Is a Collaborative Lawyer a Real Lawyer?

Is a Collaborative Lawyer a Real Lawyer? One of the reasons I became a lawyer was to help others problem solve. I have always had fairly good problem solving skills. My Management and Philosophy degrees only enhanced these skills. I think that Law School theory has it right. By continual case studies we learned to hone our problem solving skills even more. We learned to dissect each case into 4 typical headings (and in this order): issue(s), facts, decision and reasons. We learned to critique the decisions, to compare them with others and to problem solve for fact situations given to us in examination questions.

I graduated from Law School with not only my LL.B., but also with finely honed problem solving skills.

Then came articles. This involved learning the Rules of Court, researching law and preparing opinions for the big-wigs, learning firm politics, mastering how to maximize billable hours, appreciating how to butter up the Court Clerks and secretaries, trying to (clumsily) interview a client if you were lucky enough to actually have a client and worrying about whether or not you’d have a job after your articles. Where was the problem solving?

It seemed like all I did in my articles was a series of unrelated tasks that had little to do with problem solving.

But these tasks had to be done, and, let’s face it, they weren’t boring. They were just not what I had expected.

After articles came the “real world” — at least for me. I leaped into the world of the small law practice. No big corporate clients. No client paid trips. No assurance that if you did the work you’d get paid, but hard and heavy slugging in the trenches . . . learning about firm budgets and pulling your weight, learning about the business of the practice of law.

The real world for me involved a lot of matrimonial law. I learned how to do matrimonial law in the Courts (or in the shadow of the Courts). I learned how to use the Rules of Court, what applications to bring when, what facts were necessary in an Affidavit and how to best put my client’s case forth so that we’d win. After all, that’s what happens in Court – someone wins and someone loses. I used to return to my office from Court either as high as a kite or kicking and swearing.

After awhile it became apparent to me that even if my client “won” in Court, he or she lost. The stress of having to go to Court often hurt them – financially, emotionally and socially. The animosity generated and fueled by competing Affidavits further alienated him or her from their spouse (who, let’s not forget, was the other parent of their children. And if they didn’t have children, this was someone they had pledged to honour and respect for their lives. This was someone he or she had exchanged bodily fluids with, and shared the most intimate of dreams, feelings and life experiences with.)

Even when they “won”, their spouse was not happy with the result and either appealed or failed to comply with the Order and we would be back in Court. More money spent in legal fees. More stress. More animosity. More alienation.

So what was wrong here? Not only did the clients lose, but their children also lost. Their parents were often more focused on fighting with each other than loving their children. Often the children became intermediaries for their parents (something that has to have a lasting injurious effect on them). Sometimes the children were only able to have a relationship with one of the parents. Often both mom and dad could not attend the same school activity or sporting event, because they’d resort to name calling or other childish behaviour.

How was I using my problem solving skills to help these people?

I was (or the Court process was) in some cases causing more problems for these people. It ate away at me.

In the 1990′s, only a few years into my practice, I became a Mediator, finally learning a practical process conducive to problem solving. I thought it would revolutionize my practice, but it didn’t. The other party could not be forced to attend Mediation and most of my cases still ended up in the Courts or being resolved by positional bargaining as we slid towards Court. I tried my best to negotiate — all the while having taking steps for my client that were designed with the Court as the final decision maker. And as we well know, you are not serving your client well if you are negotiating “nicely” and the other lawyer isn’t so inclined. And although I used my Courtroom skills in the Courtroom, I was really not problem solving. I was fighting. I was part of the conflict.

There were lawyers I could not talk to on the phone because of their adversary natures or because we simply could not have a rational discussion. There were lawyers I did not trust. There were lawyers I liked and trusted but still had positional disagreements with.

I let my clients transfer their problems to my shoulders. The problem solver in me wanted to fix their problems for them. I accepted responsibility for their problems. I shouldered their problems. I took their problems to Court and argued for them as passionately as if they were my problems. Some of my clients were happy; some of them weren’t. Most of them hated the legal system they were forced to follow. Most of them did not understand that “justice” is a relative, subjective concept, especially in morning Chambers. Most of them did not understand why a Judge in morning Chambers would not necessarily read his or her Affidavit in advance. They did not understand that I could not reliably predict what would happen in his/her case if we went to Court.

I felt like I was spending my legal career selling. I’d try to sell my client’s case to the Judge. I’d try to sell my client’s position to the opposing lawyer; while listening to him or her trying to sell his or her client’s position right back to me. Then I’d try to sell a half-decent settlement to my client, who almost always thought he or she should have more (or the other person should have less).

I have never been a good salesman unless I really believe in something. I am not one of those people who could sell anything to anyone. I did not become a lawyer to become a glorified salesman!! So is it no wonder that I was feeling inner conflict, dissonance, stress and general unhappiness with my legal career?

In 2000, my practice revolutionized. I became a Collaborative Lawyer.

My Concise Oxford dictionary defines collaborate as “work jointly (with . . . ) esp. at literary or artistic production; co-operate traitorously with the enemy; hence (collabor)ation”.

As a Collaborative Lawyer, I am a problem solver. I DO co-operate and work jointly with “the enemy”, but it is hardly “traitorously” (that part of the definition may have originated from the term war collaborator) — rather, it is to achieve an acceptable result for the person I am loyal to (my client) because I recognize that the best way for my client to get an acceptable result is to work together with the other client and his/her lawyer to ensure that both clients meet their goals. First the lawyers strategize as to how the process can work best for our clients; how we can help each other and what little tweaks they may need to the process. That is often a constant effort as we work towards resolving a Collaborative matter.

“Solving” a Collaborative case is much like analyzing a case in law school except the order of things is a little different. As a team, the two clients and their lawyers identify the “issues” as the starting point. I liken this to the reasons given by a Judge at the end of the case – this is the “why” of the solution. But in Collaboration we start with goals or interests (rather than end with it) – and we eventually tailor the solution to meet these goals. This is a real progressive and sophisticated transformation.

The questions our clients need answered are like listing the “issues” in a case.

The gathering information stage in Collaboration is much like listing the facts when analyzing a case. Every situation is unique because of the information.

And finally, mutual decisions are reached by clients in Collaboration. These decisions are much like figuring out the ratio decided in cases. In order to do that, we are creative in exploring all options and we encourage our clients to reflect back on what is important to them (their interests) in doing so. Collaboration is a circular process – we always look back to previous stages to help reach agreements that are acceptable to both participants.

It is not exaggerating to say that my quality of life as a lawyer has vastly improved since my practice has developed into more Collaboration and Mediation. I am more at ease with myself. I see myself as an effective problem solver, rather than a conduit for adversarial communication, and an impediment to resolution. I have a congenial, more genuine relationship with colleagues. I LIKE most of my collaborative law counterparts. We share our successes and strategies. We are less guarded and more open with each other.

I am not part of the conflict anymore. I am actively working to defuse the conflict.

I am not shouldering the responsibility for my client’s heartaches and worries. I am sitting beside my client and his/her spouse, recognizing that it is THEIR problem and I am there to help them get what they need from each other.

But ultimately, it is my client’s problem and I no longer go home with a heavy heart because someone didn’t get what they think they wanted.

There is less uncertainty – because the result is defined by what the clients find acceptable.

And thank God, I am very rarely a salesman! (I was not a good salesman!) I am a true advocate. I ask questions — probing questions — to help clients understand their needs and their options.

I still had one problem: I was somewhat schizophrenic. I was wearing two hats – and finding that frustrating. When I was on a Court file with non-collaborative lawyers and would act assertively, they would sarcastically comment that I’m wasn’t being very “Collaborative”. “Well this isn’t a Collaborative file!!” I wanted to scream! But I would just chuckle. If they thought they could get me to reveal my strategy on a non-collaborative file, they really must thought I’d been totally transformed.

What I’ve found most profound about my Collaboration practice is that it is more like the problem solving we learned in Law School than anything else I’ve ever done in my law practice. I am finally being true to myself!! I am doing what I set out to do so many years ago. I am helping people problem solve. I am trying to help them find peace. I am endeavouring to make their lives better after a very tumultuous family transition, rather than being part of the destruction of their lives amidst the animosity and carelessness of the Court system. Incidentally, I am also doing much more Mediation (more problem solving) than ever before. I believe my Mediation skills have been greatly enhanced by the problem solving approach I’ve embraced in Collaborative Law.

You are what you eat.

I am what I practice.

I am a much better (and happier) lawyer for it.

NOTE: Shortly after writing this article, Marilyn took a leap of faith. She made a decision to restrict her practice to Mediation and Collaboration. Call off the psychiatrists! She is so longer schizophrenic as she no longer does any Court work!

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