Written by My Collaborative Team member, Mark Soboslai, JD

Reflection, self-examination, internal self-regulation and equanimity are some of the qualities of the best mediators and collaborative professionals. When faced with highly emotional clients immersed in conflict, it can certainly be difficult to maintain these qualities. Every act of “practice,” whether it is collaborative “practice,” mediation “practice,” or any other kind of practice (shooting baskets, playing piano, ballet dancing, you name it…) involves potential failure. As we practice, we strive to acquire and improve the skills necessary to become excellent in any activity that is important to us. Yet, we sometimes fall short of those ideals.

The collaborative lawyer who is retained to represent one, single, separate client by definition is “aligned” with that client. As members of a collaborative team, the lawyers are faced with challenges that the “neutral” collaborative professionals do not encounter because of the lawyer’s alignment with each separate client. One source of difficulty for the collaborative lawyer involves defining or re-defining the meaning of advocacy. Lawyers are trained to represent clients in the traditional legal/courtroom environment. The central task of advocacy in that environment is to persuade and to convince the judge to issue a decision that is favorable to one “side.” An inherent element of this task involves first formulating a clear and concise position. Every trial involves assembling the evidence necessary to cause the court first to find the desired facts (this is the “fact-finding” or “truth-seeking” function of the court.) This necessarily involves diminishing or devaluing the other party’s evidence through strategies and tactics such as cross-examination. (Trial lawyers talk about “destroying” the credibility or believability of the adverse party or witnesses.) The advocate also seeks to persuade or convince the court (speaking “for” the client) using arguments that are sufficiently powerful and convincing for the court to render a judgment in favor or one side and against the other. This is the meaning of advocacy in the judgment paradigm.

When collaborative professionals speak of the “paradigm shift,” it seems to be taken for granted that lawyers who complete the “introductory” collaborative training will perhaps automatically be capable of representing clients effectively within the collaborative paradigm. Yet, this expectation may be naïve particularly for those lawyers with years of training and experience representing and advocating for clients in the adversarial judgment paradigm. In some ways, the task of making the shift from one paradigm to another comes back to the idea of alignment. For the collaborative lawyer to be effective, it becomes necessary to redefine the meaning of advocacy when aligned with one client in the collaborative process. Based on what has been said so far, the following are some of the ingredients necessary for a lawyer to make the all-important paradigm shift necessary to be an effective member of a collaborative team.

First, as provided in the IACP Standards and Ethics, collaborative lawyers must shift away from positional bargaining. While it is critically necessary in the courtroom to formulate a strong position as noted above, it is counterproductive to form and hold onto positions in the collaborative process. Similarly, a collaborative lawyer will be more effective shifting away from adherence to any particular results. Trial lawyers evaluate “success” or “victory” based on the results obtained after trial. In the collaborative process, the results are those that the clients define as most suited to their interests, needs, values and goals. Identifying these ingredients of “success” in the collaborative process helps to redefine the meaning of advocacy in the collaborative process.

As noted above, because the lawyer is aligned with a single client and yet the collaborative lawyer is simultaneously expected to avoid arguing from positions or focusing upon particular results for that client, helping lawyers make the paradigm shift involves offering a meaningful substitute for the traditional notions of adversarial advocacy. In other words, it is not enough to “preach about” all the things lawyers should avoid. If we truly want lawyers to be effective and productive members of our collaborative teams, there must be sufficiently meaningful and satisfying substitute practices for the collaborative lawyer to embrace and employ. One such substitute is to replace alignment with dialogue.

If a lawyer fully embraces the importance and value of dialogue in the collaborative process, the shift away from the judgment paradigm into the collaborative paradigm is much more likely to occur. Dialogue involves speaking “with” another person. The collaborative lawyer shifts away from speaking “for” the client toward assisting the clients to speak “with” each other. If a lawyer undertakes to acquire and develop the skills associated with facilitating meaningful dialogue, the door will then open to a lifetime of collaborative practice. Just as we don’t hit every shot when practicing on the basketball court and we don’t hit every correct note when practicing a musical instrument, we stick with the practice because we value the activity.

Collaborative professionals do this work because it is important and valuable for the families we serve. It is also important and valuable for us. We will undoubtedly make mistakes and missteps as we join with our clients and other collaborative professionals in interdisciplinary practice teams. But we need to be kind to ourselves. This is difficult work. If every collaborative professional is dedicated to being a better lawyer, mental health professional, financial professional or teammate, the others on the team will then be able to trust that person. If that professional is a collaborative lawyer, it is particularly important to demonstrate that this intent and motivation is paramount. That will help the other team members to have the trust and confidence that the old adversarial courtroom advocacy habits and litigation techniques will not suddenly appear and complicate the process.

The first step toward creating a reputation as a trusted collaborative professional is to shift from alignment to dialogue.