I had my first Collaborative Law training in 2003, and my first collaborative case a few years after that. Like most Collaborative Law practitioners, I have completed many more trainings to enhance my skills. The dozens of Collaborative divorce cases I have since handled have provided additional experience and training.
I decided to get Collaborative Law training even though I was a highly skilled divorce lawyer and successfully settled probably more than 95% of my cases. However, my earlier legal education and years of experience did not provide me with either an understanding of Collaborative law, or the skills necessary to practice in the field of Collaborative divorce. The approach and skill set necessary to understand and practice Collaborative Law is that different.
As a lawyer whose full-time career now focuses exclusively on non-adversarial dispute resolution (primarily Collaborative divorce), it is often interesting to hear attorneys without training and experience in Collaborative Law try to describe its basics. Many, probably most, lack more than a superficial understanding of the Collaborative process. While they may not have sought out the necessary education to get a good understanding of Collaborative Law, it also appears that Collaborative divorce practitioners can do better at educating our colleagues.
One of the misunderstandings stems from an overtly different measure of success in Collaborative divorce cases. That different measure of success requires a different approach. In an adversarial representation, the measure of success is to get as much as possible for one’s own client as ethical boundaries will allow. However, in a Collaborative divorce, the measure of success is achieving a resolution that is durable (or at least as durable as the circumstances allow).
Achieving a durable resolution instead of a temporary cease-fire requires that both parties not only accept the settlement at the time it is made, but also continue to accept the settlement long thereafter. Achieving that decree of durability requires a different way of negotiating. Those skills come only after substantial specialized training and experience. And those skills can only be effectively applied within a process that is designed for them.
A durable resolution is in everyone’s best interest because it reduces the likelihood for the need for future legal services and leaves parties better equipped for their futures. To achieve the degree of ownership necessary for a truly durable and long-term solution, everyone’s priorities and goals need to be openly yet safely be considered and discussed together.
Because threats and coercion are not conducive to an open and safe discussion and consideration of the issues (even when not overt), a Collaborative divorce lawyer will not make arguments for you in the traditional manner while advocating for you. The advocacy looks very different, and often consists of asking important questions, educating you and your spouse, and facilitating a difficult conversation, rather than making arguments or telling you what you should do. Instead of attempting to make arguments to “win” at the expense of one party, the lawyers help both parties identify and address their most important priorities and goals, and help them fashion an outcome that is in alignment with those priorities and goals. Unlike the adversarial method of negotiation, which can easily leave one or both parties with resentments that cause agreements to unravel, a durable agreement achieved through the Collaborative divorce process does not contain the seeds of its own undoing.
Collaborative Law does not sidestep known issues or disputes. When issues and disputes are not addressed, they also are generally not resolved, which undercuts the durability of the agreement. Hence, a key skill of Collaborative Law practitioners is to identify potential disputes and issues, and raise them in a way so they can be productively addressed. To work effectively in this model, lawyers need to learn how to deploy interventions that allow the parties to productively discuss the issues that cause conflict.
Attorneys seeking to practice Collaborative Law therefore need to learn the necessary protocols and skills to effectively participate in the Collaborative Law process, and productively facilitate difficult conversations. The required skills are in addition to solid skills and knowledge of substantive and procedural law; similarly, the additional skills do not replace skills and knowledge of substantive and procedural law. Both are required for competence.
At a minimum, attorneys should have specialized training in the Collaborative
process and facilitative mediation techniques. While basic training is essential, new Collaborative lawyers also need experience and advanced training to become proficient. The skill level required to competently practice Collaborative Law is high, and differs significantly from what has traditionally been taught in law schools or can be acquired through conventional practice.