I, too, have been following this thread with interest.
We have a huge range of realities in how cases are presented and occur. In
the ideal situation, a Collaborative Case exactly fits the model - clients
hire two attorneys, and other professionals as needed, all of whom have been
trained in the collaborative model, and both understand and ascribe to its
principles and nuances. These cases will have a variety of outcomes - most
will
move through the process in the usual manner, and will resolve with no serious
or substantial difficulties. These cases both serve the clients, and provide
the professionals with critical and important experience in practicing true
collaborative law.
Another set of cases will enter the collaborative process, again with fully
trained professionals who again both understand and ascribe to the principles
and nuances, but will present challenges that may range from being
challenging to threatening the process itself. Reasons for this will vary, but
most
likely will reflect issues, characteristics and circumstances of the parties.
Some of these cases will fail, and will pass out of the collaborative model,
and become adversarial cases in the court, with new attorneys and
professionals.
Others of these challenging cases will survive the storms, and reach
conclusion as a successful collaborative case. These are the cases in which
the
professionals earn their wings. The experiences they provide are invaluable in
creating highly skilled professionals. They substantially deepen the
professional relationships - or at least have the capacity to do so. They
provide some
of the most gratifying feelings that we can experience in our professional
capacities. Calm seas never made a good sailor. Successfully navigating
through
a storm can, however.
A third category of cases include many of what I hear described in this post
- applying collaborative principles with non-trained attorneys or other
professionals, to cases that move through the process effectively and
successfully to a positive conclusion. These cases can be beneficial to the
parties, and
forge positive professional relationships.
Another category of cases would include those with some collaboratively
trained professionals, and other non-trained professionals, that don't make it
through the process. In these cases, however, in addition to including the
usual situations and circumstances of the parties, the failure may well also
include the lack of skill and expertise from not being trained
collaboratively,
and thereby could potentially be avoided. Looking back over the cases I've
handled since 1991 that have fallen out of collaborative, I am left with the
sad
realization that this has usually reflected the inability and training of
the professionals, rather than insurmountable client circumstances. As our
practice group becomes better trained and experienced, voila, we have greater
success.
The range of possibilities is further confounded by another reality - some
cases with fully trained collaborative professionals will fail precisely for
the limitations and inabilities of the fully trained professionals. After all,
becoming an effective collaborative professional not only requires training,
it also requires transformation, and, unfortunately, training itself can not
assure the transformation. For many attorneys with extensive trial skills,
it can be a huge leap to not fall back on the body of skills that have given
them a successful practice.
Especially with respect to this last category of cases, it may not be
unusual that a non-collaboratively trained attorney may be considerably more
effective than their fully collaboratively trained but untransformed
counterparts.
Years ago an attorney colleague opined that the successful settlement
resolution of a case depended upon whether the other attorney was a
'deal-maker'. He
recognized that some attorneys had the innate quality of keeping the options
open until a resolution could be found. I know that type of attorney, and
would always prefer working with such a person over having a fully trained but
untransformed collaborative attorney on the other side who does not support
the process.
None of this has anything to do with the bottom line issue of this thread,
however, which several others have recognized. When we undertake to work on a
case using collaborative principles with untrained professionals, we simply
must NEVER call what we are doing in that context as collaborative.
This would be an ideal situation to invoke the other concept that has been
bantered about in earlier posts - Cooperative Law.
Why not approach the other attorney with the idea of cooperating to use a
different set of skills in working with the case, and use all of our best
training to model the behaviors that lead to the successful conclusion of a
case.
At the conclusion of the case an excellent opportunity exists to invite the
attorney or other professionals to bring their considerable skills into the
collaborative fold, and become fully trained, a win-win.
We will have legitimate collaborative cases that will fail, and possibly
tarnish the image of collaborative law in the process. The difference between
this, however, and trying to mislabel something that is clearly not
collaborative as though it was, is substantial.
When a collaborative case goes south, we can utilize the greater
collaborative organization to be a part of processing what happened to learn
the
substantial lessons they provide. If collaborative professionals act
inappropriately
and non-collaboratively, the organization can provide some quality
assurance, supporting them to make the transformation, or sanctioning them as
appropriate, including mandated mentoring or expulsion.
When we mislabel a non-collaborative case as collaborative, we not only run
increased risks of failure, but also risk the integrity of our brand name -
collaborative practice. As others have mentioned, we create the impression in
the legal community that anyone can do collaborative practice by simply
calling themselves collaborative. This is more than a slippery slope - it is
dangerous precipice.
Take Care
Bruce
Bruce D. Peck
Collaborative Family Law
(651) 994-9944
(651) 994-9955 Fax
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