By: Darius Pazirandeh, Mediator and Lawyer
If you have been looking at this website thinking "This Collaborative practice sounds great for some people, but you don't know [insert the name of the person with whom you could NEVER collaborate]!", this article is aimed at you. My intent is for you to consider that this person isn't how you think they are.
We tend to see the people in our lives through a filter of what we already believe about them. We then act in a way that is consistent with that belief. The other person does the same thing. We then end up in a "vicious circle" where we keep doing the same things and getting the same results, and wonder why.
For example, consider a couple where one spouse has been working as the breadwinner, and the other spouse has been working as a homemaker and taking care of the children. Both spouses have concluded that the other spouse doesn't appreciate their contribution to the family, and longstanding resentment has led to a breakdown in communication. Each speaks to the other in an accusatory manner, leading the other to respond with defensive accusations, further ingraining the conclusion that they are not appreciated. They are now planning to divorce, but both fear the other will take advantage of them in the divorce.
In traditional litigation much of what the lawyers would do is to argue for their clients - explaining the client's point of view, justifying the client's conduct, and invalidating the other party's point of view and condemning the other party's conduct. The lawyers may come to an agreement about potential resolution of issues of property division, support, and parenting, and suggest this to their clients. The clients may follow through on this resolution. If not, a judge may make a decision, often with significant cost to the party trying to enforce it. Whether the litigants ever understand the other's need for acknowledgment or how they contributed to the conflict is not part of this process.
In a collaborative process, both lawyers will meet with both spouses. Perhaps the spouses in my example will both express their need for acknowledgment of their respective contributions to the family. Once the spouses are able to acknowledge each other for their respective contributions, trust and communication start to re-establish, and they are able to begin negotiating their divorce in a respectful manner. In other words, the spouses go from what they thought they knew - that the other spouse was ungrateful - and acting based on that, to giving up what they thought they "knew", starting to see the possibility of a resolution.
Litigation is a zero-sum process - it is a system which generally produces a winner and a loser. Even when there is a settlement or a compromise, there is still a hidden cost beyond the money, time, and stress of the litigation. It's the cost of our relationships with ourselves and our community. It's the cost of becoming entrenched in a worldview that may not be serving us. It contributes to the illusion that our version of events is true. It hides that much of what we experience of another person is a function of our own beliefs and our own actions towards that other person.
Collaborative law, at its core, transforms the win-lose model in favor of a win-win model. Collaborative lawyers, coaches, and financial experts bring spouses together to discuss their conflict and develop creative solutions that really matter to them. We assist them in understanding each other, and they gain the skills to communicate effectively and avoid or resolve future conflict. Each party emerges from the conflict with an outcome they never thought would be possible based on what they thought they knew before beginning the process.