I can help you bypass the truly awful adversarial process of the courts at the time of the breakup...
So you want to be a great collaborative lawyer…?
I am very pleased to welcome Lynne Passmore of Lynne Passmore Family Law to this blog. She set up her DR practice the same day I did; we felt we had to change the narrative for separating couples from the traditional court approach, to anything but that. In particular, Lynne and I have worked together collaboratively and we have learned a lot in the 10 years since we set up. First up, timing.
What’s timing got to do with it?
My experience is that many cases would do better if the lawyers waited. Obviously, I am not talking about urgent applications to protect the person or the financial asset. But rather the couple are often not in the right place to move things onward. It’s at this time I make a strong recommendation that my client and partner take a step back and get some help with the emotions. What do you do Lynne and where to you refer?
I couldn’t agree more, Jo. In the past I’ve had cases that have fallen off the rails early on because of a rush to get things done. Often, one party tries to push things forward before the other is ready and unable to make decisions because of the fug in their brain brought on by their raw emotional state. I always recommend involving a family consultant. They can work individually with the parties or jointly to help to prepare them for the process and can help to hold the emotions during joint meetings. We’re fortunate to have a number of experienced family consultants in our local pods. I’m so glad that all those years ago when we set off on this journey we spent a lot of time meeting therapists and counsellors and building up our relationships with them, encouraging them to take on the role of family consultants. It’s essential for the couple to have this additional support and makes the whole process so much easier for us too.
What about Parenting?
It’s great to have the benefit of access to a range of professionals with amazing skills and I’m so glad I learnt to ask for help for my clients from the right person for the job. The family consultants are generally better placed to help with tricky issues around parenting than we are and can help with the preparation of a parenting plan which can be a piece of work which develops over time. In some cases, the parents will benefit from attending a bespoke Parenting after Parting programme alongside the collaborative process to help them transition to working as separated co-parents. Locally Penny Coombes of Iris Brighton established a programme some years ago when we asked what she could do to help parents and she now receives very positive feedback from the couples who work with her. This makes our role so much easier. What else do you think helps us in the process Jo?
Do what you say you’ll do and do it quickly!
There is usually work to do following our meetings. For example, drafting the minutes or drafting letters of instruction to experts. I say do things speedily, the wheels come off if you don’t. Our clients really need us to be active participants and move things along. Sometimes, things unravel if we don’t hold the process safely in this way. Don’t leave the minutes for a month or two. Or sometimes I have had them not materialise at all! They are a priority as is all our work, the same as any court deadline.
As we are collaborating there isn’t the stress of having to think of everything first time around. Your collaborative friend will help you get it right for your client as well as your own. So, work together as soon as possible so it can be as good as it can be.
It might be that your collaborative friend is really up against it with work and maybe you could take on the first drafting to help out. Certainly, this is what happens when one of you is on holiday. It’s crucial that once negotiation is on its way the client should not wait for stuff from us.
So, the collaborative lawyers are a team. How else do you notice lawyers working in a team Lynne?
The team doesn’t just extend to the lawyers and family consultants. As I say, bring on board the right expert for the job. We definitely don’t have all the answers. A Financial Coach can be an enormous benefit to help one party or both understand their emotional relationship to money and how that may be impacting on their decision making. A financial advisor can help with modelling future income needs and of course in any case with pensions involved we are going to need a pension expert. Having relationships with these professionals and inviting them to join our Pods means we develop our personal and professional relationships which helps us and our clients in equal measure
Brief and debrief
Strong relationships help enormously and are very important when it comes to de-briefing. Its fundamentally important that as part of a team we can feedback to one another the positive and possibly not so positive experiences each time we have a joint meeting. We all learn from what we and our teammates do well and do less well. We need to be able to share our experiences and to take on board feedback. It’s easier if you know and trust someone to have frank conversations but as we grow and gain more experience, we should have the confidence to brief and de-brief with people who are new to us. We should never assume that we know someone well enough to skip the pre or post meeting conversation. What happens Jo if there’s an ‘elephant in the room’?
The Elephant in the Room
This is often called, ‘Stating the blooming obvious’, ‘calling it out’ or probably what we really mean is to be gently curious. There may be something that we, as practitioners, feel we have to or would rather skate around. Examples might include; the new partner, the inappropriate expenditure, an unexpected pregnancy, the couple’s sexual behaviour sometimes even including rape or domestic abuse. Now, it may be that it is not necessary to ‘go there’. It could be harmful to do so. But often the best way to be is to be curious about it.
There is a natural tendency in all of us to make assumptions about why people are upset or in conflict or being defensive about something. Clients need to know that we have listened and understand. We can do this by acknowledging or summarising what they’ve said. And then explore it. (That’s where the elephant makes an appearance!).
So, we might ask in our curious way, ‘what are you afraid will happen if s/he meets the new partner?’ and explore what comes out. Often, it’s just as important for the other party to hear what they say, even if the lawyers can’t quite grasp the problem.
We will then need to pick out behaviours we see and ask about them. ‘You seem hesitant.’ Or ‘I can see that you are really upset by…..what would happen if?...’
[Indebted to Jacinta Gallant’s ‘Insight’ training ‘Deepening without Drowning’.]
If both Collaborative practitioners know we are going to ‘go there’, then they can be supportive and helpful. But we also need to be ourselves. Lynne can you think of examples when our clients perceive us as ‘human’? The reading of the Anchor Statements springs to mind…
Lawyers are human too
Hearing the couples’ anchor statements is always very powerful. I always make sure that I am not involved in the preparation of my client’s anchor statement and invite them to work on this with the family consultant if there is one on board. We therefore all hear the statements at the same time. They are often very moving, and I have certainly shed a tear on more than one occasion.
It is really affirming to acknowledge the emotions, hopes and fears they express but I think we should go one step further and share how we are feeling. ‘I was anxious coming into the meeting today’ or ‘I’m feeling really hopeful…’ If we are inviting the sharing of feelings, we should feel safe to share too. We are all going through this process together and I think this definitely shows them that we are human.
We are also going to be open about giving advice. This is one of the major transformations when you begin working collaboratively. We express our opinion/share our advice in front of our professional colleagues and this can sometimes leave us feeling vulnerable. Of course, we are not, as our team is there to hold us. Experience confirms how powerful it is for the couple to hear potentially different views from their legal representatives in the same room.
I think there may be some misconception that when working collaboratively we don’t give legal advice to our respective clients outside of the joint meetings. This should not be the case at all. It is our job to provide advice in order to help them make informed decisions. The difference is that we don’t give positional advice. We don’t unrealistically raise our client’s expectations or give them false hope. They need to understand their options but also need to enter the process with an open mind about the solutions which may be available and which we will work out together. What’s your experience Jo of how collaborative lawyers approach giving advice?
Don’t write offer letters (please and thank you)
Usually, this is managed well both in and outside of the meetings. The important thing is not to use sessions between our 4/5-way meetings as an opportunity to be tactical. Often our clients’ will ask both lawyers for our advice in a meeting e.g. our interpretation of the law in their case. We can then, sometimes, agree to disagree at the same time and before our clients. Ultimately, it’s their decision what they do. We will have to inform/advise them if they have agreed something that a Judge would never order (as usually they are likely to need a court order). They would be wasting their time and money if we let them carry on. This rarely happens. What often happens though is that clients’ come up with novel ways of thinking about a settlement and we have to work hard to draft bespoke clauses that will give them legal effect.
The thing that depresses me and makes my heart sink is if I receive an offer letter/email from the other collaborative lawyer ahead of a 4/5-way meeting. This flies in the face of what we are trying to do. It is common to receive such letters in a traditional way of working; these are expensive to draft and most often positional. It really means that the solicitor isn’t thinking about the case from everyone’s viewpoint, only their own client. It’s hard to handle. Have you come across this Lynne?
Getting another viewpoint
I have occasionally received ‘traditional’ correspondence and worse still without prejudice settlement proposals. Yes, the heart sinks, but my immediate reaction is to pick up the ‘phone, discuss what’s going on and agree how to deal with the correspondence/next steps.
If the correspondence relates to the issue of advice and, in particular, a difference of opinion then we might need to consider enlisting the help of a neutral third party, for example jointly instructing collaboratively trained counsel to provide a joint advice or early neutral evaluation. If we have reached the stage of a partial agreement and there is an outstanding ‘thorny’ issue then in my view arbitration should be an available tool in our tool-box, but there remains a debate about whether this is appropriate in the collaborative setting. A whole other blog maybe?
Personally, I love working collaboratively and as a team player. It’s a steep learning curve but well worth the investment. It’s been great to work with you over the years Jo.
And you Lynne. The world has changed in the 10 years since we set up, the courts are a total mess and we are all urged to work together to avoid court. Let’s keep doing just that.