The Creative Solution Table of Contents
Summary:
This chapter discusses the relationship between mediation and collaborative practice in family law. Rose, a highly experienced mediator, initially viewed collaborative practice with skepticism but came to see its value, highlighting the shared principles and potential for synergy between the two approaches. He emphasizes the client-centered nature of both methods and predicts that collaborative practice will ultimately benefit the field of mediation. Rose addresses concerns from mediators about the collaborative movement and stresses the common ground between the practices, ultimately advocating for a more unified approach to client-empowered conflict resolution. His personal experience transitioning between mediation and collaborative practice informs his analysis.
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My interest in the Collaborative Practice model began when I saw how the legal community was responding to Stu Webb’s model for facilitated representation. The legal profession consists of many types of professional services. To the extent that litigation represents society’s institutionalized dispute resolution system and that lawyers are trained to be the disputants’ advocates in that system, it has been a great disappointment for me that the legal profession has done so little with the potential that mediation holds as a dispute resolution process. “Mediation” has unquestionably been embraced by the courts and lawyers, but it has, at the same time, been “legalized,” by which I mean co-opted into a variation of the legal process. As Jay Folberg described in a keynote address to an AFM conference a number of years ago, it has become big business in a way that dwarfs its use in the family law field.
My disappointment about the interface between the legal profession and mediation is that mediation’s potential failed to ignite a spark that challenged lawyers to rethink the role they played in assisting clients in the challenges of their conflicts. Instead, mediation too often has become a law-centric “settlement conference” in which competitive negotiating remains the hallmark and client empowerment and participation is discouraged by the design of the system.
So when Stu came along with this idea of lawyers and clients making a contractual commitment not to use any form of litigation and to embrace interest-based negotiating in a collaborative structure, as many in our profession (mediators) have done, I stepped back, considered the new kid on the block, and thought it was an interesting, but cumbersome idea. I wasn’t drawn to it personally because I found the endless challenges found within mediation way too intriguing to go back into a form of representational work.
What caught my attention, however, was the magnetic pull this model had for lawyers in the family law field who had shown no interest in mediation. They were stimulated, challenged, intrigued and drawn to find out more about how to do this new style of legal work. Admittedly, the motives were mixed. Some simply wanted to get out of the stress of constant litigation and were looking for a way to avoid “burn-out”; others wanted to practice their professional skills in a way that became a positive force in adding value to the lives of their clients.
My initial interest was to support this shift by training lawyers in what mediators had learned for successfully engaging with relationship conflicts. Having spent enough years representing clients in the court-based system and half as many years learning how to mediate, I imagined what this model might look like and began talking with other interested persons about what its characteristics might be. Next, I found myself being asked to do a workshop for a group of attorneys who wanted to know more about it, and then one continually led to another. Early on, I shot my credibility in the foot by naively disclosing in my workshops that I did not plan to undertake a collaborative practice, because I enjoyed my mediation practice too much. Nevertheless, I was keenly interested in fanning the legal profession’s flickering flame of interest in the development of client-facilitated processes. This statement of intent was subsequently used by some to marginalize the workshops I was doing on the theory that I was only teaching mediation and that I could not possibly teach collaborative law if I was not practicing it.
Those professionals who came to the collaborative paradigm without any mediation experience seemed as if they had newly discovered the principled commitments of this bi-lateral process, with no awareness that anything like this had ever been done before. Moreover, much of the disconnect between the two fields derives from the fact that a number of the pioneers of the collaborative model did not come from the mediation community. It became clear to me that if I wanted to continue to contribute to the change that was taking place in the legal profession, I would have to roll up my sleeves and jump in. As I have subsequently acted as a collaborative representative for clients in four-way conferences, I have found the contrasts to my role as a mediator both interesting and challenging. That is a discussion that will have to wait for another column.
Regarding the “sibling rivalry” between mediation and collaborative practice, I predict that collaborative practice will be the best thing for the field of mediation since the formation of AFM. A parallel circumstance is when I had a conversation with the 2 owners of a small family run grocery store shortly after it was announced that a major chain store was moving into the shopping center being built around the corner. Offering my condolences to the owner, he surprised me when he said that he welcomed the competition from the big store. He said that he believed that it would create more business for each of them. I believe that will be the long-term effect of the expansion of client-centered services into the collaborative model.
I am mindful of the concerns of my fellow mediators about this new kid on the block. I am frustrated by the collaborative movement’s failure to recognize what it owes to the modern mediation field. I am saddened to hear from mediators who feel rebuffed in their overtures to engage with collaborative groups in their communities. I am impatient with the adolescent stage of the Collaborative Practice field. On the other hand, this may be a life lesson that comes with moving across developmental stages, and it is clear that there is so much in common between the two models and so many shared interests among their practitioners.
What is true about either form of practice is that we in the family field are dealing with the same clients, who have the same set of issues, and the same set of dynamics. The existence of the two models for facilitated services means that clients have more diverse and flexible responses available to them for dealing with the same basic set of needs. From the thousands of professionals—predominantly legal, but mental health and financial, as well—who are drawn to the collaborative model, the best in the field will look beyond the bilateral structure. They will be challenged by the opportunity to work directly with each client in a facilitating, non-representational mode, and, I believe, increasing numbers will expand their practices into working as mediators as well as collaborative practitioners. I am already seeing this happen as I connect with friends newly made from my workshops across the country and Canada. For those who are fulfilled working in the bi-lateral structure of collaborative practice, their indirect impact on mediation will be no less profound. That impact is the recognition of the principled commitments that mediation and collaborative practice share, and the seductive experience professionals in each field have when they encounter the magic of client-empowered, client-created
The Creative Solution Table of Contents
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