Woody, I think your analytic categories bear thinking about and will be very
useful reading for practitioners unfamiliar with these modes of conflict
resolution.
and ---I am hoping that you will listen to the responses on this
listserv--which are only the tip of the iceberg on this point--and choose
one of the hundreds of other adjectives that the rich English language
offers to describe friendly solutions-oriented work---and not use the term
"collaborative" as you have done in your article. If you retain that word
(and truly, I can't see any good reason why you'd want to), my predictions
are:
- no one in the collaborative community will be able to pay attention
to your thought-provoking ideas because of frustration that yet again,
someone relatively new to our specific mode of work and our community
appears to be disrespecting the one bottom line request that has been made
of colleagues and critics alike, since Stu invented this model: don't use
the term collaborative to describe any legal conflict resolution model other
than the one that has two collaborative lawyers and a contractual
disqualification from representing parties in third party decisionmaking,
and
- you will be regarded, either explicitly or covertly, as someone who
disrespects the enormous efforts that have been put into "branding" the term
collaborative law and collaborative practice for seventeen years now, by
probably about 15,000 trained collaborative practitioners worldwide who are
all united in respecting this terminological request, and
- you will be treated, either expressly or indirectly, as someone
unsupportive of the collaborative movement.
This terminological issue has arisen again and again every time a trainer or
academician from some other branch of the conflict resolution universe
becomes interested in collaborative practice, and what George has written in
his email is a thumbnail sketch of a dialogue that members of our community
have had with each and every one of them. All of them have eventually
understood that we are not trying to engage in thought control or censorship
or gatekeeping and all of them, whether they agree with our premises about
collaborative practice or not, have agreed to respect this one
terminological request. We support all conflict resolution professionals
doing and thinking whatever they like---so long as they don't mess up our
amazing achievement of having worldwide consensus in the collaborative
movement that this term collaborative will not be used for anything but
cases in which all parties are represented by collaborative lawyers and all
parties and lawyers commit in writing that the lawyers can never represent
the parties in adversarial proceedings of any kind.
Particularly at this juncture, when collaborative legal practice has become
mainstream enough for there to be significant ethical opinions, focusing on
informed consent, and for there to be a model collaborative statute, it is
more important than ever that none of us who support client centered
conflict resolution do anything to blur or confuse the ability of our
potential clients to make informed decisions about process choices.
Confusing the terminology at this late date not only is detrimental to the
interests of consumers, but puts practitioners at risk of malpractice claims
by clients who thought they were getting one thing but got another. To
date, seventeen years into this movement, not one collaborative lawyer has
been sued for malpractice, and I am convinced that our emphasis on clarity
of model and super-informed consent to it are the main reasons why. You
would surely not want to do anything that works against that remarkable
achievement.
Last but not least, confusion of terminology can only make it difficult,
perhaps impossible, for useful empirical research to be done that compares
outcomes from different conflict resolution modes. As you well know,
empirical research in the mediation world has been difficult to design and
the results have been difficult to interpret because there are so many
different modes of practice that all use that label. Joan Kelly did a
famous footnote just listing all the models that have been lumped under the
term mediation, which takes up almost a page, as support for her comment
that it is difficult to make any generalizations at all about mediation that
have any real utility or accuracy. That is fortunately not the situation in
the collaborative community and we would not like to see that changed.
I frankly would find it hard to imagine a reason for using the term
collaborative other than as has been requested that could come close to
outweighing the substantial interests that would be harmed by using the
term, as your article does, to describe models other than collaborative
law/collaborative practice, as it has been defined over fifteen years of
usage, and in ethics opinions and statutes including the draft model
statute.
I know that you have a great deal to contribute to this movement as a
creative colleague. So, I am adding my voice to what will be a very loud
chorus asking you to edit your piece using a term other than "collaborative"
for the generic adjective describing friendly or constructive conflict
resolution modes. In fact, I'd venture to say that respecting that request
is almost a sine qua non for being considered a colleague rather than a
problem. That would be a real loss all round.
Warm personal regards,
Pauline
On 10/11/07, Forrest Mosten <mosten@xxxxxxxxxxxxxxxxxxx> wrote:
Dear George:
I have heard wonderful things about your work and would be delighted to
get together either North or South (my daughter is a IL at
Stanford)---unfortunately IACP is on the same day as ACR--.
With best regards,
Woody
Forrest S. Mosten
Mediator and Collaborative Attorney
Certified Family Law Specialist
California State Bar Board of Specialization
11661 San Vicente Blvd. #414
Los Angeles, CA 90049
(Office) 310-473-7611 x101 Fax - 310-473-7422
(Training) 310-441-1454 Fax- 310-470-2625
mosten@xxxxxxxxxxx <mosten%40mediate.com>
<mailto:mosten@xxxxxxxxxxx<mosten%40mediate.com>>
www.mostenmediation.com <http://www.mostenmediation.com/>
________________________________
From: CollabLaw@xxxxxxxxxxxxxxx <CollabLaw%40yahoogroups.com> [mailto:
CollabLaw@xxxxxxxxxxxxxxx <CollabLaw%40yahoogroups.com>] On
Behalf Of George B. Richardson
Sent: Wednesday, October 10, 2007 2:56 PM
To: CollabLaw@xxxxxxxxxxxxxxx <CollabLaw%40yahoogroups.com>
Subject: Re: [CollabLaw] "Unbundling the Collaborative Divorce Process:
Different Models for Different Families".
Woody, I really wish I had time to discuss this further with you. If
I were even close to LA tomorrow, I'd try to get to your seminar,
but, alas, I'm too far away and have a 7-way scheduled.
Perhaps I misunderstand because I don't have the context. However,
when I looked at your chart "Range of Collaborative Models", I could
only find three or four of the ten categories listed that could be
considered "collaborative".
My real concern is that we, as Collaborative Practitioners, must not
create any confusion that suggests that Collaborative Practice
includes any form of dispute resolution other than one with a
disqualification requirement with respect to all of the professionals
involved in the case if the clients turn to court to resolve any of
their dispute. Anything else is NOT collaborative. Period. It may be
friendly, it may be cooperative, it may be voodoo, but it's not
collaborative. Anyway, maybe we can chat further in Toronto!
Thanks for your time,
George Richardson
At 7:20 AM -0700 10/9/07, Forrest Mosten wrote:
I have just uploaded a chart on the Range of Collaborative Models18
that is the basis for my training with the Los Angeles Collaborative
Family Law Association (Fred Glassman, President) tomorrow evening
.<https://s08.123signup.com/servlet/SignUp?P=17287191155612400&PG=17287
<https://s08.123signup.com/servlet/SignUp?P=17287191155612400&PG=1728718
<https://s08.123signup.com/servlet/SignUp?P=17287191155612400&PG=1728718
https://s08.123signup.com/servlet/SignUp?P=17287191155612400&PG=1728718
in
2300&Info and for a fuller presentation at the University of
Missouri Conference on Innovative Lawyering Practices (Professor
John Lande, Convenor, David Hoffman, Keynote Speaker) to be held
this Friday in Columbia.
<http://law.missouri.edu/cle/program-descrip/descrip08/innovativelawyer
<http://law.missouri.edu/cle/program-descrip/descrip08/innovativelawyeri
n>
http://law.missouri.edu/cle/program-descrip/descrip08/innovativelawyeringsymposium.pdf.
<http://law.missouri.edu/cle/program-descrip/descrip08/innovativelawyeri
ngsymposium.pdf.>
Forrest S. Mosten
--
<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>:<:>
George B. Richardson PC; 650.324.4801
Mediation and Collaborative Professional
Certified as a Specialist in Family Law by the
California State Bar Board of Legal Specialization
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[Non-text portions of this message have been removed]
