by Marty Klein
In 2007, after twenty-three, war-torn years of litigation, I just knew that there had to be a better way of resolving conflict in people’s lives. Thus began my quest – my journey into the world of alternate dispute resolution.
So I figured, “ if I’m going to do this, I better do it right. Therefore, unlike most individuals, I didn’t follow the basic, “required courses,” rather I pursued and ultimately graduated with an Advanced Certificate in Conflict Management and Mediation at Conrad Grebel College, University of Waterloo. In September 2007, I completed my Level II collaborative training. And then, in November 2014, I became an accredited mediator (AccFM). More recently I was certified as a specialist in both family mediation and arbitration (FDRP Med & FDRP Arb).
The collaborative process has always captured my heart. Yet, I am seriously beginning to wonder whether I have a skewed (misconstrued) and perhaps unrealistic understanding of what the collaborative practice is all about! My understanding of the process has always been that all of the “players” (lawyers, parties and professional neutrals) are in it together. You know, “all for one – one for all.”
Rest assured, though I may appear to be naive, I am certainly not that disjointed to appreciate that when we are dealing with partnership breakdown, emotions run high and people, even in the best of moments, can experience grave difficulties, as they walk through their brokenness.
I’m worried! Over the past year or so, I confess that I am becoming growingly disappointed with the collaborative process. Many of my colleagues, who once were diehards – sold out practitioners and professionals, are dropping by the wayside, looking into other dispute resolution processes.
Why is this happening? Why have we gotten off the track? How can we restore what I have truly believed to be a good thing? Is it because the process is mostly lawyer-driven? And let’s face it, we know what lawyers are capable of doing when it comes to conflict!
In the past five years, alternate dispute resolution training has ballooned. Myriads of lawyers and non-lawyers are attaining their accreditations. Many lawyers have plainly had it. They are being driven from court-based resolution in order to find and seek out more peaceful ways of resolving disputes. Many of us are finally “getting it” and truly beginning to realize that we need to allow and facilitate people in taking back control in their lives and in their destinies.
Although many of my colleagues would prefer to eradicate litigation in their lives, they are unable (choose not?) to do so – some because there are too many mediators and not enough business, and for others? Let’s face it, litigation breeds financial prosperity. After all, there are not many jobs that pay you a handsome return for simply sitting around for hours, waiting for your case to be heard. This leaves me thinking: “can one live the schizophrenic life of both litigator and collaborative practitioner?” For those of us who are in the collaborative practice, we’ve seen it over and over again – aggressive lawyers conducting four-way meetings under the collaborative banner, but in a most litigious and positional manner.
In 1990, in the City of Minneapolis, Minnesota, a lawyer by the name of Stuart Webb founded “collaborative divorce.” After fifteen years of practicing divorce law, Stuart “got it” and decided to take action and do something about all the road blocks and frustrations he kept running into, by settling divorce issues in court. The collaborative process had begun. Soon, other lawyers joined in, intrigued with the concept of finding resolution outside of court.
The idea of working with an opposing lawyer, as a team, convincing a couple not to go to court, caught the hearts of other lawyers. In San Francisco, they began to realize the necessity of incorporating, psychologists and social workers to join their “team” as divorce coaches and child specialists. And then came the financial consultants and other “neutrals,” working alongside of legal counsel.
We’ve all seen the videos – you know, where clients and their lawyers pleasantly sit around the table working through their issues – problem solving and generating options. Everyone seems to be so respectful of one another and it is clear that “my needs are your needs and your needs are mine.” In other words, “we are going to find resolution and solution, by putting the other party’s needs before my own.” It’s actually kind of like a religious experience!
Please do not misunderstand me. I am not, for a moment, mocking or dismissing the process. In fact, this is exactly the way I envisaged and hoped the collaborative process was all about. It’s bad enough that we all have to deal with the emotions surrounding breakdown. Yet, could it actually be possible to be an advocate for a client, and at the same time, work for the good of a family as it is being forced to restructure and recreate itself, due to its breakdown?
I hope that as others read this article, they will be challenged to re-examine as I have been, in hoping for a better way to bring resolve in people’s lives. And there will be others who will say that my “vision” for what I think the collaborative process is all about, is not the collaborative process at all, for I am only creating huge conflicts of interest, by serving and meeting the needs of the entire family unit.
Sadly, I am finding myself in cases, where lawyers, who have never been trained in the “collaborative process,” are more “collaborative” in the way and manner in which they practice, then those who have had all the training and have gone to all of the conferences. As it is said, “You can change the ‘form/system’, but you may not necessarily be able to change the people.”
It is my premise – my underlying philosophy, that in order for you to be a “true” collaborative lawyer or practitioner, your lifestyle – your philosophy – the way you conduct your own life – must be collaborative. It is my challenge, both to the reader and me, that if you dare to be a “true collaborative process person,” you need to “walk the talk.”
It never ceases to amaze me how lawyers continue to have one foot planted in the world of litigation and the other in the collaborative world. The explanation, I have been told, countless of times: “When I do collaborative, I’m collaborative. And when I do litigation, I’m a damn good litigator.” I disagree. Our underlying world and life view will permeate and affect the way in which we deal with conflict. Lawyers have been trained (minds moulded in law school) to discern the issues and pinpoint the problems, but we are dreadfully lousy at generating possibilities in resolving those issues.
I am convinced that under the collaborative practice, each lawyer must be responsible for moving his/her client away from artificial bargaining positions, in order to focus on their real needs and interests to seek “win-win” solutions for both partners, and of course – the children.
All for one – on for all? Can this be our mission statement for the collaborative process? Can we, as lawyers and as professionals in the collaborative process, walk that philosophy? Am I wrong in my thinking? Am I out to lunch in even dreaming this way?
Marty Klein is a member of the Peel Halton Collaborative Practice Group. He has been a family law lawyer for over three decades. He is also an accredited mediator and trained in parental coordination. Above all else, is Marty’s relentless commitment to “fairness” and pursuit of “no-court” resolution of conflict.