Collaborative process is unique in that it fundamentally changes the role of the lawyer in divorce cases. Rather than being the mouthpiece for the client, the Collaborative lawyer supports the client in speaking for him or her self in direct discussions with their spouse or significant other.
The traditional role of the divorce lawyer is to advise the client as to the law, and represent the client in resolving the case based on the law. This might be in court or in negotiations, but it means that the lawyer, as the legal expert, stands in the role of speaking for the client. I heard a rather horrifying story the other day about an attorney taking this model to the extreme – at their settlement conference negotiations, the attorney insisted on making all the decisions about what they would or would not accept and told the client to just be quiet when she wanted to interject what was acceptable to her.
In Collaborative process on the other hand, the primary focus is not the law, but the goals and interests of the parties. While a lawyer may be a legal expert, the clients are the best experts as to what matters to them. Resolution is not reached by threatening what might happen if the case does go to court, but by working to find solutions that meet the needs of both parties.
When I work with a client in a Collaborative case, my role is not speaking for them in negotiations. Instead, my role, along with the rest of the Collaborative team, is helping the clients explore what is important to them, what is important to the other person, and what creative solutions they can develop that will satisfy the interests of both parties to the extent they will both be willing to say “yes, this works for me”. The team helps the clients analyze the options, and may suggest some ideas, but we don’t make the decisions.
I believe very strongly that when I, or the court, or any third party makes decisions for a client about potential outcomes, the solution is never going to be as good a fit for the clients than one the fully informed clients decide for themselves. While Collaboration is challenging work, it just feels more right.