April 2016 Bar Bulletin
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April 2016 Bar Bulletin

A Model Insight into Collaborative Advocacy

By Carol Betts

 

Most clients don’t know what to expect when they consult a divorce attorney. Although often confused and emotional, I believe they do know what they want — to feel safe and tended to. For many lawyers, the collaborative law process is similarly mysterious. Yet experienced practitioners know it is simply another way to advocate for clients and their goals.

Lawyers generally embrace the idea that advocacy includes negotiating settlements. Merriam-Webster defines “advocate” as one who “pleads the cause of another,” but also as one who “supports or promotes the interests of another.”1 Over the past year, the Collaborative Law Section of the KCBA has explored what advocacy looks like in a collaborative family law case. Collaborative professionals have demonstrated the process while working with hypothetical clients Adele and Barbara, who have three children.

In September, collaborative attorney Kevin Scudder skillfully demonstrated the requirements of Washington’s UCLA (RCW 7.77 et seq.) in his initial consultation with Adele. He screened for domestic violence and explained the lawyer disqualification provision while assessing Adele for the collaborative process as required by the Act.

His advocacy began at this meeting as he recorded interests revealed by Adele’s desire to avoid court and her strategies (read “positions”) for resolving the issues. He asked her what hopes and dreams she had for herself and her family five years down the road. He began learning what motivates Adele and how she responds when she judges herself or feels judged by Barbara.

Adele learned that the collaborative process involves a multi-disciplinary team approach to restructuring family relationships. Scudder explained that the team, including the clients, would work together to support her interests. And, since her interests included reaching agreement, he would also show consideration for Barbara’s interests because that is how agreements happen. A roadmap for this voluntary process was presented:

1. All team members sign the Participation Agreement.

2. Discussion of ground rules, including an agreement that neither party will threaten court action to achieve a negotiation advantage and the requirement that communication be open, transparent, respectful and honest.

3. Identification and prioritization of interests and concerns.

4. Address temporary issues.

5. Gather and exchange information.

6. Brainstorm options and develop settlement scenarios.

7. Evaluate options.

Adele, a conflict avoider, who generally takes an “all you need is love” approach to life, was attracted to the collaborative process because she felt insecure when faced with Barbara’s typical dispute resolution style — laying out facts and data, presenting a bottom line and then continuing to press logic and data until Adele became weary and gave in.

Barbara had always handled their finances. Adele put a lot of energy into raising the kids and even though she wants what she is “entitled to” financially, she doesn’t want to harm the children in the process. She doesn’t want to destroy her relationship with Barbara either.

After consulting with another trained collaborative attorney, Barbara was on board. She feared that Adele would be overwhelmed by facts and figures leaving her unable to make a decision. She believed a traditional legal process would allow Adele to avoid the conflict until a judge had to decide it. That would not meet Barbara’s needs for autonomy, confidentiality and efficiency. She felt the collaborative process provided the support Adele would need to feel confident making decisions.

Even though she wasn’t thrilled at the expense of divorce in any process, Barbara’s need for control was met by having a say in selection of the allied professionals. Barbara also liked the idea that she would work with Adele to provide needed information to one financial neutral.


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