Over the past several weeks I have written blogs on the importance of the use of the mental health professional in Collaborative matters and the importance of the paradigm shift, or the mindset, needed in the Collaborative Process.  

David Miller has been involved with the collaborative practice movement since September 2006. He was one of the original eight attorneys in December 2006 who formed the Collaborative Law Association of Southwestern Pennsylvania. He also was responsible for forming the Collaborative Law Committee of the Pennsylvania Bar Association in late 2011 and was asked to chair the committee the first 2+ years. In 2013-2014, the committee drafted the Pennsylvania Collaborative Law Act which was eventually (after a lot of work) passed into law in June 2018.  Here are his thoughts:

You Must Use an MHP:

I agree with this post regarding use of an MHP but one thing is missing. What do you do when the clients absolutely refuse to hire an MHP? Some clients say under no circumstances are we hiring an MHP ever, period, end of story – do we send them off to court (or to another collaborative attorney willing to work without an MHP) or do we give in and take the case anyway? Personally, I don’t like it, but in those cases I have opted to still take the case collaborative since I feel parties need to avoid court in most cases and I cannot risk them going to court. I have had my share of “tough” collaborative cases in which you wonder whether the parties should have started down the collaborative road. However, all those “tough” cases eventually reached a settlement in less than a year, so I feel it was worth it. I know most of those cases would have taken 2-5 years to go through the court system and much more damage would have been done to the family. On a positive note, I recently heard an analogy that may be used to help parties rethink their concern with the cost of an MHP. If you are about to have major surgery and are concerned with the cost, would you opt to forgo anesthesia to make the surgery less expensive? Can’t wait to try that out the next time a prospective collaborative client complains about the cost of adding an MHP. 

David I would also suggest that in matters without an MHP that it is critical to hire an experienced financial neutral that is capable of facilitating the Process.

It’s A Mindset!:

I can’t believe the title of this article uses the word that has been in my head in recent weeks. It is as if you read my mind. I have always been concerned (from my initial training in 2006) with the use of the words “paradigm shift” to describe the change in how we think about resolving conflict. It just sounds too academic to me. I have come to the conclusion (only in recent weeks!) that we should be calling it a change in your “mindset.” I think most folks can relate to that better. Think about the mindset of a divorce litigation lawyer in an initial consultation. They are eliciting facts to support whatever theory they have in mind to present the client’s case in court. If some “bad stuff” comes out about the other spouse, they ask follow-up questions to build up the court case against the other spouse. When they then present the bad stuff to counsel for the other spouse in their effort to “fight” for their client, they are in essence burning an already damaged bridge to settlement. Compare that to the mindset of a collaborative lawyer in an initial consult. They are eliciting facts aimed at resolving the case. If some “bad stuff” comes out about the other spouse, they worry about the impact on resolution and explore with the client the options to get around the “bad stuff” in a way that satisfies the client without sabotaging a settlement. They are trying to save a bridge to settlement that the bad stuff endangers. So, instead of a paradigm shift, let’s start calling it a change in your mindset from your initial consult forward. Even the person on the street can understand what I am saying when I say we must change our “mindset” right from the start of an initial consultation.

Thanks David for your words of wisdom!