A Thriving Collaborative Community as A Source of Flexibility and Optimism

Reflecting on the ideas of flexibility and inclusivity in the context of conflict resolution evokes a sense of optimism. Flexibility is defined as “able to be easily modified to respond to altered circumstances or conditions.” A person is flexible when “ready and able to change so as to adapt to different circumstances.” In prior times, litigation was the primary option available to a client facing a potential legal conflict. That client typically hired a lawyer and the lawyer set in motion the legal machinery. The court opened a case; labeled the parties as adversaries (plaintiff versus defendant); and everyone—lawyers, clients, and judges—were required to follow, comply with, and abide by fixed and established procedural rules. There was minimal room for flexibility.

Legal negotiations have always offered an option and lawyers have engaged in legal negotiations outside of court throughout history. Processes like arbitration and mediation also evolved over time as popular alternatives for resolution of disputes. In response to the increased demand for conflict resolution services, the number of professionals who have expanded their practices to “adapt to [those] different circumstances” has steadily increased. Standing on the “shoulders” of mediation, collaborative law evolved as yet another option within these ever-expanding processes for constructive conflict resolution. With the growth of interdisciplinary collaborative practice, there has been a marked increase in the number of professionals from multiple disciplines who have devoted themselves to non-adversarial, consensual conflict resolution. With this ever-increasing variety of conflict resolution processes and professionals available to clients seeking a non-adversarial means of resolving their conflicts, there is considerable reason to be optimistic.

Consistent with the requirements of the Uniform Collaborative Law Act, it is common these days for an initial client interview to focus on the availability of multiple conflict resolution options in addition to traditional litigation. At this early stage in the clients’ search for a process and a professional (or a team of professionals) that best “fits” their situation, flexibility is required because every client and every situation is unique. When fully educated, informed clients choose a consensual, non-adversarial process like mediation or collaborative law, they are opting to avoid blind submission to the rules and demands of a legal system designed to move all cases in the same general category by force if necessary, toward a conclusion, also known as a final judgment.

The availability of options which are “able to be easily modified to respond to altered circumstances or conditions” requires a robust community of professionals who can meet the needs and demands of the clients. If the clients prefer mediation, there are mediators in many communities such as retired judges and lawyers who practice mediation as well as collaborative law. As a team process, collaborative law is an available option only where there is a viable and thriving community of collaborative professionals. During the early client consultations, the collaborative lawyers and clients in such a community enjoy maximum flexibility and potential for inclusivity. Responding to the needs and interests of the clients, collaborative professionals and clients will assemble a team that is tailored to each situation. Depending upon the demands of each situation, one or more mediators may be included to assist at various stages of the process. Compared with prior times, these days clients seeking professional assistance in a thriving collaborative community may choose a non-adversarial process that can be “modified to respond to [their] circumstances.” When the clients choose collaborative law, they will be provided added assurances in the form of a formal collaborative “participation agreement” which are contractual commitments grounded upon a significant level of trust among all participants. Those commitments include mutual promises that tactics such as threats of adversarial litigation will not be employed.

Trust among lawyers is not necessarily “new.” Veteran lawyers (“old timers”) will tell you that they trusted each other. They decry the lack of “civility” among lawyers these days. The collaborative participation agreement is an essential feature of every collaborative matter because it requires everyone to engage in collaborative, interest-based negotiations during the process. In effect, that agreement and the community as a whole are grounded upon a mutual sense of trust. But adhering to these contractual commitments is not always easy. The choice to make the “paradigm shift” into fully consensual collaborative conflict resolution requires more than an introductory collaborative training or labeling oneself as a “collaborative lawyer” on a website or business card. Particularly in highly emotional situations, lawyers sometimes slip into practices that replicate the type of legal negotiations that occur in adversarial cases. The negative consequences of such a paradigm slip can be devastating to the participants and to the process because all participants rightly expect full adherence to the promises in the collaborative participation agreement. For a collaborative community to remain viable and to thrive, all of the professionals must continue to study, develop and improve their skills. A lawyer who has fully embraced the collaborative paradigm views each case as an opportunity to improve those skills. This includes the important process of debriefing with collaborative colleagues. A competent collaborative lawyer views the debriefing sessions among collaborative professionals as a valuable opportunity to receive and to give constructive feedback. In this way, collaborative practitioners rely upon and actively demonstrate a degree of “civility” that may have fallen through the cracks in our professional practices over the years.

Within a thriving community of professionals who are genuinely committed to non-adversarial, consensual conflict resolution there is far greater potential for flexibility and inclusivity than ever before. With such flexibility comes a very real sense of optimism for future clients seeking professionals “ready and able to change so as to adapt to different circumstances” and processes “able to be easily modified to respond to [each client’s] circumstances or conditions.” The collaborative community welcomes any lawyers who are interested in exploring the extraordinary practice of collaborative law and who are willing to make the commitments necessary to be competent collaborative practitioners.