People often ask me: "which cases might be appropriate for a Collaborative Divorce?" They are sometimes surprised when I tell them that divorces with a moderate or even significant level of conflict are often appropriate divorces for the Collaborative process. Perhaps the most essential requirement is that both spouses be committed to resolving their dispute themselves, and willing to engage with integrity in the process to accomplish an optimal outcome consistent with their values. The commitment of the parties is as paramount to the suitability of the Collaborative Divorce process as is the training and experience of the lawyers and other professionals.
But which divorces might not be appropriate for a Collaborative Divorce? There are "red flags" for which Collaborative Divorce lawyers watch.
The most obvious red flag would be those divorces where there is active coercive-type domestic violence or where equivalent coercion and control is present, and cases involving substance abuse, or where mental illness is present. Some believe those cases are never appropriate for a Collaborative Divorce. Others believe a few of those types divorce cases may be suitable for a Collaborative Divorce unless certain conditions are met, for example (a) both parties fully acknowledging and accepting the depth of the problem, (b) an appropriate treatment plan for is in effect and monitored, (c) a highly experienced Collaborative Divorce professional team is in place (lawyers, coaches, financial, child specialist, etc.), (d) an assessment as to suitability, and (e) the parties willing to have a lot of patience. Similar conditions might be appropriate for divorces involving substance abuse or mental health problems. Even when the spouses are fully committed and appropriate treatment is in place, those cases will likely be highly challenging in the Collaborative Divorce context.
Other divorces that raise concerns include those when a client wishes to enter the process for a dishonest purpose, such as to use the process to undue advantage or otherwise undermine the objectives of the Collaborative Participation Agreement. A Collaborative Divorce is unsuitable for clients who are unwilling or unable to respectfully participate in joint sessions, and those unwilling to abide by similar boundaries in-between the joint sessions. Clients engaging in the Collaborative Divorce process must also have at least a small amount of trust that the other will be participating in good faith in the process, even if there may be significant conflict.
The good news is that a Collaborative Divorce is suitable for most people. The dysfunctions that would exclude people affect only a minority of the population. If the spectrum of divorcing clients is depicted by a bell curve, with no-conflict cases on one end and highly conflicted cases on the other, then the vast majority of cases -- those that are solidly in the center of the bell curve -- are suitable for a Collaborative Divorce. For those who are suitable and who choose a Collaborative Divorce, it can be a life-changing experience for the better.
July 3, 2009
May 1, 2009
Video Interview about Collaborative Divorce
We live in an age of ever-increasing media options. At one time, video production was largely available only at great cost. Nowadays, websites on the Internet seem to be using videos as a means of disseminating information.
The Collaborative Divorce field is no exception. There are a number of good videos about Collaborative Divorce that link from the website of the IACP.
My colleague Holly Hohlbein and I have now joined this new medium of of the Internet video. We were recently interviewed about Collaborative Law by Bellevue career counselor Jan Reha, who uses these videos to educate consumers about her services and related topics. Recorded in a conference room in her office a week or so ago, it has already been posted on the Internet. This is an interesting new world.
For our first video appearance, see here:
The Collaborative Divorce field is no exception. There are a number of good videos about Collaborative Divorce that link from the website of the IACP.
My colleague Holly Hohlbein and I have now joined this new medium of of the Internet video. We were recently interviewed about Collaborative Law by Bellevue career counselor Jan Reha, who uses these videos to educate consumers about her services and related topics. Recorded in a conference room in her office a week or so ago, it has already been posted on the Internet. This is an interesting new world.
For our first video appearance, see here:
April 24, 2009
15 Seconds of Fame
If Andy Warhol was correct that everyone will have their 15 minutes of fame, it seems that Collaborative Divorce is getting its share. Nowadays, people no longer look at me funny when I tell them I'm a Collaborative Divorce lawyer -- I am more likely to hear something like: "Oh, isn't that the friendly divorce? I heard something about that. Cool!" I never remember anyone previously telling me that my profession as a divorce lawyer was "cool." This really is different. More and more, it seems that people are learning about the many benefits of the Collaborative Divorce model.
This is no doubt due in part to the buzz of the many successful Collaborative Divorce cases. It sometimes seems that a day doesn't go by without another article somewhere about Collaborative Divorce. So it was that a friend of mine told me that she had read about one of my clients in the April issue of Seattle Woman Magazine. "Really?" I asked, as I made a mental note that I needed to look up that article. So it was that I learned that one of my cases had become part of the 15 minutes of fame of the Collaborative Divorce movement. Here is the link: Harmonic Divergence: A Win-Win Way to Divorce. It was really nice hearing about my client's wonderful experience.
More ink was spilled in April on the benefits of Collaborative Divorce in an article I wrote for the King County Bar Bulletin: Offering Families a Chance at a Better Divorce. My article was focused on helping other lawyers -- divorce lawyers and non-divorce lawyers alike -- learn about some of the significant structural advantages of the Collaborative Divorce process in helping clients divorce.
This is no doubt due in part to the buzz of the many successful Collaborative Divorce cases. It sometimes seems that a day doesn't go by without another article somewhere about Collaborative Divorce. So it was that a friend of mine told me that she had read about one of my clients in the April issue of Seattle Woman Magazine. "Really?" I asked, as I made a mental note that I needed to look up that article. So it was that I learned that one of my cases had become part of the 15 minutes of fame of the Collaborative Divorce movement. Here is the link: Harmonic Divergence: A Win-Win Way to Divorce. It was really nice hearing about my client's wonderful experience.
More ink was spilled in April on the benefits of Collaborative Divorce in an article I wrote for the King County Bar Bulletin: Offering Families a Chance at a Better Divorce. My article was focused on helping other lawyers -- divorce lawyers and non-divorce lawyers alike -- learn about some of the significant structural advantages of the Collaborative Divorce process in helping clients divorce.
February 26, 2009
Collaborative Divorce Law as a Historical Development
In terms of legal history, divorce is a relatively new concept. Only after the gradual acceptance of marriage as a civil contract (as opposed to a religious undertaking), were divorce legal systems developed in the civil courts. Before then, marriage matters were ecclesiastical in nature.
American divorce law was not part of the common law; in England, divorce could only be granted by an Act of Parliament. It was not until 1858, long after the American Revolution, that divorce could be granted by English courts. Applying religious law or doctrine, ecclesiastical courts could only grant annulments (as if the marriage never happened) or separations that did not allow parties to remarry.
The first divorce statutes in the United States were developed beginning in 1870. No-fault divorce was not introduced in the United States until 1969 in California. Washington's no-fault divorce statute was adopted in 1973. Prior to the adoption of no-fault laws, divorces could only be granted on proof of reasons for divorce, such as adultery, cruelty, or abandonment.
The concept of fault as a ground for divorce was a key factor in placing divorce decisions in the courts. Courts were deemed well-positioned to weigh the evidence to determine if there was adequate proof of "fault" for which the divorce could be granted. Using courts for the newly-created remedy of divorce was perfect for the morals of the late 1800s.
While perhaps adequate at determining fault -- "guilt," as it were, for divorce -- courts were never designed to restructure families. Neither judges nor lawyers were generally trained in family systems, instead focusing on making standardized decisions based on the mores of the time.
Although history and society has changed, legal decisions concerning divorces with the courts, even though fault-based systems have long been abrogated. Yet, despite divorces becoming more routine, and society changing, inherent structure of the divorce court has not changed since first established, even if the laws have.
In the United States, the structure of courts is adversarial -- the theory being that both sides present their cases, and the court is to determine the truth based on those presentations. Unfortunately, the structure of the adversarial system is less than conducive to helping people through what has become a normal, routine, life transition, and makes it difficult or impossible for attorneys to act in sufficient coordination to contain conflict and thereby assist parties in providing a better resolution.
One of the responses to the structural limitations of the adversarial legal system for divorce has been the development of Collaborative Law. Collaborative Law contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the Collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work towards satisfying those interests. Collaborative Law is a formal process in which both clients are represented by attorneys who are trained in the process and its procedures to allow clients to safely move through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing the legal, parenting, and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.
Currently, there are only a handful of law schools that offer Collaborative Law as part of their curricula. For most of us, the process and techniques that are used in Collaborative Law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed in Collaborative Law practice, conventional legal training and experience does not prepare attorneys to work within the formal Collaborative Divorce process structure.
For more information about Collaborative Divorce, visit www.mark-weiss.com
American divorce law was not part of the common law; in England, divorce could only be granted by an Act of Parliament. It was not until 1858, long after the American Revolution, that divorce could be granted by English courts. Applying religious law or doctrine, ecclesiastical courts could only grant annulments (as if the marriage never happened) or separations that did not allow parties to remarry.
The first divorce statutes in the United States were developed beginning in 1870. No-fault divorce was not introduced in the United States until 1969 in California. Washington's no-fault divorce statute was adopted in 1973. Prior to the adoption of no-fault laws, divorces could only be granted on proof of reasons for divorce, such as adultery, cruelty, or abandonment.
The concept of fault as a ground for divorce was a key factor in placing divorce decisions in the courts. Courts were deemed well-positioned to weigh the evidence to determine if there was adequate proof of "fault" for which the divorce could be granted. Using courts for the newly-created remedy of divorce was perfect for the morals of the late 1800s.
While perhaps adequate at determining fault -- "guilt," as it were, for divorce -- courts were never designed to restructure families. Neither judges nor lawyers were generally trained in family systems, instead focusing on making standardized decisions based on the mores of the time.
Although history and society has changed, legal decisions concerning divorces with the courts, even though fault-based systems have long been abrogated. Yet, despite divorces becoming more routine, and society changing, inherent structure of the divorce court has not changed since first established, even if the laws have.
In the United States, the structure of courts is adversarial -- the theory being that both sides present their cases, and the court is to determine the truth based on those presentations. Unfortunately, the structure of the adversarial system is less than conducive to helping people through what has become a normal, routine, life transition, and makes it difficult or impossible for attorneys to act in sufficient coordination to contain conflict and thereby assist parties in providing a better resolution.
One of the responses to the structural limitations of the adversarial legal system for divorce has been the development of Collaborative Law. Collaborative Law contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the Collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work towards satisfying those interests. Collaborative Law is a formal process in which both clients are represented by attorneys who are trained in the process and its procedures to allow clients to safely move through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing the legal, parenting, and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.
Currently, there are only a handful of law schools that offer Collaborative Law as part of their curricula. For most of us, the process and techniques that are used in Collaborative Law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed in Collaborative Law practice, conventional legal training and experience does not prepare attorneys to work within the formal Collaborative Divorce process structure.
For more information about Collaborative Divorce, visit www.mark-weiss.com
January 1, 2009
Divorce in the New Year
Most divorce lawyers experience an upsurge in calls from clients after the holidays. Although the new year is just starting, it looks like 2009 will have the familiar uptick in client calls in January. For me, a number of people have called as early as November to make appointments to see me in January. It seems that many couples try to hold things together for their families for the holidays. Those who do well are able to give their family a nice holiday; others are less successful, with the knowledge that the great unknown of a divorce is looming.
What may make things more challenging this year is the economic turndown. It is not known whether the economic conditions will cause an overall increase or decrease in the divorce rate. Some couples teetering on divorce may want to "tough it out" because of their economic situation. Others may feel that the economic stress only exacerbates anxieties in their relationship. We can all hope that a silver lining of the economic downturn will be that more couples will seek out counseling before making a divorce decision, to be sure that they are truly making the best decision for themselves.
Rapidly changing asset values certainly add a wrinkle to divorce settlements. Last week, I mediated a young family's divorce settlement; the main question for them was how to best divide the debt and avoid bankruptcy. They did a good job in the mediation and made some very difficult decisions that required each to reflect on how they got to where they were. I believe we will be seeing more of those cases, especially since a large part of the economic conditions seem to have resulted from over-borrowing and an over-extension of easy credit.
In other cases, I have seen how carefully planned finances have needed to be redone based on changed conditions. For many who divorce, the most important thing is to be able to own a house or condominium. When both parties seek to own their own dwellings, all try to do more with the finite assets and income that exists. When the value of investments decrease, making an adequate down payment becomes more difficult. Tightened credit availability increases the necessity for an adequate down payment. The squeeze is easy to see. So far, there has been no bail-out on the Main Street of divorce. Yet, declining real estate values may well help these couples, although the decreases in the Seattle area have neither been as rapid nor with the dramatic swings as seen on Wall Street.
I believe that all this makes it even more important for lawyers, financial specialists, and other divorce professionals to do good work. With fewer assets with which to work, it becomes more important to try to help people efficiently and to identify the opportunities that exist. I have long believed that the role of the lawyer is to help clients by assisting with problem-solving, rather than problem-creating. To me, that includes providing information and engaging in inquiry with the client, to ensure that the client understands the impact and wisdom of his or her initial decision.
The value I try to bring top my clients is by helping and empowering them to arrive at the best solutions they can for their problems. To me, that does not mean seeking compromise from values. I view the compromise of values as an obstacle to conciliation, an enemy to resolution, and inherently disempowering. Instead, my goal is to help clients advance their highest interests by helping them truly identifying their values, needs and goals and reaching conciliation by honoring and working towards those values, needs, and goals.
On this New Year's Day, a day for new resolutions for many, it is good for me to re-commit to helping people problem-solve, make peace, and conciliate. Happy New Year.
What may make things more challenging this year is the economic turndown. It is not known whether the economic conditions will cause an overall increase or decrease in the divorce rate. Some couples teetering on divorce may want to "tough it out" because of their economic situation. Others may feel that the economic stress only exacerbates anxieties in their relationship. We can all hope that a silver lining of the economic downturn will be that more couples will seek out counseling before making a divorce decision, to be sure that they are truly making the best decision for themselves.
Rapidly changing asset values certainly add a wrinkle to divorce settlements. Last week, I mediated a young family's divorce settlement; the main question for them was how to best divide the debt and avoid bankruptcy. They did a good job in the mediation and made some very difficult decisions that required each to reflect on how they got to where they were. I believe we will be seeing more of those cases, especially since a large part of the economic conditions seem to have resulted from over-borrowing and an over-extension of easy credit.
In other cases, I have seen how carefully planned finances have needed to be redone based on changed conditions. For many who divorce, the most important thing is to be able to own a house or condominium. When both parties seek to own their own dwellings, all try to do more with the finite assets and income that exists. When the value of investments decrease, making an adequate down payment becomes more difficult. Tightened credit availability increases the necessity for an adequate down payment. The squeeze is easy to see. So far, there has been no bail-out on the Main Street of divorce. Yet, declining real estate values may well help these couples, although the decreases in the Seattle area have neither been as rapid nor with the dramatic swings as seen on Wall Street.
I believe that all this makes it even more important for lawyers, financial specialists, and other divorce professionals to do good work. With fewer assets with which to work, it becomes more important to try to help people efficiently and to identify the opportunities that exist. I have long believed that the role of the lawyer is to help clients by assisting with problem-solving, rather than problem-creating. To me, that includes providing information and engaging in inquiry with the client, to ensure that the client understands the impact and wisdom of his or her initial decision.
The value I try to bring top my clients is by helping and empowering them to arrive at the best solutions they can for their problems. To me, that does not mean seeking compromise from values. I view the compromise of values as an obstacle to conciliation, an enemy to resolution, and inherently disempowering. Instead, my goal is to help clients advance their highest interests by helping them truly identifying their values, needs and goals and reaching conciliation by honoring and working towards those values, needs, and goals.
On this New Year's Day, a day for new resolutions for many, it is good for me to re-commit to helping people problem-solve, make peace, and conciliate. Happy New Year.
November 1, 2008
Getting Good Advice
In addition to practicing collaborative divorce law, I also train lawyers and other in the collaborative law model. At a recent introductory training for collaborative law, a participant asked whether collaborative divorce attorneys should refer clients to litigation attorneys to advise them as to what might happen if their case was litigated. I found the question very interesting. Subsumed in the question was the assumption or belief that litigators were best positioned to predict likely outcomes in court.
I often say that clients should not seek advice on collaborative law from lawyers who have not received training in collaborative law. The reason is because the collaborative law model is so different from conventional legal representation, that the collaborative law model is not well understood without training. However, all collaborative law attorneys have been trained in conventional representation, including litigation. In fact, collaborative law attorneys must be able to advise their clients about the law, drawing on the same resources and analysis as conventional attorneys. Collaborative divorce attorneys need to be as up-to-date and skilled at the law as any other attorneys. The difference is in the process and the way the information is used.
Yet, the questioner had an interesting point. There is an old saying that "a good lawyer knows the law, but a great lawyer knows the judge." In divorce and family law in particular, broad equitable principles are applied to decide cases. Since those principles are imprecise at best, and the application can vary depending on the local judge, there is definite value to familiarity with local judicial views. In counties with one or two judges, that can be done.
However, in large counties, having that degree of knowledge about specific ways judges might make a decision on an equitable matter is very difficult or impossible, since there can be too many judges and too few data points. In King County, where I practice, there are over 50 Superior Court judges, and it is extremely difficult to get that degree of knowledge -- there are simply too many data points (Judges) and too few contacts per data point for most lawyers to assemble a cohesive perspective of the many different judges.
Interestingly to non-lawyers is the fact that most divorce lawyers do not have frequent trials. Most litigators whom I know have maybe one to three trials per year. The contacts that most lawyers have with the court is on temporary motions, with different judicial officers applying different laws based on different standards and different considerations. It is problematic to extrapolate from Commissioners' calendars for temporary orders to final orders from Judges following trial.
The litigating divorce attorney will look at a case from the perspective of evidence and persuading a judge, which is a different perspective from that applied by a Collaborative Divorce lawyer. While I believe that Collaborative Divorce lawyers can and should be able to provide good advice as to the law, it remains an interesting question to me more because of the different perspective, rather than any possible substantive difference.
I often say that clients should not seek advice on collaborative law from lawyers who have not received training in collaborative law. The reason is because the collaborative law model is so different from conventional legal representation, that the collaborative law model is not well understood without training. However, all collaborative law attorneys have been trained in conventional representation, including litigation. In fact, collaborative law attorneys must be able to advise their clients about the law, drawing on the same resources and analysis as conventional attorneys. Collaborative divorce attorneys need to be as up-to-date and skilled at the law as any other attorneys. The difference is in the process and the way the information is used.
Yet, the questioner had an interesting point. There is an old saying that "a good lawyer knows the law, but a great lawyer knows the judge." In divorce and family law in particular, broad equitable principles are applied to decide cases. Since those principles are imprecise at best, and the application can vary depending on the local judge, there is definite value to familiarity with local judicial views. In counties with one or two judges, that can be done.
However, in large counties, having that degree of knowledge about specific ways judges might make a decision on an equitable matter is very difficult or impossible, since there can be too many judges and too few data points. In King County, where I practice, there are over 50 Superior Court judges, and it is extremely difficult to get that degree of knowledge -- there are simply too many data points (Judges) and too few contacts per data point for most lawyers to assemble a cohesive perspective of the many different judges.
Interestingly to non-lawyers is the fact that most divorce lawyers do not have frequent trials. Most litigators whom I know have maybe one to three trials per year. The contacts that most lawyers have with the court is on temporary motions, with different judicial officers applying different laws based on different standards and different considerations. It is problematic to extrapolate from Commissioners' calendars for temporary orders to final orders from Judges following trial.
The litigating divorce attorney will look at a case from the perspective of evidence and persuading a judge, which is a different perspective from that applied by a Collaborative Divorce lawyer. While I believe that Collaborative Divorce lawyers can and should be able to provide good advice as to the law, it remains an interesting question to me more because of the different perspective, rather than any possible substantive difference.
July 5, 2008
Lawyers and Dispute Resolution
Like all other professions, lawyering is becoming more and more specialized. As time marches on, so has specialization. Over the past twenty years or so, the new field of alternative dispute resolution ("ADR") has emerged. ADR is really a misnomer -- "alternative" means other than the courts, which most responsible people have always viewed as the last resort for resolving disputes between private parties.
While the notion that settlement is preferred to litigation may be as old as the law itself, the concept of ADR as a formal discipline is quite new. This discipline includes the study and analysis of human conflict. Students learn about conflict and personality styles, and how to integrate various assessment, intervention, and dispute resolution techniques. This emerging field is beginning to draw from other disciplines, including psychology and physiology. There are several major centers that research, study, and teach the resolution of human conflict through ADR. Some of the most famous centers are at law schools, such as at Harvard and Pepperdine University Law Schools. The Harvard Program on Negotiation has even generated best-sellers for the general public such as the ground-breaking works Getting to Yes, and Difficult Conversations.
Unfortunately, there are only a handful of such centers. In fact, classes in ADR were not even offered in many law schools until ten years or so ago. Even today, those classes remain electives in many, if not most, law schools. The primary focus of most law schools continues to be on the useful skills of how courts interpret the law, how to procedurally maneuver through the courts in lawsuits, and adversarial advocacy. Unless deliberately sought out by students, legal education minimally focuses on helping clients solve problems, let alone current ADR techniques.
While most ethical lawyers seek to avoid going to trial whenever viewed as possible, most also lack formal education or any breadth of experience in ADR. Most lawyers settle their cases in one of the time-honored adversarial ways of our parents: by reluctantly compromising from ideal or desired divergent positions, by overpowering those less sophisticated or powerful, or by having decisions or recommendations made by private "rent a judges" through arbitrations. While such methods were perhaps state-of-the-art fifty years ago (and continue to have their place today), knowledge has significantly advanced, and such methods are far less than optimal for most conflicts. The old methods often even contain the seeds for future conflict. Ironically, many routine actions by adversarial lawyers can have the unintended consequence of fueling conflict and making cases more difficult to efficiently settle. This is not intentional, but due to shortfalls in legal training and knowledge.
Like all people, when lawyers without formal ADR education hear about other ADR alternatives -- such as interest-based mediation and collaborative law -- they make assumptions based on incomplete information. Many hear the words and think it is the same as what they already do, or that such methods do not adequately help their clients. In fact, interest-based ADR differs substantially from what adversarial lawyers do, and can help clients reach significantly better resolutions than is possible in an adversarial process.
Perhaps in part because the legal profession is largely unfamiliar with interest-based ADR, many non-lawyer mediators offer services using interest-based ADR techniques. Additionally, it takes substantial education, time, and practice to gain skill in ADR techniques -- for most, the techniques are very much like mastering a foreign language. The best of these non-lawyer mediators are extraordinary individuals who bring enormous skill and great care to their work. However, there are also many mediators who inadvertently cause their clients legal damage, and who may be unaware of significant legal consequences and effects due to their lack of legal education and experience. And, clients may not be aware of the legal effects of their decisions, because mediators are generally prohibited from giving advice.
The various ways to address disputes can have significant legal consequences. Arriving at an optimal outcome may well require the substantive and technical skills and knowledge that an experienced attorney has. For example, there is often an agreement reached when people resolve their dispute. This agreement is a legal document that can have far-reaching repercussions, and which may require substantial technical know-how to properly draft so the agreement is clear, can be implemented, and does not have unintended consequences. The settlement may have built-in legal landmines that an attorney could point out; and, if not properly prepared, the agreement may not be enforceable. There are significant benefits from substantive legal advice.
The challenge for the consumer who seeks an interest-based resolution to his/her dispute is how to benefit from the substantive technical legal skills and advice of a qualified attorney, and also benefit from the ADR skills of a skilled practitioner in ADR techniques. Both skill sets take education and years of experience to master. Sadly, the most experienced lawyers are likely the ones least likely to have any formal education in ADR.
The challenge for the informed consumer seeking to resolve a dispute that has legal consequences is to find the best skill set (or combination of skill sets) for his or her needs. If the consumer wishes to pursue interest-based mediation, he or she should likely have an attorney (even one not trained in ADR) to provide legal advice, and to prepare legal documents. Better yet, the consumer will locate an attorney who has both substantial experience and skill in substantive law, and substantial education and experience in interest-based ADR such as mediation and collaborative law.
As ADR becomes more known, available, and regularly practiced in the legal community, this combination of skill sets will likely become more widely available. Until then, the consumer who wishes to most effectively use ADR processes too often faces a deficit in professionals in one of two categories: (1) competency in ADR skills that take years to develop, and (2) solid, sophisticated, substantive legal skills that also take years to develop. Until more gain both important needed skill sets, the careful consumer of dispute resolution services should try to learn as much as possible, ask potential service providers as many questions as possible about their experience and education, and to always abide by the adage caveat emptor (buyer beware).
While the notion that settlement is preferred to litigation may be as old as the law itself, the concept of ADR as a formal discipline is quite new. This discipline includes the study and analysis of human conflict. Students learn about conflict and personality styles, and how to integrate various assessment, intervention, and dispute resolution techniques. This emerging field is beginning to draw from other disciplines, including psychology and physiology. There are several major centers that research, study, and teach the resolution of human conflict through ADR. Some of the most famous centers are at law schools, such as at Harvard and Pepperdine University Law Schools. The Harvard Program on Negotiation has even generated best-sellers for the general public such as the ground-breaking works Getting to Yes, and Difficult Conversations.
Unfortunately, there are only a handful of such centers. In fact, classes in ADR were not even offered in many law schools until ten years or so ago. Even today, those classes remain electives in many, if not most, law schools. The primary focus of most law schools continues to be on the useful skills of how courts interpret the law, how to procedurally maneuver through the courts in lawsuits, and adversarial advocacy. Unless deliberately sought out by students, legal education minimally focuses on helping clients solve problems, let alone current ADR techniques.
While most ethical lawyers seek to avoid going to trial whenever viewed as possible, most also lack formal education or any breadth of experience in ADR. Most lawyers settle their cases in one of the time-honored adversarial ways of our parents: by reluctantly compromising from ideal or desired divergent positions, by overpowering those less sophisticated or powerful, or by having decisions or recommendations made by private "rent a judges" through arbitrations. While such methods were perhaps state-of-the-art fifty years ago (and continue to have their place today), knowledge has significantly advanced, and such methods are far less than optimal for most conflicts. The old methods often even contain the seeds for future conflict. Ironically, many routine actions by adversarial lawyers can have the unintended consequence of fueling conflict and making cases more difficult to efficiently settle. This is not intentional, but due to shortfalls in legal training and knowledge.
Like all people, when lawyers without formal ADR education hear about other ADR alternatives -- such as interest-based mediation and collaborative law -- they make assumptions based on incomplete information. Many hear the words and think it is the same as what they already do, or that such methods do not adequately help their clients. In fact, interest-based ADR differs substantially from what adversarial lawyers do, and can help clients reach significantly better resolutions than is possible in an adversarial process.
Perhaps in part because the legal profession is largely unfamiliar with interest-based ADR, many non-lawyer mediators offer services using interest-based ADR techniques. Additionally, it takes substantial education, time, and practice to gain skill in ADR techniques -- for most, the techniques are very much like mastering a foreign language. The best of these non-lawyer mediators are extraordinary individuals who bring enormous skill and great care to their work. However, there are also many mediators who inadvertently cause their clients legal damage, and who may be unaware of significant legal consequences and effects due to their lack of legal education and experience. And, clients may not be aware of the legal effects of their decisions, because mediators are generally prohibited from giving advice.
The various ways to address disputes can have significant legal consequences. Arriving at an optimal outcome may well require the substantive and technical skills and knowledge that an experienced attorney has. For example, there is often an agreement reached when people resolve their dispute. This agreement is a legal document that can have far-reaching repercussions, and which may require substantial technical know-how to properly draft so the agreement is clear, can be implemented, and does not have unintended consequences. The settlement may have built-in legal landmines that an attorney could point out; and, if not properly prepared, the agreement may not be enforceable. There are significant benefits from substantive legal advice.
The challenge for the consumer who seeks an interest-based resolution to his/her dispute is how to benefit from the substantive technical legal skills and advice of a qualified attorney, and also benefit from the ADR skills of a skilled practitioner in ADR techniques. Both skill sets take education and years of experience to master. Sadly, the most experienced lawyers are likely the ones least likely to have any formal education in ADR.
The challenge for the informed consumer seeking to resolve a dispute that has legal consequences is to find the best skill set (or combination of skill sets) for his or her needs. If the consumer wishes to pursue interest-based mediation, he or she should likely have an attorney (even one not trained in ADR) to provide legal advice, and to prepare legal documents. Better yet, the consumer will locate an attorney who has both substantial experience and skill in substantive law, and substantial education and experience in interest-based ADR such as mediation and collaborative law.
As ADR becomes more known, available, and regularly practiced in the legal community, this combination of skill sets will likely become more widely available. Until then, the consumer who wishes to most effectively use ADR processes too often faces a deficit in professionals in one of two categories: (1) competency in ADR skills that take years to develop, and (2) solid, sophisticated, substantive legal skills that also take years to develop. Until more gain both important needed skill sets, the careful consumer of dispute resolution services should try to learn as much as possible, ask potential service providers as many questions as possible about their experience and education, and to always abide by the adage caveat emptor (buyer beware).
Subscribe to:
Posts (Atom)
