Can't We All Just Get Along?
by Keith Thompson
Collaborative lawyers are challenging the adversarial nature of the American legal system.
Santa Rosa attorney Margaret Anderson knew it was time to take a fresh look at her career when she began waking up in the middle of the night, arguing divorce cases in her head. "I won a lot of cases, but I was finding that the way I was litigating wasn't helping people find the resolutions they needed through the divorce process," she recalls. Gradually, Anderson realized that the adversarial nature of the legal system aggravated the highly emotional dynamics of the divorce process-and of many other volatile legal disputes as well.
Anderson is not alone in this realization. A great many attorneys-including more than a few masterful litigators-agree the time has come for alternatives to courtroom warfare as a means of settling legal problems, especially family disputes like divorce. The premise of these combatants-turned-conciliators is straightforward: the end of a marriage can be hard enough without adding more pain and heartbreak through a divorce process in which spouses view each other as adversaries and the divorce as a theater of war.
Anderson is among a growing number of lawyers who are trying to shift the terms of divorce and other contentious disputes from conflict to cooperation. Many say they're achieving positive results with collaborative approaches in ways they themselves sometimes find surprising.
The birth of a new kind of legal practice
Attorney Stuart Webb, the Minneapolis attorney widely credited for sparking what's known as the collaborative law movement, had a similar epiphany to Anderson's in the mid-1980s. Webb began rethinking his career with the deceptively simple idea that there had to be a way to successfully practice family law without the familiar dynamics of suspicion, hostility, acrimony and scorched-earth emotional devastation.
He quickly grasped the benefits of making settlement the explicit goal from the outset, as opposed to the more traditional approach of both sides aggressively preparing for courtroom warfare as a means of getting the other side to blink first and settle. Webb began to wonder what results could be achieved if attorneys turned their full attention to achieving win-win settlements with clients who wanted justice without retribution.
Webb realized it was one thing to favor out-of-court settlement; it was quite another to put himself on the line to make it happen. Suppose both parties to a divorce-and their attorneys-were to pledge to reach an agreement without going to court? What would the game look like if the rules were changed so that lawyers could not, under any circumstances, go to court over an issue? It seemed clear to Webb that if litigation were no longer a dispute-resolution option, clients would have no choice but to rise to the challenge of solving the problem.
So Webb declared in 1990 that he would no longer go to court; he would represent clients solely in participatory negotiations aimed exclusively at creative settlements. If the process broke down, Webb would refer his clients to litigation counsel, and he would withdraw. The other attorney would do the same by advance agreement.
Thus collaborative law was born-and with it a major unknown. Like the Kevin Costner character in Field of Dreams, Webb had acted on a hunch that made little sense from a practical or financial standpoint. Having constructed the lawyerly equivalent of a baseball diamond in his backyard, Webb had good reason to wonder: Would anybody come?
Oh, they came. In his first two years of collaborative practice, Webb handled 99 collaborative law cases, all but four of which reached full settlement. Those four were referred to litigation counsel. As other Minneapolis-area attorneys achieved similar successes, Webb became convinced there was method in his madness and replicable madness at that. He and eight family law colleagues founded the Collaborative Law Institute, a non-profit organization dedicated to developing this non-adversarial approach to legal resolution.
Today there are collaborative law practice groups throughout the United States and in several countries. The North Bay has several collaborative practices, and one of the largest collaborative professional organizations, the International Academy of Collaborative Professionals, is based in Novato. These firms are comprised of attorneys who, when they sign on as a collaborative law counsel, agree to practice according to three broad commitments: they pledge not to go to court, they insist on an honest exchange of information by both spouses, and they shape a solution that takes into account the highest priorities of both spouses and their children.
How the process works
The collaborative process typically begins with a divorcing couple's realization that they have ongoing shared priorities (number one: raising healthy kids) that are at least as important as the immediate dispute. "People who choose collaborative law over conventional litigation tend to be highly motivated to maintain effective relationships, solve problems jointly and prevent a court battle," says Robert Marmor, a Healdsburg family law attorney who turned to collaboration after more than 20 years of observing the wear and tear caused by litigation.
There is no official deposition process in collaborative law. "Spouses are often amazed to realize that the information-gathering process can proceed informally, with openness, candor and cooperation rather than secrecy, guardedness and threats," Marmor says. "But what gives the process its distinctive dynamic is the lawyers' agreement to withdraw if the collaborative process breaks down and to be replaced by new attorneys who will take the case to trial."
Walking out in anger, or provoking the other side to do the same, ceases to be a viable tactic, says San Rafael attorney Rodney Johnson, who had practiced family law for 13 years when he realized he had had enough wrangling, rancor and bitterness for a lifetime. Johnson began shifting his practice from litigation to mediation when he realized that it made more sense to get people together at the start, have them put their cards on the table and talk about solutions.
"In conventional litigation, both sides usually assemble their own teams of financial advisors and child welfare specialists," Johnson says. "You know who's who from one quick glance at the lineup on either side of the large rectangular table. In the collaborative model, the dynamic shifts to a team approach where the same financial advisor or child psychologist may act as a consultant for both spouses. Yet each side might have his or her own coach or therapist and, of course, his or her lawyer. In my office, all negotiations take place in four-way settlement meetings attended by both clients and both lawyers, with everybody sitting at a round table to help minimize the us-versus-them psychology. When the goal is to develop effective relationships, solve problems jointly and prevent a court battle, an outside observer might need 15 minutes to even figure out which lawyer is representing which party."
The unique mindset of collaborative law
For both attorneys and clients, going through the collaborative process requires a flexibility that is often missing from traditional adversarial practice. "Divorcing people tend to come to a family lawyer's office feeling a lot of anger and rejection, often eager to get retribution or send a message about how badly they've been hurt," attorney Margaret Anderson says. "Then they connect with a litigator who takes their story at face value-a litigator who takes on their anger to get the most for their client. Litigating attorneys very often take rock-solid positions based on the polarization that their client brings to the first meeting."
The problem with this, Anderson points out, is that the divorce process is highly dynamic. As both spouses begin to go through changes, it may happen that attorneys are proceeding with outdated stories that don't serve clients' evolving perspective. "I began to see how crucial it was for me to stay in close touch with my clients to see how they might be changing. This meant I needed to ask myself whether I was making my clients' issues too much my own and doing pitched battle for a person who was no longer in the same psychological space."
Anderson offers two striking metaphors for describing what she sees as the fundamental differences between her former and current ways of practicing. "Litigation involves two attorneys each on fast motorcycles with their clients in sidecars. The attorneys control the speed and direction of the process. In collaborative law, it's more like both clients are riding a tandem bike, setting the pace with their pedaling and choosing the direction by steering. The two collaborative lawyers are there as training wheels to keep the bike upright and stable and to make sure there's no crash."
Anderson's metaphor gets it exactly right, says attorney Rodney Johnson, who's often asked by a couple how much a collaborative divorce will cost. Johnson says he invariably responds with a question of his own: "How much time do you want to take?" His goal all along is to ensure that the process is always in the hands of the client. "If you want to drag the process out, you can pay for my kids' education," Johnson tells clients. "Or you can speed up the process and use the money you save to put your own kids through school. Your choice. You're in charge."
The psychology of law
Mill Valley attorney Pauline Tesler's reckoning with the life of litigation started with an aching sense that something hugely important was missing in the go-to-the-wall litigation model. "For those of us who are first-generation collaborative lawyers, it was difficult to say I'm going to do it differently when there wasn't a 'differently' that you could see. I was winning great victories as a litigator, yet my clients were miserable. I knew there had to be a different way." Trying to figure out what to do took Tesler on a 10-year quest, including study with a cultural anthropologist to find out how other cultures manage highly emotional conflict.
"A big lightbulb went off in my head when I encountered psychologist Carl Jung's notion that every dark and unpleasant part of our nature that we disown becomes part of our 'shadow,'" Tesler recounts. "The litigation matrix mobilizes the shadow behaviors of everyone who works in it, beginning with clients who walk through my doors, literally possessed by rage, guilt, shame, remorse, all of that. These emotions invite litigating attorneys to engage in alter-ego behavior on the part of clients who are effectively in a state of diminished capacity because they're so upset and angry about what's going on in their lives. The process spirals further downward toward alienation and impasse because the courtroom is explicitly not equipped to resolve these shadow issues or even to admit that the issues are animating much of the whole process."
A specialist in family law, Tesler has become a pioneer in developing and extending the practice of collaborative law in California and nationally. Since 1996, she has limited her practice with clients to collaborative representation. Working with the Novato-based International Academy of Collaborative Professionals, an organization she founded, Tesler trains lawyers, as well as mental health and financial professionals, in the intricacies of collaborative practice.
According to the American Bar Association, 95-98% of all lawsuits reach resolution prior to trial. In short, most people settle. The problem with settlement so late in the process, Tesler says, is that most of the expense and acrimony of litigation have already taken place; sometimes rivers of bad blood have been spilled. As for the established litigation strategy of trying to soften up the opposing attorney for settlement by constantly raising the stakes and threatening to let the judge decide, Tesler says this tactic requires litigators to devote 95-98% of their time, energy and expense for an event-trial-that happens less than 5% of the time.
"The only other places you can find those percentages are military and emergency response teams," she continues. "It makes no more sense to practice law this way than it does to use the emergency room as your primary medical care." Citing numerous legal malpractice cases where the transactional costs of litigation approached or even surpassed the potential settlement value, Tesler insists collaboration should be the default mode, with litigation as the tragic last resort. "Our profession has got it exactly backwards," she says.
"Litigation by its very nature tends to undermine relationships," says Sonoma County Superior Court James G. Bertoli, who hears family law cases on a regular basis. "We have high school students on assignment coming to observe our various county courts: civil, criminal and family. The uniform feedback we get from kids after sitting in on litigated divorces is, 'Isn't there a better way?'"
A better way, but not for everyone
Many North Bay attorneys are convinced that collaborative law is that better way, but they agree that, for all its potential for resolving legal disputes peaceably, collaborative law is not a panacea. When collaborative law works, it's generally because both parties bring their best intentions and highest motivations to a process guided by skilled collaborative lawyers. Conversely, the collaborative process typically breaks down when either party (or both) makes less than a full commitment to exchanging complete documentation, communicating openly and getting beyond the airing of grievances to solving problems jointly.
"Collaborative law depends on both parties opening up their hands and putting their cards on the table," says Rodney Johnson. "In collaborative law, as in litigation, if you hide something like assets and the concealment becomes known later on, the court can reopen the judgment. That's really the last thing you want to have happen after you've gone through the pain of divorce. The collapse of mutual trust is one of the main qualities that leads to the end of marriages, and mutual trust is crucial to a collaborative divorce. The collaborative process can help foster trust, but in the final analysis it's up to the clients to rebuild the trust they need to bring the process to fruition."
It goes without saying that mutual trust is difficult in relationships characterized by emotional or physical abuse. Because the abuse victim may be inclined to surrender in order to make the collaborative process successful, traditional courtroom litigation is often the best option in such cases. Litigation may also be more appropriate when either party suffers serious mental health problems or in families where child abuse (real or suspected) is an issue.
In short, collaborative law offers powerful methods. Yet in the final analysis, the magic lies less in the methods than in the willingness of clients and attorneys to bring impeccable intentions to the process at every turn.
Expanding beyond family law
Catherine Ann Conner, who specializes in various methods of alternative dispute resolution at the Santa Rosa law firm of Conner, Lawrence, Rodney and Gurney, spent much of her litigating career thinking there had to be a better way to resolve disputes than the traditional adversarial model. She had already shifted her practice to mediation before the emerging collaborative approach caught her attention.
Conner is currently spearheading the Collaborative Council of the Redwood Empire, a Sonoma County forum that offers training and lectures about integrating financial analysts, child psychologists and other specialists into the collaborative legal model. The council is also working to expand the collaborative model beyond the confines of family law to areas including probate and estate planning, business law and even some civil applications.
"Disputes about how to interpret a will and the generational transfer of property very often feature the same kinds of emotional issues as in family law," says Conner. "Parties want fair resolution, but not at the expense of destroying important and longstanding relationships. Likewise, in business conflicts, where there are well-established relationships between companies and vendors, collaborative practice encourages the parties to think about the future in terms of lost business opportunities if they go to the wall over one issue."
Amen, says Tesler. "Conversations with business lawyer colleagues and interviews with corporate executives reveal that when a dispute is referred to the litigation department for conventional legal dispute resolution, it's very rare that litigating attorneys ask the kinds of questions that reveal how important the immediate dispute is. Instead, litigators try to get the maximum advantage for their own client's side of the table, and in the process they rarely look at the huge dollar costs of litigation or at the expand-the-pie opportunities for both sides that might exist for resolving the dispute."
For better or worse, Tesler continues, attorneys are the designated professionals for guiding people on what the culture expects of them when they divorce and restructure their lives. "We are the guides that tell people how to rise to the occasion and behave in a socially appropriate way. We should be educating clients about the shadow phenomena of grief and recovery, by telling clients that we know they are going to call us on bad days, and we're not going to take instructions from them on those days. We'll wait until they're feeling good again, and then we'll make the game plan."
She says this seldom happens in conventional litigation, where attorneys characteristically work out game plans when clients are feeling frightened, vulnerable, anxious and guilty. "Litigating attorneys tell clients: 'The job is for us to get most of the measurable stuff on your side of the table.' Well, that's just not a socially responsible way to practice law. Nor is it good for litigators, for whom the incidence of substance abuse, major depression and suicide are considerably higher than for the population at large. These are indicators of a profession in deep trouble," Tesler says. But she also sees signs of hope.
"I give trainings all over. In each introductory training, invariably a few lawyers come up with tears in their eyes, saying they were about to leave the practice of law. They say things like, 'Now I can see a way to stay in practice and do useful work.'"
Less than 15 years old, the collaborative law movement is now experiencing rapid growth with 129 practice groups in the U.S. and Canada. Located in Novato, the International Academy of Collaborative Professionals has seen its membership double to 1,000 since last year with members in England, Ireland, Scotland, Switzerland and Australia. Stuart Webb guesses there may be 4,000 collaborative law practitioners in the U.S. today.
"This growth says there's an incredible hunger for collaborative approaches in legal disputes," says Anderson. "But with this expansion of vision comes new challenges for the consumer to seek out qualified practitioners, asking how much training they've had, how many collaborative cases they've represented, what their success rate is."
Judge Bertoli likes to joke that one of the things he likes best about collaborative lawyers is how seldom he sees them-in court. "A trial between two adversaries is itself almost an admission of failure," he says. "I'm pleased that the effort to find non-adversarial solutions to legal conflicts is becoming engrained in Sonoma County." He pauses for a moment. "People with different views or needs may cease being spouses or business partners, but they don't stop being human. When respect is given and received at every step on the way to settlement, amazing things can happen."
