Monday, March 31, 2021

Come to the ABA Professional Responsibility meeting in Boston

On Saturday morning, May 31, 2008, in Boston, Massachusetts, I'll be participating in a panel discussion about the ethics of collaborative legal practice, at the American Bar Association 2008 National Conference on Professional Responsibility, which is being held at The Seaport Hotel in Boston. Other panelists include Paula Noe, a collaborative lawyer from Massachusetts, Scott Peppet, a Colorado law professor with a special interest in the ethics of collaborative practice, and moderator Jim McCauley, of the Virginia State Bar.

The panel is going to take a constructive and practical approach, beginning with how to do it right (i.e., how to practice in a way that accords with professional legal ethical mandates) before discussing how practitioners might go astray and how to avoid that.

Anyone who is interested in attending can find conference registration and program information by clicking on the title of this post. I'd love to see lots of collaborative practitioners in attendance who can help the conversation stay focused on the degree to which we do it well, more than on the horrible things that could happen if someone made lots of errors.

Friday, March 21, 2021

Landmark Collaborative Divorce Team Training in New York

Last week, more than a hundred lawyers, mental health and financial professionals gathered in Westchester County, New York, for the second in a series of free, state-court sponsored trainings of collaborative divorce professionals. The trainings are sponsored by the New York state court system, as part of building the first publicly-funded Collaborative Law centers in the United States. Participants committed to provide several hours of volunteer professional services in the centers in return for free training in Collaborative Law, interdisciplinary Collaborative Divorce, and interest-based client-centered negotiations (aka mediation training).

The trainers--myself, Maria Alba-Fisch, Ph.d., and Diane Drake, CFP--worked with a group of volunteers including Kathryn Lazar (collaborative lawyer) and Jonah Schrag and Alison Bell (collaborative divorce coaches) to teach participants all aspects of interdisciplinary team collaborative practice. The two-day event began with an overview of collaborative practice, followed by a full day of skills training in separate-discipline breakout groups. "Cross training" (each trainer working for a while with breakout groups from the other two disciplines) ended the day. On the second day, trainers focused on building the skills required for effective collaborative teamwork--becoming a functional system that can help our clients' dysfunctional systems. The volunteers worked with us to present a spectacularly effective demonstration of an interdisciplinary team in action with a couple moving through a divorce.

I was struck with how easily all of us presented the demonstration, working collegially as a well-oiled collaborative team--even though several of us had never even met until the hour preceding the demonstration! There is no doubt in my mind that this reflects the inherent power of collaborative team experience to change how we all understand and peform our work: there is a way to do this that works, a way that we all learn gradually by interacting in professional teams, struggling together with challenges, sharing ideas, and engaging in constructive team problem-solving with colleagues who bring other skills and perspectives than our own.

One person attending the event was so impressed with the smoothness of our work together that she wondered how on earth we'd managed to get so much case experience together, living as we do on opposite coasts. Of course, I'd never worked with these professionals ever on an actual case. But working in our own practices and practice groups over time, we all learned the same lessons about how to facilitate effective deep conflict resolution in team practice. To me, this confirms what we all learn over time: that the universality of conflict and conflict resolution principles transcends the specifics of geography and national and legal culture.


The training series reflected my strong belief --derived from experience--that lawyers need quite a bit more than can be offered in a two or three day introductory interdisciplinary training in order to make the substantial shift from conventional legal advocate to collaborative lawyer. The design for this series was for the lawyers to begin with an intensive two-day introductory training in collaborative law, as a prerequisite for enrolling (at intermediate level) in this two-day team training. In other words, the lawyers spent the first day of our team training honing their collaborative lawyering skills at intermediate level while the other professions had their introductory collaborative skill-building day. Then, on day two, all professions gathered together for their training in how to work as a team. This is the model that I have been recommending as a preferred training sequence.

When lawyers have a team training as their introduction to collaborative practice, they have met the IACP minimum aspirational standard for a collaborative training experience. But they probably won't have had more than a few hours of focused training in the skills and understandings specific to the legal role in collaborative practice. We all know that of the three professions, the learning curve is greatest for the lawyers. Many of us are also recognizing that lawyers who come to this work from experience as mediators bring considerable skill in their work with clients, and therefore may often think that an introductory collaborative law training would be redundant for them.

Au contraire. A good introductory collaborative law training spends little time on client centered interest based negotiations, because there are great mediation trainings available that provide those skills in much greater depth, and the IACP standards call for practitioners to take such trainings. A good collaborative law training focuses on transforming how the lawyers understand the difference between traditional and collaborative legal advocacy, and on the resulting transformation in how we work with our clients and our collaborative legal colleagues on a case.

That is not taught in mediation training, is not learned in mediation work with clients, and cannot be taught to lawyers in the time available for breakout work in an introductory interdisciplinary collaborative team training. Lawyers who never attend a full-bore collaborative law training may tend to bring into their collaborative work their habitual negotiating attitudes and techniques without recognizing that there is a profoundly different way of working as a collaborative lawyer.

Many of my intermediate and advanced trainings these days are with practice groups struggling to break through the low ceiling that conventional advocacy approaches will impose on the conflict resolution work of an interdisciplinary team, in communities where the lawyers may have handled a lot of collaborative cases but may not have transformed how they work with the law, how they counsel clients, how they identify and support clients in advocating interests, how they handle impasse, and how they work collegially with lawyers and other members of the team.

Interdisciplinary teams are limited in their potential by the conflict resolution understandings and skills of the least effective member of the team, and often, that least effective member will be a collaborative lawyer who is entirely unconscious of the reality that he or she is bringing fairly conventional advocacy and negotiating approaches to the process.

An incomplete paradigm shift affects the larger collaborative community as well as individual clients and families. Lawyers are still the most frequent gateway into the collaborative process, and lawyers who aren't aware of the persistence of conventional approaches to divorce legal advocacy in their own work may put out inaccurate "core messages" about how collaborative practice differs from other dispute and conflict resolution modalities---or even worse, may talk the talk without being able to walk the walk.

I don't think the lawyers who attended this recent sequence of trainings in New York will have these problems. It was great fun, and a privilege, to work with all of them and their new colleages.