Recently, I served as counsel for a party in an adversarial matter. In this particular case, the opposing counsel, mediator, forensic accountant — all of whom had been involved in the case from the onset — comprised an anomaly in the profession. They formed a cohesive team. Once I describe it, you will see why I pray this approach (comparable in many ways to Collaborative Law) becomes the new norm, rather than the exception.
When I entered the case (upon withdrawal of prior counsel) it had already been in process for nearly two years and the judge had grown impatient. If settlement wasn’t imminent, preparation for trial would be.
Why teamwork works
When multiple professionals cooperate to achieve a shared goal, it is inspiring for participants and adds value for clients. A primordial archetype of family (or tribe) is echoed — a collective supporting the individual in need.
While each attorney is tasked with zealously advocating for the rights of her client, the way we have traditionally gone about this may, in my estimation, have room for improvement. In family law, if one party loses, so does the whole family. Even if you “win,” you are never rid of the one you were victorious over, nor the other consequences of your “win.”
In families, win/win might be the only way.
When professionals work together, they do not abandon representing their clients’ needs, but include an ideology of creating a fair and equitable result; helping both parties to move beyond crisis. Professionals share an appreciation of the costs of contentiousness on the family unit and are concerned with mitigating that toll.
A win for practitioners (less burn-out, no acrimony between colleagues or with client)
When I entered the case, both counsel and mediator greeted me with human friendliness. They were committed to the clients and case, to utilizing their capabilities and energies to getting the clients through. Both shared their mobile phone numbers with me, shared their schedules if they would be unreachable for any length of time, and made time over the weekends and morning commutes to address clients’ emergent concerns or to chisel fine points of the agreement. Quick calls and texts were used to provide “just in” information. There was a focus that kept everyone on task; a shared goal — helping the clients and family move safely through to stability.
When attorneys regard themselves as colleagues — as opposed to adversaries — an environment of forthrightness and willingness emerges. This environment fosters workability, innovation, and focused forward movement. Professionals are free to utilize their strengths collectively, rather than getting waylaid with posturing, attacks, and aggression. There can be an ease and candor that, particularly in family law, is prescient to resolution.
When the obstacles of combativeness are removed, attorneys on opposite “sides” can use their energies to work together to help.
The clients win
For the first time in months of litigation, my client expressed feeling a sense of being accurately and enthusiastically represented. I believe she felt not only acknowledged by me, but even by the other professionals who were not tasked with representing her interests.
Often clients will develop antagonistic feelings towards opposing (i.e. their spouse’s) counsel — what a waste of necessary energy! The conflict between parties should not reverberate in the professionals but rather be soothed by them. Success is when the parties can feel valued rather than vindicated.
In considering how I would want professionals in whom I entrust critical matters to care for me, I discover I want them to work cooperatively with others to get the job done in the best, fastest way possible.
Interestingly, in most other areas (think: medicine, education), when people face conflict, nimbleness and innovation tend to be more useful than meanness.
I’m proposing that the adversarial system does not offer some of what the collaborative approach can. The adversarial approach, while it certainly arises from — and can speak to — the instinct to defend, and even harm, when threatened (think: reptilian, survival brain), it can only do so by collaterally sacrificing other essential values; these include the sense of community, support, and consideration for others.
So this experience, as a practitioner, has been Utopian in a way. I hope this is the real wave of the future; it raises all ships, and provides a much smoother ride to shore.