Thanks for your humble and insightful words, Roy!
Jacinta C. Gallant
www.jacintagallant.ca<http://www.jacintagallant.ca>
Lawyer and Mediator
89 Hillsborough Street
Charlottetown, PE C1A 4W5
Ph (902)367-3901
Fax (902)367-3989
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On Mar 31, 2019, at 11:15 AM,
roymartin@xxxxxxxxxxxxxxxxxxx<mailto:roymartin@xxxxxxxxxxxxxxxxxxx> [CollabLaw]
<CollabLaw@xxxxxxxxxxxxxxx<mailto:CollabLaw@xxxxxxxxxxxxxxx>> wrote:
Great conversation. This is an issue that comes up in so many forms. When it
comes to cases where the practitioners (or parties) don't want to sign out of
fear that the court won't be available, Gary has pretty much said it all.
I'm chiming in with another variation on the theme. I have two cases right now
with two different attorneys in my community that go like this: Both attorneys
have given up litigation. Both attorneys have been clear with their clients
that under no circumstance will they take the case to court. Each attorney
likes, admires and trusts the other. They work really well together. So what's
the problem?
A case can look, at least from the vantage point of the initial consultation,
rather easy. Perhaps these folks won't need the full collaborative process.
When we go collaborative there's all this overhead. The initial team meeting is
devoted to carefully parsing the PA to make sure both parties are fully on
board. We review high level goals, discuss allied professionals (sometimes
introducing a potential coach and maybe others), etc. In other words, the first
meeting is devoted to process itself. Then the focus typically shifts to
working with the allied professionals. We're so far off from even beginning to
think about settlement itself. Does this make sense when the parties seem
tantalizingly close to settlement?
In each of these cases, the attorneys had the sense that it might be enough to
just sit down and talk about settlement possibilities. The idea was we would
give one party a chance to lay out his/her thoughts and the other a chance to
respond. We explained to the clients that if they weren't able to agree we
would then move into a review of the PA and begin the collaborative process.
Both attorneys thought we could do so without missing a beat. Both attorneys
were at all times clear that it's not a collaborative case unless and until we
sign the PA.
If you can't tell from my tone, this is a cautionary tale. Neither case has
imploded. One looks on track to settle and the other may settle or may become
collaborative. I don't think either will move to litigation, though the second
is getting pushed in that direction because we don't have an adequate container
or enough commitment to process. But let's assume for now that both will
settle. I've come around to the conclusion that it was a mistake to not engage
the collaborative process right from the start. Here's why:
By not building the container first (which is essentially what the initial team
meeting is designed to do), the conversation has had a different tone. Not
threatening. Both parties in both cases have been clear that they don't want to
go to court. But uncontained. What comes to the fore for our clients is their
pain, their hurt, their fear, their frustration -- and there's no
recontextualization in light of their larger hopes, dreams and sense of
connection. The discussion of high level goals and the incisive questions that
get raised (which essentially ask people who they are and what they value most)
hasn't happened, so the tone of the discussion is different. The focus is
everything that hasn't worked. That alone makes for tough sledding.
If that wasn't enough, there's no coach, no child specialist and no financial
specialist (present or on the horizon) to begin holding and guiding the
conversation/process. It's just the four of us getting caught in minutia --
seen and unseen, spoken and largely unspoken -- and so in that sense too
there's no container to fall back on or lean into.
In case it's not clear, both cases didn't just settle and we didn't move
effortlessly into a review of the PA during that initial meeting. Both cases
bogged down in this middle place. We need not call it hell but the old Catholic
notion of purgatory is an apt metaphor. You know the kind of discussion I
reference. Slow, challenging, incremental progress is happening so neither side
wants to pull the plug. But the tone is negative and there's so much beneath
the surface not seeing the light of day which is driving everything. In a very
real sense we're like the handyman trying to fix the window when the wall is
out of kilter. No matter how right we get the window, it's in a wall that's
leaning and threatening to crumble. We may achieve settlement but have we truly
served these folks? They may be satisfied with the result but without
recognition of what might have been. Without an understanding of what was lost
because we didn't even try.
Even though both cases will probably settle, the quality of the settlement is
going to fall short of what might have been. In collaborative cases, not all
settlements are wonderful transformational experiences but they can be. And
even when they're not, we've at least done our best to get as close as
possible. In these two cases, we've not even tried and there's a very real
consequence. There's a grudging quality to the whole endeavor. There isn't the
care, kindness and generosity that so often opens within the collaborative
container as we keep refocusing our clients on the larger context and their
underlying connection.
Bottom line, Gary (Bob, Kevin and everyone else who chimed in) is (are)
right-on in terms of assessing why we can't do "small-c collaborative" in cases
that might otherwise go to litigation (and why notions of such a beast are
mythical).
The same is true of cases that are all but certain to not litigate. We need to
be super cautious about making the assessment that collaborative is overkill in
supposedly easy cases. This remains true even if both attorneys are skilled,
experienced and work well together. We need to be humble about assuming we can
assess what's needed, how things will unfold, and that we can go it without
this process that's been designed to contain, hold and even transform conflict.
Now that I think about it, there's a third recent case that falls into this
category. One I had with Kevin. It settled. Both parties seemed satisfied.
Kevin and I had never worked together before (as we're not in the same
community or practice group) but we easily navigated the one or two challenges
that arose. Just the same, we delivered a lesser product. In that case, it felt
more OK because the parties were really clear they wanted to cut to the chase
and the lesser result was a price they were willing to pay. They seemed quite
satisfied. But it's a slippery slope. Perhaps it was relative success in that
case that lead me to think these other two might be similar.
We face this question often and I don't think we can categorically or
dogmatically say that collaborative practice is always the best medicine. There
are times when it may be overkill. The problem is we aren't as prescient as we
may like to think. We can't know in advance. That's why we need to tread
carefully. That's the lesson these last few cases have brought home for me and
I'm disinclined to suggest to a colleague ever steering in this direction
again. Of course it's an ongoing question. Other cases will come along that
look tantalizingly easy at the outset. I'd love to hear the thoughts of others
on this aspect of the topic.
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