A Day In The Life Of A Collaborative Lawyer

A Day In The Life Of A Collaborative Lawyer When people find out that I am a lawyer, one of the common questions I get is “how do you defend someone who is guilty? I explain that I am not a criminal lawyer; my area of concentration is in matrimonial law.

“What’s that?” some people ask. They truly have never heard the term before. Or if they know that matrimonial law basically means “divorce”, then they say, “Oh I bet you have seen some nasty stuff!” and “I had a friend who went to Court over his divorce and had to give his wife everything , had to pay child support that left him with $300 a month to live on and then had to pay his lawyer over $100,000!” or, “My friend’s uncle’s sister in law left her husband for another woman! He took her to the cleaners! Must’ve had a good lawyer!”

I then explain that I do “nice divorces”; I am a Collaborative Lawyer and Mediator. I reveal that I do not go to Court anymore; that I help clients negotiate solutions that work for both of them.

I usually get accolades for that. Most people can relate. If a person has not experienced the backlash of a nasty divorce themselves, they at least have a friend or family member who has.

But they still don’t understand what it is that I do all day if I don’t go to Court. Not going to Court isn’t sexy. Clever, on your feet retorts, asking that one question that decides the whole case (like in the movies) — now that’s sexy!

But what is a negotiation? they wonder. How does that work? The next concept that flashes across their minds is the kind of negotiation some people do when they buy a car. They will offer humorous personal anecdotes. “When I bought my car, I was a pretty keen negotiator! I was really prepared to pay $40,000, but I started at $30,000 and got it for $35,000! I got a terrific deal!” There is a pause, then, “ Why do you need a law degree to negotiate?”

So what does a Collaborative Lawyer/Mediator do all day?

I get in to my office at about 8 a.m. I spend the first half hour looking through emails, checking somepersonal websites/talk groups I participate in, reviewing correspondence and preparing for the day. If I have two Collaborative meetings or mediations, that pretty much takes up the rest of my day. A Collaborative meeting will normally begin at 9:30 a.m. and go until 12 noon, or at 1:30 and go until 4 p.m. With two meetings a day, there is no time left for anything except a quick review of files, correspondence, and maybe the odd quick telephone call.

So what happens in the meetings? It depends what stage of the process we are in. If it is the first meeting, we will be reviewing the Collaborative Commitment Agreement or the Mediation Agreement which sets out the rules and what the process will look like. Then we will explore the goals that the clients are wishing to accomplish as well as the questions they need to answer in order to complete their negotiations. Sometimes we will get all of that done in one meeting; sometimes not. At every meeting we ask clients if they have any pressing issues (i.e.) something emergent that they need to deal with without delay. Pressing issues can take a considerable amount of time.

The next logical step in the meeting is to gather information. This means that we actually sit down, look at all of the documents and record the information on our flipcharts. We gather information about assets and debts, income and expenses, and the children. Only when the information is all gathered do we start looking at choices. That is the penultimate step – to create and evaluate choices, and reach agreement. The final step is for the lawyers to create legally binding documents to give legal effect to the agreements reached.

In between Collaborative meetings, the Minutes of the meeting have to be drafted and prepared. The meetings have to be co-ordinated. Sometimes there are pressing issues or emergencies that arise between meetings that require a flurry of telephone calls or emails.

If I am doing a Mediation, I do not meet with the clients in advance of the Mediation for a preparation session. However, on Collaborative files I spend about 2 hours with each client reviewing the process, the Commitment Agreement and what to expect in the meetings. There is also a lawyer-lawyer preparation meeting on each Collaborative file.

My time is also spent in “first consultations”. A first consultation is when a new client is coming in to see me (or an old client on a new matter). They have not yet chosen a process. I have each new client complete a fairly detailed questionnaire in advance, which I review before I meet with them. This allows me to focus on their questions rather than spend the first hour of the meeting gathering basic information that is necessary to give relevant legal advice.

Even so, first consultations often take at least 2 hours. I have a well thought out package (the result of the collaboration and co-operation of the Collaborative lawyers in my community), which I go through with my clients. The package is designed to answer almost every question a new client might have about their options and some general legal advice. They get to take the package of information home, and it serves as an excellent reference for them.

Sometimes clients come in with agreements already made and they just need me to make them legally binding. Sometimes I do pre-marriage, marriage or cohabitation contracts.

About 90% of my work is matrimonial. I do the odd real estate file, a Will here and there, and the occasional Estate. So I might be meeting with clients or reviewing documents or correspondence for one of those files.

Sometimes I write personal emails or work on marketing or professional development. Sometimes I chat with my assistant, or one of the other lawyers in my office. Sometimes I call my parents.

Occasionally I will do a Sudoku puzzle.

What I do each and every day can perhaps best be explained by what I DON’T do.

I don’t:

Bluff in conversations with other lawyers
Argue about the merits of my client’s case with another lawyer
Speak to anyone in positional terms
Strategically prepare Affidavits or sworn statements for Court
Bluff in conversations with my clients about their “positions” or guarantee results for them
Argue anything in Court
Go to Court at all, even for consent Orders – a more efficient way is to simply send the Consent
Order down to the Courthouse with a brief written submission

And what I do can also be explained by how I feel.

I feel:

At ease with myself and my colleagues (I really like them!!)
Like I am truly helping clients by encouraging them to take responsibility for their own problems rather than accepting the burden on my shoulders
Like I can sleep at night – I rarely lie awake at night stewing about a file
Like I leave my work where it belongs – at work!! — and have time and energy for my family and personal life
Like every day I learn more about the unique, beautiful qualities people have, and their capacity to love and compromise
That I am learning more about myself and my capacity to compromise
That I have grown as a compassionate human being
Like I can freely admit when I’m wrong without looking stupid
That I understand and truly have empathy for my clients
That I have learned how to better express myself by focusing on how I feel (I am becoming really good at “I” messages in my every day life and in promoting them amongst my family and friends)
Happy and fulfilled in my career – this is what I meant when I was 20 years old, and idealistic about going to law school to help others

All of this is difficult to explain to the stranger seated next to you in an airplane who is making small talk.

Say “lawyer” and the average person thinks “slippery, smooth and argumentative”. Say “female lawyer” and the average person thinks “slippery, smooth and argumentative barracuda”.

I am not . . . a barracuda.

I AM A COLLABORATIVE LAWYER

I AM A MEDIATOR

I AM HUMAN

Marilyn Herrmann is a Mediator and Collaborative Lawyer who is a partner at Niblock and Company LLP in Medicine Hat, Alberta. She has a self-declared bias against family law matters being resolved in the Court system, and believes that conflict does irreparable harm to families. Marilyn is interested in any method that can help divorcing parents re-structure their families in a respectful, amicable way. Feel free to share your comments and ideas with Marilyn at mherrmann@niblock.ca