Getting Collaborative Cases - the first step



Here’s a scenario that may sound familiar to you –


You are over the stress of practice. You feel frustrated, perhaps even disillusioned, with how many family law files are conducted.  You know the ways – litigation, contentious negotiations, adversarial correspondence, inflamed conflict. You try to be pragmatic and work hard not to inflame things. Hey, you always write an amicable opening letter to the other party and work hard to help your client adopt a reasonable approach. But you can’t control the other lawyer or the other party. You feel worn down by it all and catch yourself dreaming of opening an artisanal bakery or a florist or a charter boat...anything but this.

A colleague tells you about this new way of working with family law clients. She went to a training on it and has come back full of renewed enthusiasm for law. You think “I could do with some of that”. It sounds so sensible and just like what you and your clients need so off you go to a Collaborative Practice training.


The training is quite challenging to some of your thinking about your practice of law (what? no letters?! agree not to go to court?!) but by the end of it, you are also buzzing. You don’t want to practice in any other way. You have found the way you will carry on working in family law with a lot less stress, better outcomes for clients and a happier practice (and life!) for you. Things are looking up.


You return back to your office, buoyed and optimistic. There are numerous phone messages and emails awaiting you. There’s a new Lawyer for Child appointment from the Court that requires an urgent report. You’re not sure when you’ll manage to get to it because, between client meetings, new clients, court appearances, a whole lot of affidavits and agreements to be drafted and running a busy practice, there’s no white space in your diary. BUT you WILL get on to doing something about getting a Collaborative Practice case – just not today…probably tomorrow if you get out of Court early…definitely next week once you get clear of all this drafting…


Fast forward six months – you are still chasing the constant stream of emails and phone messages. You have more new clients, Lawyer for Child appointments, affidavits to be drafted, clients to see, staff to manage. The diary still has no white space. That feeling of frustration, disillusionment and exhaustion has reclaimed its foothold within you. You’re busier than ever but there have been no collaborative cases. None of your colleagues have any either.


You have a problem with there being no collaborative cases, right? No, you have a sponge problem.


We all have collaborative cases out there. Some are already coming in the door in disguise (more on that in a future blog). But they are not simply going to appear to us after returning to our offices from training, without us doing a few things first. When I returned from Collaborative training, it was to the above scenario. I realised that changing my practice to one of Collaborative cases and not getting sucked back into the vortex of "practice as usual" was just like making any other significant change to my business or starting a new business – it doesn’t happen overnight and some key strategies need to take place first. You wouldn’t decide to change the focus of your practice to estate litigation when it is currently 100% employment law and expect to arrive the next day to a reception full of estate clients.  No, there’s a whole lot of actions you need to be very intentional about taking first and those take time. Time you likely don't have. So, my first action was to create myself some time to implement the strategies needed in order to move into the world of Collaborative Practice.

What I didn’t realise at the time is that I was drying my sponge. Nancy Cameron QC spoke about The Dry Sponge Theory in an IACP webinar. Envisage a dry sponge being held in a bucket of water. You remove it, soaked full with water, and the bucket is left half empty. Now, imagine putting an already drenched sponge into a bucket of water. How much new water will it take on? Very little as it is already at capacity. We can’t take on collaborative cases and the work required to create change in our practices if we are already at capacity.


When I was drying my own laden sponge, I set about pruning (which is far more intentional than wholesale hacking!) my diary.  I analysed where my time was being spent and how that differed from what my ideal week would look like. I considered what activities made me the most money; what made me the least money (after all, we have to pay the bills); what work I looked forward to doing and got a sense of pleasure in doing; what work I felt resentful about, doing it out of a sense of obligation or duty or expectation; what work I would miss if I wasn’t doing it and what work I wouldn’t think twice about if it disappeared. Using the information I gleaned from that analysis allowed me to remove the work I needed to in order to create collaborative work. My sponge was no longer so full that I couldn’t take anything more on.


So, how is your sponge looking? Do you have the space you need to implement a committed and intentional plan for working on collaborative cases in 2020? If you don't, what are you going to stop doing in order to dry your sponge? I'd love to hear!