“If you change the way you look at things, the things you look at change” - Wayne Dyer
You have been to an introductory collaborative practice training. You’ve committed to daily actions to working in this way and you have even dried your sponge to do so. Frustratingly, you still don’t have any collaborative process cases. The possible reasons for this are numerous but, here’s the thing, you can still be a collaborative lawyer!
Luke Skywalker didn’t wake up one day as a fully charged Jedi mind master. Did he sit around all “woe is me” “It’ll never happen. I’ll never feel the force, blah blah blah, whine, whine, whine”? OK, granted, he needed the occasional pep talk from Yoda but what he did was he got on with practising and learning his craft. He just did.
“Do or do not do. There is no try” – Yoda
What does this mean for you, sitting in your office wishing you were working as a Collaborative Lawyer? Rather than succumbing to a sense of hopelessness and inevitability that you will never use Collaborative Practice and that the training was a waste, think of this as your time to serve your apprenticeship and build your skills and mindset. Even without collaborative cases, you have opportunities to practice collaborative process and forge your identity (internally and externally) as a collaborative professional.
Mind Games: I think I am, therefore I Am (apologies Descartes).
Being a Collaborative Lawyer doesn’t begin with your first collaborative process case. It starts when you begin thinking like one.
How do you describe your role as a lawyer? How do you define your philosophy and approach to conflict resolution? How do you succinctly and clearly articulate this to others?
Do you need to reframe any of this?
Do you need to reframe the reputation you have about town as a lawyer to be more congruent with your philosophy and collaborative approach?
Reflecting on these themes and articulating your philosophy to yourself and others helps to engrain your collaborative mindset and with that, starting to act in line with this.
Step. Away. From. The. Pen.
One way to start working as a collaborative lawyer and put into action your collaborative practice skills is to stop with all that note taking as though you life depends on it. It does not. A case doesn’t need to be a collaborative process case for you to approach each client consultation with a focus on listening to understand, rather than note taking.
For lawyers, being asked to give up their professional armour of pen and notepad can be as frightening and uncomfortable as it would be for Linus from Peanuts to be asked to surrender his blanket.
When I first started kicking my note taking habit, I felt like Linus too. I went cold turkey. I took no notepad or pen into the room with me but I did have a whiteboard. I could use the whiteboard to capture any key themes or notes and take a photograph of it afterwards. Having to stand up, walk across to the whiteboard to make a note sure does make you conscious of whether you really need to note something or not.
This approach served up a range of other advantages. It worked well for visual learners I was working with. It also made the note taking a collaborative action which I would invite the client to undertake with me. It enabled us both to be certain that understandings were correct and often helped my clients get clearer about, and better articulate, what was going on for them and what was important to them.
Getting rid of my notepad didn’t mean an end to notes. I got into the habit of scheduling enough time into the appointment so that after the client left, I could quickly write up a “brain dump” file note. Our memories are amazing things. I was blown away by what you can recall when you’ve been attentively listening and seeking out understanding and not having half your brain focusing on capturing notes of what you are hearing and why you left your favourite pen, the non-scratchy one, in your office.
Mine for Your Client’s Interests
No matter what resolution process you are working with your client through, even if it is litigation, taking the time initially and throughout the process to explore your client's interests will serve you both well. Doing so helps…
avoid the errors and frustrations that can arise when we assume we know or understand what is important to our client
build your relationship with your client and with that, their satisfaction in you and the service they received. Word of mouth referrals. Check.
you work more efficiently. You don’t venture down rabbit holes when you know what you are actually looking for is a hare.
Identify opportunities to move from a 'litigotiation' to an integrative, interests based negotiation
divine more creative, appropriate options.
assist your client to assess the possible settlement outcomes, with a measuring stick that is marked with clear measures.
Reframe The Process
Last year, I travelled around the South Island presenting a workshop on Collaborative Practice. I usually ask attendees what brought them to the workshop. At the first workshop one attendee announced “MARIA (not her real name) DARED ME! She did the training last year and now she refuses to put anything in a letter. She just insists on talking things through with me and having phone calls instead so I thought I had better come along and find out more”.
Go Maria!
I caught up with Maria at another workshop later in the day and she confirmed that although she doesn’t have any cases that are using the Collaborative Process, she is integrating into her everyday practice the skills and approaches she has learned. In doing so, she is embedding and developing her collaborative practice skills and maintaining a more fulfilling practice that is aligned with her values. Critically, she is also building her opportunities for collaborative process cases by piquing her colleagues' interest in CP, meaning they are likely to train and when they do, she will have a greater chance of working in a Collaborative Process case with them. She is winning at this!
Within my own practice, I also quickly decided to adopt an approach of first picking up the phone to call other counsel in order to work a problem and take a 'temperature check' of things. Doing this straight away in a case, means you have an opportunity to frame the process ahead towards one that aligns more closely with your collaborative approach and values. Sometimes, you can hear the cognitive dissonance happening for the other lawyer who was grappling with the conversation not going down a traditional issues/rights/write a letter/let the lawyers sort this/litigious process pathway.
Getting people together safely to problem solve is another way to put into practice a collaborative lawyer's mindset. As Brene Brown says, “People are hard to hate close up. Move in”.
In round table settlement meetings, your collaborative practice approach can really come to the fore and you have a brilliant opportunity to reframe the negotiation to a more interests-based one. I use these as opportunities to move from the positional discussions that can often occur to genuinely, with curiosity, asking questions of my client and the other party so everyone can learn more about what is important to them, identify commonalities, and move (even a teeny bit) closer to understanding.
One of the critical mindset shifts for many Collaborative Lawyers is that we don’t need to have all the solutions. We are not the keepers of the wisdom our clients need. They are. We just have some keys to help them access it. As a collaborative lawyer, in all your cases, you can start helping your clients find their own solutions as often as possible and give them opportunities as often as you can to problem solve with the other party. I saw this difference in mindset beautifully displayed in a training where the parties were talking about how to tell their children of their separation. One training lawyer jumped in and said he could send them a helpful script for this (!) while the other said, “would it be helpful for you both to work that out now together with us assisting if you need it?”.
I hope this has given you some food for thought around how you can be a collaborative lawyer even without having any Collaborative Practice cases. Start thinking like a collaborative lawyer and a world of opportunities to start working like one will start appearing to you. The more you take those opportunities to work like a Collaborative Lawyer, the more you will think like one and so it goes on. Pretty soon you will be confidently saying “I am a collaborative lawyer”, cases or not.