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The Creative Solution: Sibling Non-Rivalry

Either the Collaborative Law (CL) movement has already sprouted in your community or it will in the near future. The growth of this latest entry into the dispute resolution field demonstrates meaningful similarities to and differences from the emergence of the modern mediation movement beginning in the early 1970’s. In every sense, these two movements are siblings, evolving from a common gene pool.

The most recognizable similarity is the unabashed enthusiasm and constructive energy that its converts bring to the model. This is particularly true of the attorneys who, for a variety of reasons, are attracted to the CL approach. The wasteful and damaging aspects of litigation are not lost on most attorneys. Until now, however, the only viable alternative to being a litigator was to become a mediator. For many, the paradigm shift from adversarial advocate to facilitator was a leap that exceeded their desire or capability. Now, collaborative negotiating brings the concept of client-focused, interest-based, facilitative dispute resolution into the offices and conference rooms of lawyers everywhere in a manner that mediation did not. The same kind of energy and enthusiasm that accompanied the mediation boom of the 1980’s and 1990’s is characteristic of the converts to the field.

It remains to be seen whether the two models share another characteristic that has frustrated many mediators who dreamed of practices filled with client-empowering casework. That characteristic is the gap between the interest level of the professionals who invested significant time and energy into developing critical mediation skills and the demand (or lack thereof) by the consuming public, whose issues and conflicts are the sine qua non of a mediator’s practice. Probably the great majority of interested persons who have committed to learning the art of mediation have recognized the efficacy of keeping their day jobs. The simple truth is that you cannot have skilled professionals practicing in a field without client demand, and patience is required for the public to catch up to these kinds of new ideas in the field of dispute resolution.

There is another shared trait that has never been truly resolved in the mediation field but potentially could be eliminated in the collaborative field–the tension between legal and mental health professionals over the client turf. This has long been a source of tension and discomfort to mediators from both of these backgrounds. In family mediation, the divorce is ultimately a legal proceeding. The extent to which the tangible nature of the legal and financial issues elevates client fears about these aspects of divorce over the psychological, emotional, and relational aspects has always given attorney-mediators a decided advantage in acquiring clients who wish to mediate their divorce.

In the Collaborative Law field, the emergence of the multi-disciplinary model has highlighted the successful integration of the two professions in service of divorcing families. Critical to the success of this integration is the necessity for the two disciplines to join in the formation and growth of the local CL professional practice group and to share the training and development of the requisite skills. Added to the mix of professionals are accountants and financial planners who provide organization and analysis to any number of financial issues attendant to divorce. With the development of this multi-professional approach, Collaborative Law, as a process for facilitating a constructive divorce process, is bringing to bear the critical skills needed by clients for the division of the family unit—legal, psychological, and financial. In the current, formative stages of this movement, significant effort is being put into the collaborative education of attorneys and mental health professionals in recognizing the broadest range of client need and the ways in which these two disciplines in particular can work together to provide the highest level of skill and service. As with any professional service, the ultimate experience of any client will depend on the quality of the skills and services provided in his or her case. The design of the process will only go so far in facilitating the outcome.

The collaborative model is clearly in its infancy, dating back only to about 1993, to its origin in the mind of Stu Webb, the acknowledged founder of the model. In a similar stage of its development, the mediation movement manifested an initial tendency among some of its proponents to argue that there were right and wrong ways to construct a practice model in any given community. What has significantly benefited the development of the CL movement has been the cross-pollinating influence of mediators from both legal and mental health backgrounds who have been attracted to and involved with the creation of local practice groups across North America. Lessons learned from the trials and tribulations of the modern mediation movement are being incorporated into the growth and direction of the collaborative movement in an effort to avoid repeating mistakes made in the past.

There are significant and developing roles for mediators to play in this movement but only if they educate and engage themselves with similarly interested professionals. Some practitioners in the mediation community fear that the Collaborative Law movement will take away the non-adversarial conflict resolution business in their area. This fear will become a reality if mediators fail to participate and connect with this newest member of the dispute club. Collaborative Law stands on the shoulders of three decades of developed concepts and skills that is the field of mediation. The two models are siblings among the institutionalized methodologies for resolving disputes. Their common history is to be recognized, honored and celebrated.


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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