Let me join the chorus of praise for Sherri's comments. Having been
at this since then mid-90s, I think that she has nailed a big piece
of the evolution. I'd like to say more, but that will have to wait
for some holiday free time. In my view, this is an important
discussion to have as our practices mature and as we are more
interactive with other disciplines.
George Richardson
++++++++++++++++++++++++++++++
At 1:41 PM -0500 12/14/03, Sherri Goren Slovin wrote:
Harry- I am not sure seeing a number of difficult collaborative cases are a function the holidays. It may be more the reality of what happens when the number of collaborative cases grows.
I have been giving a lot of thought to this issue. We have been practicing collaborative law in Cincinnati since 1997. Many of us have active practices with a great number of cases. We have reached a real comfort level with the concepts. Hundreds and hundreds of cases. That's a good thing. The real issue is how to practice collaborative law well. .. and we are still working on that.
While I believe that having trained coaches, child specialists and financial planners can totally change a dynamic and be very helpful to reaching resolutions, in many case there will likely not be any additional associated professionals. My ruminations here concern the lawyer's role and the client understanding of that role.
My sense is that there is an evolution that takes place when lawyers practice collaborative law. We begin with lawyers trained to problem solve in a highly adversarial system. In that system, the lawyer's goal is to get the best deal for his or her client. It is a mistake to demonize that system. It is what it is and it is where we start.
Training in Collaborative Law often comes in layers and usually begins with a focus on the "paradigm shift." When lawyers are first exposed to "paradigm shift" concepts, there is excitement at the idea of the empowered client, and the lawyer's role in assisting the client to actualize that empowerment. The next layer of training often focuses on understanding interest based negotiation and the creation of a common choreography of negotiation. Lawyers gravitate to the choreography, as there is a real comfort level in replacing old rules with new protocols. This in essence, is the easy part. It is covered by most basic two day trainings and in fact, is really all that can be covered, as even this much is a lot to be absorbed.
The more difficult issues center around the definition of collaborative negotiation, and whether the CLIENTS and the LAWYERS have a clear understanding of the role of each in collaborative negotiation. It is here that the "rubber meets the road," and it is here that I believe collaborative lawyers have the most difficulty BY FAR.
We have to ask ourselves, when a client chooses collaborative law, what is that client's expectation of us as his or her lawyer? They watch TV, they watch movies. Have they ever seen a collaborative system? Do they fully appreciate what it will feel like when their lawyer is having a meaningful discussion in a four way with a spouse they detest? Do we do enough as lawyers to clarify our role in the collaborative process? And if we don't, could it be cause for difficulty?? And is it possible we don't because for many lawyers, there is some level of discomfort with defining the collaborative role itself?
How do we define the role? I have been influenced by Robert Mnookin's book Beyond Winning, Negotiating to Create Values in Deals and Disputes. I especially like the idea of our roles as "finding value-creating opportunities when they exist, and resolving distributive issues efficiently and as a shared problem."
How we go about doing that is in essence the crux of the lawyer's role. I am working on an article that will discuss this in greater detail and welcome the thoughts of the Listserve. We have a real responsibility to engage in a dialogue that promotes clarity on this issue.
Just some thoughts on a snowy winter day. Happy Holidays to everyone!
Sherri
Sherri Goren Slovin
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Cincinnati, OH 45202
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