Collaborative Law is Dead. Long Live Collaborative Law!

I often open training sessions with the provocative suggestion that collaborative law could be dead within 18 months.

I then ask the questions;

• What were those benefits that we foresaw for our clients and their families?
• What hopes did we have for the work that we would be doing and what it meant to us to work in this field?
• Why did we believe in the process to invest time and money in collaborative training in the first place? and
• Bearing all of this in mind, is collaborative law something worth fighting for or will we, the current custodians of the collaborative torch, get it wet and allow it to go out before we get to pass it on to the next generation?

Without a doubt, far too many collaborative lawyers have had far too few cases.  Too many have yet to have their first case.  That does not mean the process is redundant or irrelevant although noises are starting to emerge along these lines.  The various collaborative forums both online and in PODs are filled with such sentiment.  A debilitating, potentially self fulfilling fear is starting to set in.

We feel and believe in the process.  Those who have worked in the field have had the sometimes immeasurable joy of seeing how families are served by it, how couples are able to build a new kind of regard and relationship with one another.  We long to do more of it.  Unfortunately our anecdotes are not enough to maintain momentum indefinetely.

We need more.

We need revival, regeneration and recommitment and therein lies the hope for this work that many of us hold so dear.

What might that look like and how might it come about I wonder?  And once it is here, how might we recognise it?

Of Collaborative Law Websites and Leaflets.

Too much emphasis has been placed on websites and tri-fold leaflets, educating the public – as if they are the ones who don’t get it.  We have been pursuing this path for years now and the response is far too low.  Waiting for clients to chime with our own vernacular, or trying to position our phrases into their language is a futile task.

Want proof?  Go to www.adwords.google.co.uk and see how many people search Divorce in the UK each month (673,000 on the latest count)

How many do you think search “Collaborative law?” or even “Divorce mediation”?  The answer is at the bottom.  Don’t peek.

And yet, despite this mismatch in terminology, our clients are crying out for collaborative practice.  The potential collaborative client is there in every client who states “I don’t want this to go to court.” They are inviting us to enable them to work collaboratively, if only we let ourselves.

We get in our own way.

In many ways we seek to limit the potential in collaborative work.  We try to contain it within conventional lawyer shaped boxes and expectations.

If we are going to see clients collaborating then we need to demonstrate our collaborative ways of working in everything we do.  And that is much much harder for lawyers than we assume.

The Myth of the Paradigm Shift

We kid ourselves with the myth of the paradigm shift.  The other day I read how one lawyer had got the paradigm shift – “That move from positional to interests based negotiation…” and I am thinking, “That’s not the shift at all.”

The positions based vs interests based approaches should already be familiar not just to collaborative lawyers but to all lawyers.  It is or should be a core concept within the most fundamental or conventional negotiation training.

The shift from conventional to Collaborative practice is much more nuanced and penetrating than simply seeking out interests.  It goes, instead, to the very core of identity, role and our ways of relating to other people.

Put Your Hand Up if You Would Like More Collaborative Work?

I often ask how many people want more collaborative work.  Everyone I ask wants more.  On one workshop the highest proportion of collaborative to conventional work within any one lawyer’s caseload was 10%, and yet the lowest portion that people wanted was 30%.  What a heart aching, yearning gap that was.

How Clients Don’t Choose Collaboration.

We looked at some advanced client relationship material, exploring the paradox of choice, how we place clients in a passive position where we are the expert and they are merely providing reactive answers to the information that we mine out of them.  And when they are in that passive place we might then present them with a strange thing called “Process options” – jargon for choices – and what do we then ask them?

You know what is coming.

“So, what do you want to do?”

And in that moment we rip them out of their passive chair and throw them into an active role and expect them to have recalled all of the 5 or 6 “Process options” that they barely understood, let alone heard, and critically evaluate the suitability of each and the ramifications of their imminent choice and we ask them to tell us what they want to do.

And what do they tell us?

Again, you know what’s coming because you have heard it so many times already.

“Well, what do you think I should do?”

In that moment they snap back to the conventional “Advised/Advisor” role and hand back control and the responsibility for this choice to us.

And what do we do?

In an instant we consciously or subconsciously think about our indemnity insurance and wasn’t there something about a case in America where someone was being sued because they recommended Collaborative Practice to a client and it didn’t work and what about the participation agreement and the disqualification clause and you know it’s so hard to get any clients these days let alone a collaborative one and why would I risk losing one and how would I explain it to my supervising partner or finance director and is a conventional approach so bad anyway because we can still be little c collaborative about it right…?

And so we reply;

“Well, let’s send them a letter and see what happens.”

In that moment conventional practice has got us in its grip.  We send the letter, and sure, it is a pretty special letter, right?

No matter how sensitively we write (and we do) the other partner’s response is seemingly inexplicable.  Now they have instructed their lawyers who may or may not be collaboratively trained (doesn’t seem to make much of a difference, does it?) and they respond as if they have interpreted our letter as aggressive or alternatively patronising – interpretations which remain invisible to us and our client.  And now look what happens.  We start to become convinced that this matter is not suitable for collaboration after all.  Thank goodness we did not commit to that process.  Our caginess is vindicated. Over the exchanges that follow we become increasingly convinced of their unreasonability or reticence to negotiate transparently and matters quickly follow an entirely predictable route.

Next Gen Collaborative Practice.

Collaborative law will die for many.  They will be convinced that it is an irrelevance, a product that nobody wants.  They will continue to do excellent representative legal work and serve their clients very well.

There will remain a much smaller population of collaborative lawyers, probably now calling themselves collaborative practitioners, who consciously challenge themselves – and their clients – about what a Collaborative approach truly looks like and what are each of our respective roles within it.

Over the coming years Collaborative Practice will develop a new boldness and rigour of approach, with a highly committed practitioner base.

They may well have to reposition themselves as highly autonomous sole practitioners, converge into Collaborative Offices such as those we see in America, Canada and Australia, but they will be there or join niche progressive family law firms dedicated to offering the full range of services, but they will still be there.

And like the fruit tree that is pruned the seasons ahead will see dense new growth, blossom and harvest.

Collaborative Law in its current iteration may well die for many.  In its place will rise the next generation of Collaborative Practice.  That is an exciting thing indeed.

And I wonder, who’s up for it?

You can learn more on Neil Denny’s Breakthrough! Getting Clients To Collaborate course.  The next open date, at the time of writing, is 20th April 2012.  Tickets are available here.

Neil is an author and international speaker on collaborative practice and a consultant collaborative lawyer with Family Law in Partnership The views expressed in this article are his own and not necesssarily those of any organisations with which Neil is associated.

Answer

Last month the word divorce was searched on Google, in the UK, 673,000 times.

Collaborative law was only searched 1600.

Divorce mediation fared a little better with 2900.