By Jody Johnson
Litigation and Collaborative Divorce models both involve significant negotiation. Most litigation cases end in a negotiated settlement prior to trial, but the negotiation is frequently under the pressure of looming deadlines, such as temporary hearings, depositions and other discovery deadlines, mediation, and the trial date. The court system is in control, negotiation feels pressured, and it may escalate the conflict between the spouses. The litigation advocates take center stage and the clients are in a more secondary role as they watch their attorneys go at it. Most cases settle, yet clients hire attorneys primarily for their trial skills, not negotiation proficiency. In most instances, the clients are not present for settlement negotiations. It is not uncommon to see attorneys advocate for positions that they think are best for their client, regardless of what the client actually wants or what makes sense.
Collaborative Divorce, on the other hand, does have a structure to move forward, but settlement is not done against the backdrop of a deadline imposed by outsiders. The client takes center stage, and the collaborative attorney needs to develop the following skill set to help the client understand what he needs and why so that the client can actively participate in procuring successful outcomes:
- Listening skills
- Interviewing skills
- Negotiation skills
- Team Player skills
- Defusing skills
The collaborative attorney needs to listen and ask questions to help understand what is important to the client. Negotiating in a collaborative divorce is about looking at the interests of the individual and learning how to actively engage the client in the process of negotiation. Team Player skills involve learning how to work with the other professionals on the team and leverage their talents for the benefit of the client. Finally, the collaborative attorney needs to understand how to provide a safe environment for everyone in the process.
The collaborative attorney is hired specifically to help the client reach an acceptable settlement; the result is that negotiation is focused entirely on the clients’ interests. In part, the attorney advocates for the client by spending time fully understanding the goals, needs, and concerns the client feels necessary to reach a “successful” outcome. In the litigation model, the attorney might find that the client wants a 50/50 time schedule with the children, and argue for that without spending additional time appreciating the nuances of what the client really means by the request, how that might impact the children, the relationship with the other parent, etc. By spending time with the client, the collaborative attorney often finds what it is that the client really wants (e.g. more time to help with homework), and that can be different from what the client really thinks she wants.
The collaborative attorney also advocates for the client by comprehending and acknowledging the needs and desires of the other spouse. By helping the client understand the other spouse, the attorney guides the client to look for “trades” that can be made – giving the other spouse “X” in order to get “Y” for your client. The effective collaborative attorney helps her client realize that agreements are better made when the important needs of each client are met. By doing so, there is a greater chance of finding higher quality settlements for the clients.
Information is important to the settlement process. Therefore, the collaborative attorney collects the information that is necessary for the client to make an informed decision. The utilization of a neutral mental health professional and financial professional also help provide necessary information for the client.
The collaborative attorney also aids the client in developing and evaluating options for settlement, which includes the options available under the law. While the clients are not bound to reach settlements that are within the scope of the law, it is an important piece of information that they need to be aware of and have available for consideration when they look at their settlement options.
Perhaps one of the most important ways in which the attorney advocates for the client is by teaching the client to advocate for him/herself. As a client-centered process, it can be empowering and impactful for a client to actively engage in the negotiation process. An effective attorney will assist the client in absorbing the skills and gaining the confidence to advocate for her/himself.
A Collaborative lawyer can effectively advocate for a client in a manner that is competent and diligent within the ethical obligations of the client. Advocacy within the Collaborative Divorce Process requires an understanding of the ethical duties, incorporating those duties into this new model of practice, and a commitment to expand upon and add to the set of skills that traditional lawyers have learned.