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
30 Garfield Place, Suite 920
Cincinnati, OH 45202
T: (513)241-9844
F: (513)241-9908
www.slovinlaw.com
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