As a new feature this year, the SCMA fall conference sponsored two institutes the afternoon before the traditional Saturday conference. The one I attended was on the interaction between collaborative law and mediation. I probably have no business writing a blog post on collaborative law, because I know very little about it, but in the course of acting as devil’s advocate and class trouble-maker at the institute, I did learn a few things. One is that collaborative law is becoming more widely accepted in divorce proceedings. Another is a little bit about how it works, most notably that all professionals must operate under what is called a participation agreement that requires them to disqualify themselves if the matter goes to court. That gives everyone involved a powerful incentive to work towards an agreement, while diminishing the participants’ ability to threaten a lawsuit if the negotiations fail.
The presenters of this program, mediators Woody Mosten and a group assembled by Diana Martinez, talked about how mediation and collaborative law interact, and the similarities in values between mediation and collaboration. They also explained how other professionals, such as therapists or counselors or accountants can be employed in a collaborative setting to put together divorce and custody agreements.
I had to admit that the whole idea made me a bit uncomfortable, but that is probably because I am so used to working in the business litigation context, whether as a trial attorney or as a mediator, and I have less experience with family law. To me, it feels more comfortable to have the attorneys playing their traditional roles as zealous advocates for each side. Indeed, one of the benefits of mediation is that it frees attorneys to continue to play the role of fierce advocates for their clients, which clients generally appreciate, rather than putting the attorneys in the position of having to remind their clients of the weaknesses of their positions. The mediator can then assume the role of pointing out the strengths of the other side’s position, and the costs and risks of litigation.
On the other hand, as collaborative law was explained to me, it didn’t seem all that radically different from the way I have come to practice litigation, a style that tries to avoid acrimonious and counter-productive fights along the way to resolving a dispute, saving the zealous advocacy for when it becomes important to arguing the client’s substantive position in court. And when I act as a mediator, the thrust of my efforts is often to help the attorneys for the warring parties, and the parties themselves, work together to solve their common problem (the dispute), rather than work at cross-purposes to try to allow one side to prevail over the other. Collaborative lawyers remain advocates for their client’s positions, just like traditional attorneys, but do so in a more cooperative and a less adversarial manner. The difference between collaborative lawyers and those traditional litigators who have also learned to avoid unnecessary acrimony is that the traditional litigator retains the option of taking the case to trial, while the collaborative lawyer must drop out if that is the route the parties choose to take.
What I haven’t seen yet is what a mediation would be like with collaborative rather than traditional litigation attorneys. But now I’m curious to try it.
(photo from Divorce Tips Site)