilege to connect genuinely to all parties, helping them to see themselves in relation to a larger context. In this way, mediators support clients and professionals in identifying, articulating and addressing needs and interests in a collaborative manner.
Intentionally providing neutrality in addition to advocacy in the process provides the best framework for working through high conflict and complex cases. Clients engage advocates to ascertain and promote their needs, interests and perspectives. Even in the Collaborative process, clients count on their attorneys and their individual coaches (if they have them) to “be in their corner” supporting them as loyal, encouraging, sympathetic and experienced guides. If a client’s advocate expresses sympathy or understanding for the other client, this may feel threatening, and may not be perceived or received as intended. The neutral can provide reassurance for each and for all. While clients look to their experts for knowledge and direction, the mediator’s neutrality complements this individual support with genuine caring about and concern for all.
Benefit: A neutral strengthens the process for clients to work through difficult and sensitive legal, financial, emotional, and spiritual issues. One client in a Collaborative case spoke of the mediator as a “calm center” when things got heated.
Facilitator: Managing the dynamics of the interaction at the Collaborative table, the mediator as facilitator maximizes the effectiveness of the process. Process focused, the mediator observes and supports all participants increasing their effectiveness. With attention on the interaction and communications among all of the participants, the mediator helps parties change their interactions from negative and destructive to positive and constructive while exploring possibilities for resolution.
Benefit: A professional guiding the process can reduce anxiety of all participants and increase the ease and effectiveness of the process. In addition, the facilitator increases the “consciousness” of the process because attention is given not only to what decisions will be made, but also how decisions will be made. Both distributive and procedural justice can be accomplished.
Process Coach/Case Manager: The mediator as process coach or case manager helps to integrate the perspectives of the various disciplines and professionals. Because each discipline approaches its work from a set of assumptions dictated by its theoretical principles and paradigms, each individual paradigm provides focus that sometimes encroaches on others. Each point of view both creates and constricts the space from which solutions emerge.
A process coach encourages the dynamic shift from an either/or conflict dyad to a more constructive both/and whole. From a system’s perspective, focusing on specific elements of a system to the exclusion of all others misses the interconnections between system elements. The process coach directs our attention away from the individual parts and toward the relationships between the parts. Collaborative teams, like families, are complex systems of interconnected relationships that influence each other. Rather than asking which professional discipline or disciplines are best suited to help divorcing clients, a systems approach might ask what will contribute to the systems’ sustainability (both the family system and the collaborative team) while acknowledging that the form of the system may necessarily change.
Benefit: The process coach helps to integrate the information the system is receiving and to adapt the process to meet the needs of all participants.
Coach to all participants: When changes are major or conflict is high, negotiations take on an increased seriousness as the consequences become apparent and more emotional responses emerge. The mediator senses how to manage the conflict and contributes to the change process by helping all participants consider their attitudes and beliefs. In the role of coach to each and to all, the mediator supports all parties in increasing their understanding of their own needs and being alive to the needs of others. Attentive to all parties’ needs, the mediator helps manage and assist with conflict between participants and acts as adhesive to help safely contain the process.
Benefit: As coach, the mediator manages conflict and the emotions of all the participants so they can be creatively channeled rather than destructive. During collaborative meetings and in between, the mediator brings an invaluable perspective and fluidity to an often constrained and chaotic situation.
Translator: In the role of translator, the mediator helps participants understand and articulate their needs in a way that invites responsiveness from others. Language that attributes responsibility to another and discourages self-responsibility skews perspective and can cause a conflict to take on a life of its own. The mediator supports the parties and the process, encouraging constructive communication and resolution of conflict between any and all of the parties, modeling ways in which future differences can be handled.
Benefit: The mediator supports effective communication between all parties and manages conflict that results from unclear or flawed communication. In summation, including a mediator in Collaborative Practice benefits the process and all of the participants. A Collaborative model that incorporates both advocacy and neutrality enables the parties to be better informed, experience themselves as more competent, and have better control of what is going on thus increasing the quality of the result.
Including a neutral creates a process that transcends the either/or polarity. Building both expertise and client self-determination into the process supports clients and eliminates the risk of experts inhibiting client self-determination. Incorporating neutrality in addition to advocacy ensures that full attention will be paid to process as well as substantive issues. This provides participants the safest environment for working through difficult decisions.
The support of a skilled mediator can ensure that the Collaborative process remains client-centered as professionals empower the parties to make the best decisions they are able to make for themselves.
1 2004 proposed policy statement of the Association for Conflict Resolution on the Authorized Practice of Mediation: When acting in the “capacity of mediator, practitioners should not engage in the practice of law, whether or not they are lawyers. Nor should mediators, when mediating, act in the capacity of any other profession.”
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