by Michael Dwyer

Imagine: You’re a lawyer retained by a new client who wants a divorce. Now you’re faced with making first contact with the other lawyer. How will that call go? What can you expect?

If you’re a lawyer used to operating in the traditional adversarial family law system, your call may be frosty or cordial or friendly, depending on your relationship with the opposing attorney.

But, rest assured, it will contain some degree of caution and reserve. The chance that you will be facing each other as opponents in the courtroom, battling over legal claims, guarantees some element of suspicion and hesitation will be present in the conversation, even if we try to disguise it.

Why the Suspicion?

In the situation I described above, the sympathetic nervous system is engaged, causing our body and minds go on alert, even with friendly colleagues. It’s the nature of the adversarial system.

When contrasted with calls placed to a lawyer on a collaborative divorce case, the contrast couldn’t be starker.

The Adversarial Divorce

In an adversarial call, I will experience habitual and well-trained tendencies. I will do most of the talking. I will take control. I will start on offense, emphasizing the strength of my case, demonizing the behavior of the opposing spouse, and stressing the plight of my poor victimized client.

I will not listen well to my opponent.

Instead, I will cut her off, minimize her points, and argue back.

While these are generalizations, if I don’t do these things I will have some level of inner anxiety because I worry I am not doing my job well enough.

This is, after all, what a lawyer in the adversarial system is trained to do.

The Collaborative Divorce

In a collaborative case, I know that I will never face my attorney colleague in a courtroom battle.

My body can remain relaxed, my sympathetic nervous system will remain in calm control. My breathing will remain steady and full, my blood will not begin to boil.

I will place (or receive) the call and simply listen. I can strive to understand what my colleague (who is not my opponent) is trying to communicate.

I do not have the urge to attack.

From the outset I can direct my focus towards resolving, with my colleague, the mutual problems that clients will face and need to overcome in order to obtain their divorce.

The Reality of the Difference

While I am using hypothetical examples in my article today, I have experienced these contrasting calls many times now. My colleagues in collaborative practice report the same phenomenon.

But this is not really about the comfort level of lawyers. The significance of this contrast lies in how it translates into an entirely different experience for our clients.

Our clients, who are already in a horribly stressful period of their lives, will absorb and adopt the attitudes of their lawyers. If the lawyers from the get-go are armed for battle, clients will follow their lead and do the same.

Of course, there are usually explicit behaviors that manifest this attitude, such as common instructions by lawyers to clients not to talk to their spouse. This arises out of fear of the battle ahead, and the negative consequences of saying something that can be used against a client at trial.

A Changing Tide

It is hardly surprising then that clients are voting against the adversary system with both their feet and wallets. Due to the hostility and financial waste built into the adversary system, the vast majority of divorcing couples avoid retaining lawyers and instead choose to navigate the court system without representation.

We are seeing clients come to non-adversarial processes such as Collaborative Law and mediation because they want professional support but wish (and need) to remain amicable.

Very often, clients are working to transition from married partners to co-parents, and the quality of their relationship during this challenging transition period is critical to their future parenting success.

In the polarizing environment of the adversary system, where even cooperative and respectful lawyers find it hard not to take on the role and tone of protective advocacy, couples find it nearly impossible to make this mutual, positive transition to co-parenting.

On the other hand, the entire focus of the non-adversarial Collaborative Law approach is to help divorcing couples retain the strengths of their co-parenting relationship, collaborate on solving mutual parenting problems, and minimize harm to their children.

A Collaborative Lawyer’s Unique Approach

While the lawyers’ loyalty remains, first and foremost, with their individual clients, the lawyers work with their clients to develop a greater understanding of all of their client’s needs.

Rather than trying to maximize a client’s individual gains at the expense of the other spouse (a hallmark of the adversary system), lawyers and clients both develop a deeper understanding including the interconnections of all people in the family system.

Collaborative Law assumes all members of the family must thrive to ensure the wellbeing of any single family member. If a mother or father fails to emerge with satisfactory and durable settlement terms, the children will suffer in one way or another.

When negotiations hit a challenging bump, as they inevitably do, it is essential that the lawyers stay engaged in collaborative dialogue and work through the problems. Collaborative lawyers learn to avoid unhealthy approaches to conflict, including aggression (the threat of litigation) or avoidance (an unwillingness to negotiate).

Is this not, after all, the very model we want our clients to adopt as co-parents?

This is not easy. Staying engaged with, and working through conflict, cuts against our evolutionary fight or flight hard-wiring.

In effect, the adversary system is our society’s attempt to provide civilized rules of conduct in place of going to war to resolve our conflicts. We should appreciate this for the major advance it is.

The Big Question

However, the world, our society, and our legal system are now wrestling with the next very big question:

Can we learn to skillfully negotiate our differences?

The adversarial approach to divorce has caused great damage to many families. It should be reserved only for those relatively few divorce cases that can’t be resolved with sophisticated non-adversarial processes and professionals.

This is where the collaborative practice model, and the training that collaborative lawyers undergo, can make a huge difference. Collaborative practice provides a healthy framework for lawyers to stay engaged with, and work through, the problems that arise.

The special training collaborative lawyers undergo marks a transition. Rather than focusing training on the process of trial (characteristic of the adversary system), collaborative lawyers train in modern negotiation skills and learn to work collaboratively to remain engaged with, and work through, conflict.

Of course, there will always be some lawyers that are better than others with this new conflict resolution approach than others. But in general, the difference in the way lawyers handle conflict in an adversarial versus collaborative approach is quite pronounced.

For a really excellent vantage point from which to appreciate the differences, all you have to do is listen -- to the lawyers’ first phone call.