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February 23, 2023

Lawyering with Collaborative Practice in Mind

Dr. Anita Dorczak Ph.D., M.A.,LL.B., PC, Cert.EM, CLP

In the ABA study entitled “Perceptions of the U.S. Justice System”, 80% of respondents believed that the American justice system was “the best in the world”, 69% strongly agreed that “it would be easy to get a lawyer” if needed, and 55% strongly agreed that it was “easy to access legal services”. Can you guess when the data were published? Pre-Covid? Yes! In fact, this study dates back to 1999! Fast forward to 2023…

Our justice system is broken. Would you disagree? Then you would not be living in our North American reality. Thousands of people come to court every day looking for a resolution of their legal problems. But before the legal problems can even enter the courts the litigants face other challenges: lack of financial resources to commence or continue, long delays and an added complexity of court rules (courtesy of the coronavirus). With family matters, it is common to wait 6 - 8 months to secure a one-hour slot in chambers to have a judge rule who is to parent the kids or whether a parent getting a new job can leave the jurisdiction with the children. No wonder the public is losing trust in the courts, as a recent study by the National Centre for State Courts indicates, ordinary people lose confidence in the judicial proceedings. This bleak picture is captured so well by four university professors in an article published in the 2022 summer issue of Law Practice Magazine: “behind courthouse doors, vulnerable people face impenetrable language, byzantine procedures and decisions they do not understand.”

Is there an alternative? Yes, enter Collaborative Practice!

Unlike litigation in Collaborative Practice the clients and their lawyers work together to resolve issues. We work together in teams. There is a powerful paradigm shift from the lawyer “litigator” fighting for the client’s rights to the lawyer “advisor” and the team member assisting the clients in resolving their problems. Yes, their problems. So often lawyers tend to inhabit their clients’ lives and make decisions for them. In collaborative law, the clients are the protagonists making the decisions about their lives and their lawyers are their trusted advisors. So… how do we get to yes?

Well, we collaborate. Have you ever wondered about the etymology of “collaboration”? Let us take a little trip back in time to the year 1860. This is when the first record of the word “collaboration” appears; however, it really comes from the Latin verb “colaborare” which combines the meaning of “together” and “work”. According to the Cambridge dictionary, collaborate means “to work together with someone else for a special purpose”. The special purpose is the resolution of the clients’ conflict. It takes understanding people, relating to people, and figuring out how to put pieces together to solve a problem. As a collaborative team, we all work together to find the right solution. Making people comfortable while achieving their goals requires a supportive team. In 1878, Leo Tolstoy famously wrote in Anna Karenina “All happy families are alike, but every unhappy family is unhappy in its own way”. To address the needs of these “unhappy” families that become our client we need to adjust our approach, remove all the jargon and complexity, and let the clients hold the keys to decision making. We must be willing to embrace flexibility.

What does flexibility entail? The word dates to the 1610s, from the French “flexibilité” or from the Latin “flexibilitas” and has been used to apply to immaterial things since 1783. It denotes “mentally and spiritually pliant”. The Cambridge dictionary defines flexibility as the “ability to change or be changed easily according to the situation”. In their book “The Wisdom of Teams”, J.R. Katzenbach and D.K. Smith wanted to discover what differentiates various levels of team performances and how teams work best. They discovered that teams must share an essential discipline. So, what sets a team apart from a working group? The team focuses on a “specific purpose” (in the collaborative process, we focus on the clients’ goals) , the team encourages “open minded discussion and active problem solving meetings” (which is what we do in the collaborative process) and the team’s performance calls for both “individual and mutual accountability” (in the collaborative process, we sign a Participation Agreement which obligates the lawyers not to represent the clients in any potential future litigation should the collaborative process not result in a legally binding contract resolving the issues). The authors claim that this mutual accountability can lead to astonishing results. Recent research data from the Florida Academy of Collaborative Professionals show that 78% of collaborative cases completed in less than six months, 97% of collaborative cases completed within one year and 85% of collaborative cases completed with full agreement resolving all issues (courtesy of our colleague Michael P. Sampson). One of the main tenets of Collaborative Practice is that we focus on what is best for the children and it appears that the research from Florida refers to 84% of collaborative matters involving children. It seems clear that collaborative process is a good fit for families!

While we work in teams in the collaborative process, we frequently encounter frustration with the personalities of the team members. In the Harvard Business Review “Building Better Teams”, K.M. Eisenhardt, J.L. Kahwajy and L.J. Bourgeois III, suggest research based tactics to increase teams effectiveness; for example, “focus on the facts” because it “encourages people to focus on issues not personalities” (in the collaborative process, we commence by gathering and organizing all the necessary documentation); “multiply the alternatives” because it “diffuses conflict” and it “concentrates the energy on solving problems” by increasing the “likelihood of obtaining integrative solutions” (in the collaborative process we commit to generating multiple options) and to work towards “common goals” because studies show that “common goals build team cohesion” by stressing the shared interests of the members in the outcome (in the collaborative process, we undertake to work together to fulfil the goals articulated by the clients).

Often the challenging tasks facing the conflict resolvers nowadays require the assembly of team members from non-legal backgrounds, highly educated specialists who can bring their knowledge to assist with various aspects of conflict. Legal issues are left to the lawyers and sometimes they’re relatively straightforward. However, it is not so easy to deal with highly emotional clients, clients exhibiting mental health problems (in particular post Covid depression and anxiety) or complex family business issues. To address these clients’ needs, we include other professionals such as psychologists and accountants to increase the diversity and effectiveness of the team. All these highly specialized team members are trained in collaborative process and sign the Participation Agreement. In other words, we collaborate with inclusivity in mind.

How is inclusivity defined? The Cambridge dictionary refers to it as “the fact of including all types of people, things and ideas and treating them and all fairly and equally”. Collaborative Practice encourages inclusivity of perspectives and values the unique qualities of the team members. But how can we practise inclusivity so our clients could hear it loud and clear? Welcome to the power of “we”, the humble pronoun. In December 2022 in “Psychology Today”, V. Fridland writes about “an impressive array of research” that offers a lot of information about our lives by analyzing the use of pronouns “I” and “me”. Studies have shown that partners using “we” experience more marital satisfaction. After breakup, when they use “I” or “we” it may indicate that they have adapted to their new post separation lives and those who continue to use “we”, referring to their ex and themselves, were found to be “less adjusted to their splits”. So, what should we listen for when we are in our offices immersed in conflict with our clients? Let us tune into the “we” sound and let us also use the pronoun “we” when we get stuck. Why? Research shows that partners using “we” have “higher quality interactions” and, believe it or not, “more positive problem solving”. So next time you have a Collaborative Practice meeting listen for and use the mighty pronoun “we “and flexibly include it in the discussion.

Let us travel back to 1999 and reflect on the following answers provided: 78% of respondents then strongly agreed that it took “too long for courts to do their job” and 77% strongly agreed that it “cost too much to go to court”. Sounds familiar in 2023? Let us find out what answers were recorded in response to the following statement: “lawyers try to help make divorce simple and less painful”. Well, 50% strongly disagreed with that statement (only 28% agreed and 21% neither agreed nor disagreed). With Collaborative Practice expanding to all corners of the world (since its emergence in 1990) let us all continue collaborating with flexibility and inclusivity always focusing on offering collaborative practice as a time effective and cost reasonable alternative to the vulnerable people otherwise facing impenetrable language and byzantine procedures.

Dr. Anita Dorczak

Collaborative Lawyer

Dr. Anita Dorczak, Ph.D., M.A.,LL.B., PC, Cert.EM, CLP, is a collaborative lawyer, speaker and trainer with certificates in Listening, Elder Mediation, Parenting Coordination and MBSR. She is passionate about innovative approaches to conflict resolution providing workshops and presenting internationally at legal and non-legal conferences in Europe, Australia and North and South America.

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