Advocacy in the Collaborative Process
As collaborative attorneys, our clients sometimes voice concerns about whether we can “fight” adequately for them, or if our commitment to resolution might somehow overshadow our commitment to achieving our client’s goals. Our clients want to know if we can be zealous advocates for them.
Collaborative Divorce is a private, respectful, non-adversarial process for resolving all of the issues that arise when couples separate. The attorneys and their clients work together to reach a series of resolutions that meet the needs and interests of the whole family. The negotiations take place in a series of face-to-face meetings (the “four-way meetings”) with the clients and their attorneys.
Clients might be wary of the Collaborative Process because they are not used to a non-adversarial dispute resolution process and that does not look like the legal process that they see on television. As a society we have grown accustomed to the image of a legal system where attorneys pound their fists and strive to make the “other side” look bad. We expect to see one side win, and the other lose. It doesn’t occur to us that both sides can “win”.
All lawyers are charged with the responsibility to zealously advocate for their clients. Collaborative attorneys are no different. The rules of professional responsibility describe a lawyer’s obligation this way: “zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” We couldn’t agree more.
But what exactly is zealous representation? The word zealous has acquired, over time, a negative connotation of being fiercely partisan or uncompromising. When we refer to someone as a zealot, we do not generally mean it as a compliment. The actual definition is somewhat different, though: “zealous,” according to Merriam –Webster, means ardently active, devoted, or diligent; enthusiastic, eager, intense, passionate, warm. (When did you last meet a warm litigator?)
In the arena of litigation, the word zealous has come to mean something we, as collaborative attorneys, think is destructive. A zealous litigator of a certain type heightens hostility, polarizes spouses, and strains families. They extend and exacerbate conflict, rather than looking for ways to defuse it. Everyone knows someone who has struggled through an adversarial divorce; those divorces are expensive, stressful, and devastating to the children.
So, what does advocacy look like in collaborative cases? It looks different from court and from the adversarial processes (like court ordered mediation) associated with court. Collaborative attorneys work with their own clients to identify and articulate their interests, and to advocate for themselves. Especially in those cases where the clients are also parents, collaborative attorneys want their clients to be able to have productive ongoing conversations that are critical to being effective co-parents after the divorce. That’s hard to do with an ex-spouse who has vilified you in a public arena.
It is unlikely that a divorcing spouse will get everything exactly as they envisioned or hoped for, regardless of what
process they choose. Judges can be unpredictable; family law is, by design, subject to interpretation and discretion. The collaborative process allows spouses to work together to create solutions that make sense to them, for their unique situation. The outcome may look different than the notion that you started with; the collaborative approach is a dynamic process that takes shape with the input of all of the parties involved, including your own zealous advocate.