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Index  -  Just Click on the title and be whisked directly there.
    Collaborative Law - Collaborating with whom?
            Review of March 2002 Collaborative Family Law Council of Wisconsin
            multidiscipliniary collaborative divorce training program.  
    Divorce Litigation - Lessons from Henry VIII and the AFLAC Duck
            Explore the Relationship between a person's perspectives in life and conclusions
            reached as they relate to relationship paradigms, the rate of change in these
            models and the role of these models in family law.
    Life in the Trenches or What your clients really want from you.
            A summary of market research conducted on client and attorney expectations
    Divorce and the Eclipse® Collaborative Law System:
            A Simple Explanation from a Lawyers Perspective.
   Divorce and its Effect on Employers
          We examine three issues:
 If We Build It, Will They Come?
        Questions about Civil Collaboration and the Marketplace of Potential Clients.        

Collaborative Divorcesm –
             Collaborating with whom?

By Michael A. Loduha
©2002

        I attended the two day, $500.00 dollar, multidisciplinary  Collaborative Divorcesm Training program March 8th and 9th in Milwaukee.     The purpose of these comments is to put Collaborative Divorcesm into context and to outline important coming issues that will impact all the lawyers in Wisconsin who provide family law services to their clients and communities.

        The meaning of Collaborative Divorcesm as brought to Wisconsin practitioners by the Collaborative Family Law Council of Wisconsin, Inc.  (CFLCWI) and WisBar is best understood from the perspective of looking at the ‘market’ for marriage dissolution services as a whole.  Over the last 20 years there has been substantial erosion in the public mind of the benefits of a lawyer’s assistance with divorce.   The seminar presented some sobering numbers.  In 80% of the California, Arizona and Florida divorce actions one or both of the spouses have chosen not to have an attorney.   The clerk of court for my non-trend setting county, Manitowoc, reports a better picture: the number is only 40%.  Significantly, the evidence suggests that financial issues are not driving this deselecting of our helping profession in this important life transition, which remains a legal event.  Driving the movement away from lawyers are two converging factors.  First is the linkage in the mind of the public between the aggravation of divorce litigation and the lawyers who are its delivery persons.   The second factor is the public realization that there are divorce options that leave lawyers out of it.   Lawyers, often predisposed to confuse a mirror with a window, have generally stood by as the public turned its back.

        Nature abhors a vacuum.  This is true about beneficial services relating to the dissolution of marriage.   Parties facing divorce need guidance and assistance and this need continues to be filled – just not by lawyers.   Which brings us to the phrase claimed as intellectual property by folks from California, Collaborative Divorcesm.   This phrase cleverly begs the question, ‘collaborate with whom?’    Lawyers tend to answer this question by looking in the mirror and seeing themselves.   Increasingly, this is not the case.    In the bundle of services and the benefits promised by Collaborative Divorcesm,   the lawyer is only part of a team playing by rules counterintuitive and confusing to most members of the legal profession but promising and attractive to those personally facing divorce.  The primary collaboration in Collaborative Divorcesm   is between the members of the ‘interdisciplinary team’ made up of attorneys (both of whom agree to withdraw and provide no further services if the Collaborative Divorcesm  process reaches impasse), a qualified psychological professional acting as a ‘divorce coach’ (one for each party), a qualified ‘financial counselor’ (serving the needs of the spouses jointly) and a qualified ‘child specialist’.  This is in addition to such substantive experts, qualified therapists, mediators or others whose services may smooth the path for either or both parties.   

        California dreamin’ you say?    The evidence suggests otherwise.    WisBar, has addressed the movement away from the importance of lawyers in divorce by lending its support to that movement.   The CFLCWI – a Wisconsin born and bred organization has thrown its weight  behind the idea of how to meet the needs of divorcing spouses advocated by the folks who servicemarked ‘Collaborative Divorcesm’.   Worse than voting with its feet, the public is voting with its wallet.   Research shows that it is the higher marital estate spouses who elect to dodge litigation.  Collaborative family practitioners report no fee collection and no malpractice problems.      Professional service dollars are moving away from lawyers even faster than the litigants and those who choose a path other than the litigation model are so satisfied they follow up with Christmas cards and checks rather than malpractice claims and complaints.  Finally, there is a factor that should really shake lawyers up.    While I didn’t count, I guess there were between 180 to 200 lawyers there Friday morning.  Nearly all of them were still there Saturday at 5:00 P.M.

    The public is using a loud voice to tell us of a serious problem.   There are professional, honorable and effective alternatives to divorce litigation.  Collaborative Divorcesm  is at one end of the ‘professional services at divorce’ continuum, litigation at the other.   Between these opposite poles there is fertile ground for Wisconsin family law practitioners to develop ways to provide what we pledged when we entered this line of work.   Those options will become obvious when put aside the mirror, move to the window and carefully pay attention to what is going on in the real world.
   
Divorce Litigation:
    Lessons from Henry VIII and the AFLAC Duck

By Attorney Michael A. Loduha
© 2002  All rights reserved

            This is a story about two different relationship paradigms, the rate of change of these models and the role of these models in family law. 

            The relationship between a person’s perspective in life and the conclusions reached from that perspective was emphasized in the Collaborative Divorcesm  seminar I recently attended.  While the analogy is to the visual, the relationship influences both the substance and the meaning of an observation.  The blind men and the elephant analogy showed the substantive element of the relationship.  The ‘what it is’ aspect of the elephant was different based on the specific partial information of each of the blind men. But there is a second level of relationship between perspective and conclusion – the level of meaning. This is shown by the rhetorical question, “Is the glass half empty or half full?”   The effectiveness of the collaborative professional is enhanced by a broad understanding of the relationship paradigm in divorce litigation.

    The problem is not change – things are always changing – it is the asymmetry of the  rates of change we encounter.  Imagine traveling down the middle lane of a freeway so wide you can’t see the shoulder on either side.  Life is kind of like that,.  We travel along, occasionally sending a gesture of peace or contempt, depending on how the day is going, to the drivers in front, behind or on either side of us.   While we may speed up or slow down together, the speed we’re traveling isn’t particularly relevant if what we’re concerned about is our relationship with these other drivers – our rights if you will.   Our expectation of when we will get to our destination vis-à-vis our fellow travelers is set and we all share the journey.  Then comes along a driver from Illinois, in one of those hot Illinois cars.  (Feel free to insert the neighboring state of your choice.)  This person goes at a different speed, changing lanes and otherwise upsets the orderly relationship we had with our fellow travelers on the highway of life.  We could all drive like that – after all they do in _____(fill in state of choice) and it would probably work.  They generally survive the trip to the office and they cover the miles in about the same time we do.   It’s just that their way is so confusing to those of us who really do own the road.   The road to divorce is like this.

        A domestic dispute resolution model exists in every culture – be it the civil courts in western nations, the village elders in the jungles of Bali or the commissar of domestic affairs in communist China.   Our model is changing, and changing quickly in relation to the capacity for change in the social system we’ve assigned to handle this task: the courts.  We can benefit those we serve by understanding the paradigm behind the courts and the impact caused on their good order occasioned by ‘shortcuts’ society has demanded.

        To make sense of the divorce process in the courts it helps to understand the courts historically.   Our system of common law justice goes back to courts of Henry VIII and 16th century England.   Remember that Ole’ Marryin’ Hank wanted things his own way, and that’s pretty much what he got.   He well understood the details of absolute power.   Because he couldn’t be everywhere, he appointed loyal little kinglets – ‘judges’ he called them – to act in his place and to ‘hold court’ in his absence and to decide that which needed deciding.  Recalling the fate of Henry’s Chancellor, Sir Thomas More, who didn’t quite suck up as required, most judges tried their best to decide things exactly as Henry would have if he were not out hunting or something.   This predilection in judges – to think they are the King’s ‘special guy’- has proven to have remarkable staying power,  showing up in divorce courts today.  

        In everyday life we do things with other people because we have agreed.  Where two or more people agree to do – or not to do – something each affecting the other, it is called a contract.  This is a great idea and it works pretty well right up to the door of the courtroom where, thanks to Henry and his progeny, it stops working entirely.   It is sort of like agreements are Superman and the courtroom is full of Kryptonite.   Once someone – call her the Petitioner – asks the judge to intervene and end the legal relationship society must respect - marriage - she submits herself to the authority of ‘Henry’s Guy’ – the judge.   By a bit of legal Ipse Dixit (remember Henry was as much an absolute ruler then as the IRS is now), when the paperwork is handed to the other guy, the Respondent, the court has power over him as well.  From this point on, it doesn’t matter what the Petitioner and Respondent want or what they agree to.  It only matters what the judge orders.  An agreement between the parties concerning the subject for which they are in court has no legal or binding effect at all.  It is not a contract and the law will not enforce it.   Once the parties are ‘in court’ all that matters is what the judge orders them to do or  to refrain from doing.   Once the court has made an order, the parties are not at liberty to ignore it without risking the consequences of contempt of court.  Fortunately, we don’t have ‘divorce police’ who independently investigate and enforce the orders of the judge.  Our system is to wait until one of the parties comes into court and whines that the other party is ignoring the order before enforcement is undertaken.  There are serious and valid reasons this is so, and the success of our society and our civil justice system over the centuries tells us that we mess with this paradigm at our peril.  

    This operational paradigm in the courts is sort of a ‘Tastes Great’ to Collaborative Divorce’ssm ‘Less Filling’.   In Collaborative Divorcesm  the ‘power’ comes from the parties, not the judge.  So why do bailiffs still carry a gun?

    This is where the AFLAC duck comes in.   The duck represents the magic of modern make-up technology - or legal shortcuts – allowing one thing to look like another quite convincingly.   For example, while you wouldn’t think so at first glance, you can tell from subtle body configurations and that wide and cheerful smile that the AFLAC duck is played by Julia Roberts with a voice over by Gilbert Gottfried.   Similarly skilled lawyers disguise agreements between the parties to a divorce so that they look like court orders.   The converse is also true.  Judges, needing to save time, wish to order the divorcing parties before them to do what they agree to do.  After all it is their marriage, their children and their future and judges, the legacy of Henry VIII not withstanding, are people of their times. 

    In society’s rush to identify and protect individual rights and freedoms, we have begun to think that the marriage belongs to the husband and the wife.  But it is not so.  As the ghost of Big Hank reminds us, the marriage belongs to the king; that is, to society as a whole.   The legal status of marriage must be respected by others such as insurance companies, mortgage lenders and the like and as such it goes beyond consent  or contract  purely to be personal to the parties.   The dynamic between the individual and some or all of the rest of society is expressed in the concept of ‘rights’.   Although the specifics of the case deal with the individuals before the judge as parties, the principles the court must protect resonate to society as a whole.   The process by which rights valuable to everyone in society is expressed in the lives of the Petitioner and Respondent is called litigation.   Most lawyers understand the difficult path an individual takes through the thicket of the law and most lawyers want to take such shortcuts through the briars as are possible.   These shortcuts are often in the form of something called a ‘stipulation’.  A stipulation is the agreement of the parties to jointly ask the judge to order them to do what they want to do.   Like the make-up artists who turn Julia into the duck, these shortcuts leave the impression that it is the will of the parties – in the context of the privacy of their marital relationship and the privacy of its dissolution – that is at work.  That is the image, but not the reality, of what is afoot in the courthouse.

    In their concern for the welfare of the parties and the children as individuals, it is easy for collaborative professionals to see the issues of dissolution in terms purely private to the individuals involved.   It is also easy to see the emotional anguish and personal weaknesses of the parties as a fault of ‘litigation’, as if it was created to make the difficult more painful.  It is wise for the collaborative professional to keep in mind that it is the absence of a functioning civil justice system that spawned segregation and it is the presence of such a system that had a large part in setting us free.  Collaboration works as an alternative to litigation, but not in spite of it.

Points Summary
·    Relationships, like elephants, aren’t always as they seem.
·    The human tendency to ascribe meaning to an observation is influenced by our predisposition.
·    The authority paradigm between court and the parties in divorce exists for a reason, namely to support the concept that marriage is a public as well as a private matter.
·    The rate of a change in the courts and of society isn’t matched and this lack of matching affects our perception of the litigation process.
·    Collaborative professionals best serve their clients by understanding the divorce litigation from a historical and sociological perspective as well as from the humanistic and private relationships involved.   

Divorce and the Eclipse® Collaborative Practice System:
A Simple Explanation from a Lawyers Perspective.
By Attorney Michael A. Loduha
© 2003  All rights reserved

Law firms are like restaurants in a way.   In a restaurant, the hungry customer orders from the menu of what the restaurant offers.  The customer makes a choice, but must choose from what the restaurant has predetermined to offer.   When a client walks into a law firm, something similar occurs – the client’s choices are limited by the services the law firm offers.   When it came to the dissolution of marriage, law firms were limited to offering litigation based services.  In simple terms, collaborative law is something new on the menu.

The difference between litigation and collaboration based divorce is not the outcome; the marriage of the spouses is going to be dissolved.  The distinction is in how we will do it.     Imagine a litigated divorce to be something like a tug-of-war.   For a variety of reasons the two sides are pretty equal in the courts. With both sides pulling as hard as possible, neither side can relax first.  Often, the case settles when both sides become exhausted by the process.  The anguish and expense invested often has little relation to the outcome.

The Eclipse® CPS is a way to benefit your client while avoiding the tug-of-war.  To see the difference imagine the difference between the things a lawyer does at the start of litigation based divorce and a collaborative divorce using the Eclipse® CPS.

In litigation, what is important to the court is what matters.   ‘Legal’ relevancy trumps personal relevancy, the fact that this makes the process more stressful for the client notwithstanding.   When a client needing family law services comes into the office, lawyers know to act decisively and act fast.  Motions are filed and demands made, the clients are instructed not to communicate directly but to go through their respective lawyers.   At the beginning the lawyers never talk about finding mutually beneficial solutions lest doing so be seen as a sign of weakness.   Lawyers are doing what must be done to competently play the game as adversarial litigation defines the rules of the game and the tug-of-war begins.

In collaboration, the process is different from the very beginning.   The key to being liberated from what litigation makes lawyers do is the 4-way agreement signed by both clients and both attorneys.   By agreeing not to use litigation to arrive at the terms by which their marriage will end and their life – and that of any children involved - will go forward, the parties become free of the rules of litigation that contribute to the difficulty, expense and pain of the process.

But divorce, courts or no courts, is by its very nature, the process of breaking down the conjoined life of the spouses and crafting two separate lives from the parts.    Because its meaning is so deeply rooted in the lives of the spouses and because the process requires both cooperation and concessions from each, there must be some commonly understood set of practices and procedures replacing litigation in order for things to move forward.  This is where the Eclipse® CPS comes in.

To picture how the Eclipse® Collaborative Practice System works, imagine a conference room where the attorneys, coaches and other professionals involved in the divorce regularly meet.  In this room they share the information each knows is important for success of the collaborative process and jointly develop a case plan, each mindful of his or her client’s unique needs and circumstances.  Each of the professionals works with his or her client in private.  The conference room is where they get together – sometimes all together and sometimes only one or two – to share and plan – or modify their existing understanding or plans as the case develops or the situation changes.

Imagine there are four whiteboards in this room.   These four whiteboards correspond to the four categories of ‘stuff’ that everyone needs to keep in mind for collaboration to succeed.   The professionals share information and insight orally in their discussions.  The whiteboards are where they write down the important points – for those who didn’t participate in a meeting orally, to keep things clear over their many cases, to manage their give and take as they work together for the spouses, to keep track of the inevitable changes and to manage and track progress.

With the Eclipse® Collaborative Practice System, the meeting room is on the Internet – somewhere in cyberspace.   To participate in a meeting the professionals use their passwords to access the case on the Internet and get on the phone with one or more of their case colleagues at the same time.   The meetings can be as formal or informal as they decide, scheduled or ad hoc.    Information is shared and changes or additions made to one or more of the whiteboards.    At other times, say just before a client meeting, another of the professionals can access the case on the Internet and quickly bring him or herself up to date on any activities or changes the other professionals may have noted.

Divorce is usually a difficult and stressful time in the clients’ lives and any time two are made from one, there is usually an inevitable element of competition.   While adversarial litigation manages these realities by ignoring the personal aspects and concentrating on the legal issues, it does provide a mechanism by which the process, however inefficiently, moves forward to decision and conclusion.   Collaboration expands the factors considered and opens the door to crafting a process to meet the unique needs of the two spouses involved.  Going back to our analogy, collaboration also benefits the children because it’s the pulling that affects the children rather than who wins the war.   Eclipse® is the communications tool that allows busy professionals to work together efficiently across the practices and procedures customary to their respective professional disciplines to the benefit of all.   While providing tremendous flexibility to meet the individual needs of the spouses and the practical requirements of their professions and the unavoidable legal rules of their jurisdiction, Eclipse® answers the question,  “We’re not going to litigate, now what?”

Divorce and Its Effect on Employers
Michael A. Loduha Esq. and Tara Rusch

Should an Employer support Collaborative Law divorce through their Employee Assistance Programs?
To answer this we examine three issues:

1) The impact of divorce on employees
2) The effect of divorce on work performance
3) The amelioration of the economic impact of employee divorce on employers


The impact of divorce on employees
            Divorce impacts everyone within its radius of effect.   Employers, whose success is hinged on the effective efforts of their employees, are within this radius when an employee goes through the life transition called divorce.   Divorce adds a detrimental level of stress to all parties involved.  According to the Social Readjustment Rating Scale, divorce is the second most stressful event in a person’s life, second only to the death of a spouse.  In the hierarchy of detrimental stress, divorce trumps going to jail, getting fired, and even having a terminal illness1.  The detrimental effects of divorce related stress is multiplied in the employee by the echo of that stress in his or her children and extended family.  

            From the employer’s perspective, a major concern is the effect of divorce related stress on the employee’s physical and mental health.  Epidemiological studies have suggested that the high levels of stress associated with divorce can lead to premature death2.   A study performed by State University of New York-Oswego and the University of Pittsburgh, with 12,336 men at an above-average risk of coronary heart disease (CHD), was completed over a period of nine years.  Among the men who divorced during the study, there was a 37% increase in the risk of death due to CHD when compared to the still-married men.  This project confirmed that a stress-filled life due to the loss of a marriage can affect our cardiovascular health in a very deleterious way3.   Other studies show a positive correlation between divorce and suicide4,5.An individual’s mental health is at risk as well. One of the most authoritative studies ever done in the United States on mental health correlates the relationship between divorce and mental dysfunction on a continuum from serious mental illness through temporary aberrations of mental function to exacerbation of the everyday stresses of life.6

Many of these studies demonstrated men to be more detrimentally affected by a divorce than women.  Augustine Kposowa, Ph.D7 argues that the difference lies in how the genders each form social bonds.8 “Men make friends with whom they can hang out, and women make friends with whom they can share their feelings.”9 Thus, when a divorce occurs, women have more of a social support network."10 Bruce Hillowe, J.D., Ph.D. argues that many men also have a change in their fatherly role since in most cases the mother becomes the custodial parent.11Similarily, Alvin Baraff, Ph.D. argues that many men often feel they are responsible for the failure of a marriage and then the husband ends up not only losing a wife, but also his children, home, and money. 12The collaborative approach addresses the real psychological needs of both spouses better than an approach that favors either the role of the clinician or the attorney.

The effect of divorce on work performance
            Today, companies face an increasingly competitive marketplace.  Companies can only manage the external problems inherent in business through the employees whose day-to-day relationships and interactions make the difference between profit and loss.13  Divorce is one issue that fifty-two percent of all workers will go through and this experience dramatically can affect their productivity.14  As discussed above, the mental health of employees is jeopardized by divorce, often expressed by increases in depression and/or substance abuse.  “The economic burden of depression alone is at least 44 billion dollars annually.  The increase in employee costs includes absenteeism and reduced productivity, which represent 55% of that cost.  Employees who turn to substance abuse have 400% more accidents, 300% more absences, three times as many health care claims, 500% more injuries, and only 66% of the productivity of fellow workers.15

            An organization's management needs to focus its energy on positive business opportunities, rather than the negatives of morale and productivity related to employee divorce.   Their human concern for fellow workers not withstanding, employers would be well served economically to examine what they can do to ease employees through the life transition called divorce.   Until the advent of the collaborative divorce movement there were a few opportunities for employers to ease the strain of divorce on employees.16  

From this need arose the concept of the Employee Assistance Program (EAP).  It is through the counseling aspects of these programs that many employers can have a positive influence on their employees’ recovery from divorce.17    The collaborative family law movement now presents an opportunity for employers to expand their EAPs to better serve those on whom they depend in a way that is both beneficial for the employee and economically efficient for the employer.

The amelioration of the economic impact of employee divorce on employers
Collaborative family law wasn’t founded to ease the task of employer18 but it does.    Collaborative practice goes beyond the limitations of mediation19 and presents a divorce modality that addresses many of the underlying stressors in the spouse/employee.   The collaborative model does this by balancing the two distinct yet inseparable elements of marital dissolution – the personal and private and the public and legal 20 - with an efficiency and effectiveness no other modality can match.   It does this by recognizing individual needs of each spouse, balancing the two elements, maximizing beneficial creativity, lifting some of the burden21 and coordinating the process as efficiently as possible.  

There are specific aspects of the collaborative approach to divorce that make it an attractive addition to an EAP program:

There are several cost effective models employers can use to encourage employees toward the collaborative model.  These include:

Conclusion

            With more than 50% of marriages ending in divorce it is not hard to realize that employers are heavily affected when employees divorce.  Through adaptation of their EAPs, employers can promote collaborative family law as a more civil and less detrimental process to effectuate the life transition of divorce.  Employees benefit by preserving their physical and mental well being and employers benefit by having employees more focused on their work with fewer absences and greater productivity.  Morale improves and the bond between employer and employee is strengthened while short term economic as well as long term human interests are served.  

(1)  Thomas H. Holmes, and Richard H. Rabe, "The Social Readjustment Rating Scale," Journal of Psychosomatic Research 11:213-218. Copyright 1967, Pergamon Press, Ltd.
(2)  Robert A. Wascher, M.D. F.A.C.S., “STRESS, DIVORCE & DEATH...”, Jewish World Review, Feb.14, 2002 at (http://www.newsminute.com/stress.htm) last visited (Sept. 28, 2003). (3)   Robert A. Wascher, M.D. F.A.C.S., “STRESS, DIVORCE & DEATH...” , Jewish World Review, Feb.14, 2002 at (http://www.newsminute.com/stress.htm) last visited (Sept. 28, 2003).
(4)  Jeffery Barr, et al., "Catholic Religion and Suicide: The Mediating Effect of Divorce," Social Science Quarterly, 1994, 75:300-318.
(5) Jack Smith, et al., "Marital Status and the Risk of Suicide," American Journal of Public Health, 1988, 78:78-80.
(6) Lee Robins and Darrel Regier, Psychiatric Disorders in America: The Epidemiologic Catchment Area Study (New York: Free Press, 1991), p. 44.
(7)  Associate professor of sociology at the University of California at Riverside.
(8) Sarah Yang, “Men More Likely to Commit Suicide After Divorce” March 15, 2000 Web MD at (http://www.divorcereform.org/mel/amensui.html) last visited (Sept. 29, 2003).
(9) Id.
(10) Id.
(11) A family law attorney and a clinical psychologist in Long Island, New York
(12) Founder and director of Men Center Counseling in Washington, D.C.
(13) Total Employment Assistance & Management, Inc. at  (http://www.team-eap.com/prospective_customers.html) last visited (Sept. 29, 2003).
(14) Id.
(15) Id.
(16) Andrew Perry,  “Mitigating the Effects of Divorce on Children,” Workforce Stability Institute at (http://www.employee.org/article_divorce_on_children.html) last visited (Sept. 29, 2003).
(17) Andrew Perry,  “Mitigating the Effects of Divorce on Children,” Workforce Stability Institute at (http://www.employee.org/article_divorce_on_children.html) last visited (Sept. 29, 2003).
(18) Stu Webb, founder of the collaborative family law movement.
(19) “Imbalances in power, sophistication, emotional attitude and stability of the parties, as well as dishonesty, foot-dragging and other less-than-good-faith orientation to the mediation, can render effective mediation by a single neutral professional difficult or can compromise the even-handedness and stability of the mediated outcome”. Tessler, Pauline  Collaborative Law  Achieving Effective Resolution in Divorce without Litigation, American Bar Association, p.3.
(20) The personal and private component relates to the relationship between the individual spouses, their feelings, their anticipation of security (both financial and emotional) and their relationship with children and others all affected by their divorce.  The public and legal aspects relate the rights and responsibilities between the spouses and the rest of the world that are changed by divorce.  These include such things as obligations for debts, retirement income and health insurance coverage and the like.
(21) In litigation there is the burden of the expense, delay, negativity and uncertainty; in mediation there is the added burden on each spouse of going it alone.  Collaboration is cheaper, faster, more positive and certain; in addition each spouse benefits from the support of dedicated professionals.
(22) Proprietary research

If We Build It, Will They Come?

Questions about Civil Collaboration and the Marketplace of Potential Clients.

Michael A. Loduha           

    Author’s Note: I’ve spent years building things, the value of which only I can see.   My experience in the collaborative family law movement tells me that I have many colleagues who have similarly labored.   We see the world through attorneys’ eyes; we value and judge from attorneys’ perspective and experience.  We’ve even been trained to ‘think like lawyers’.  But increasingly we live in a society of free choice where we must be chosen before we can benefit.   Potential clients for civil collaboration services will see and choose or reject us and what we offer1 from their perspective.  Experience has taught me that this perspective is different from mine2. 

How profound is the change from a litigation-first to a collaboration-first mindset?

            The answer to this question depends a lot on whose ‘mind’ is set.   
       
            If we are talking about the minds of attorneys, it seems that the change is quite profound.   For example, lawyers ‘own’ litigation.  Litigation takes place before the judicial branch of government that licenses us.  That license grants us the exclusive right to represent others in the dispute resolution forum of the courts.   That is a very powerful license indeed, because the sheriff enforces the orders of the judge and the sheriff carries a gun.   The license makes litigation attorneys an intimate part of a powerful process.   But the core of the collaborative process is the agreement to eschew the coercive authority of the court.  For an attorney to sign such an agreement is the equivalent of the sheriff putting down his badge and gun and talking the bad guys into giving back the money they just robbed from the bank.

               Come to think of it, the switch from litigation to collaboration is actually bigger than just putting down the badge and gun.

               Our profession has always paid lip service to the idea that clients are the true ‘owners’ of the disputes in which they are enmeshed.   In theory, clients can represent themselves before the court, but in practice most realize that this is as effective and painless as doing their own dental work.   But with collaboration, the client’s really do ‘own’ the problem.    The meaning of this can be seen by continuing the sheriff – bank robber analogy.    Once the sheriff puts down her badge and gun, she assumes a position shared by others in society who might be interested in talking the robber into doing the right thing, such as clergy, psychologists or social workers.    I suggest that to the population of bank robbers, talking to a social worker, etc. would carry greater credibility because of the bank robber’s expectations as to where the social worker is ‘coming from’ compared to the sheriff.  Even if the sheriff sincerely introduces herself as a ‘recovering law enforcement officer’ the robber, if given a choice, is more likely to choose to talk to someone whose profession does not call to mind images of handcuffs and jail cells.       Once the clients come to realize that they truly own the dispute, they will quickly realize that they control not only the process of resolution but also the personnel who effectuate this process.  Without the license that is our ticket into the courtroom, we stand on equal footing with the clergy, psychologists and social workers who are now the sheriff’s competition.  In the case of corporate collaboration, this would be the guys and gals who specialize in finance, marketing, technology and the like.   Another way to see it is that when it comes to litigation our competition is White & Case, when it comes to collaboration our competition is Cap Gemini.   The more effectively we educate the market about the differences between litigation and collaboration, the more we will find ourselves in a different milieu with different competitors.

            To the extent this analysis is accurate, how does considering it benefit us?   First, before they can hear the message of the benefits of collaboration potential clients must listen to the messenger.  If they think they’re listening to lawyers, will they hear what they expect lawyers to say?  Second, if our goal is to switch the clients’ focus from litigation to collaboration while keeping ourselves in their mind as dispute resolution service providers of first choice do we present ourselves under the ‘law firm’ model or do we consider a broader presentation perhaps modeled on the large consulting firms?

(1) To the public, there is little distinction between 'us" and 'what we offer'.
(2) Perhaps the best example is that for me 'justice' is a process while for most of my clients it is an outcome.

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