by Diane Daly
In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:
First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!
Second, it illustrates the importance of choosing your collaborative practitioners wisely.
Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.
The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.
It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.
Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.
The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:
1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.
2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.
3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?
4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.
5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.
Diane F. Daly
Collaborative Lawyer, Mediator & Arbitrator