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Reprinted from The Intelligencer*
Appeared May 10, 2003 Can Old Lawyers Learn New Attitudes?
Originally I thought of starting this essay with the question: Can old lawyers learn new tricks? But that word “tricks” has unpleasant connotations and we lawyers already have a bad enough reputation for being tricky, scheming and nasty. So even though it’s not as catchy, let me put the question this way: Can old lawyers learn new attitudes and skills? The answer, I’ve found out recently, is a resounding yes. Those of us who practice matrimonial law sometimes think we need our heads examined. This can be a horrible occupation. We see people at their very worst, while they’re undergoing one of the most traumatic experiences of their lives—separation or divorce. They’re under extreme stress. Many come to us explicitly seeking the most aggressive lawyer they can find, to teach their spouse a lesson, to gain revenge, to fight their battles. We are expected to be actors or poker players when we’re negotiating, warriors when we get to court. We compose scathing letters and affidavits. We try to intimidate the opposing spouse—and often, the opposing lawyer. When the case is over, our clients still aren’t usually very happy. They’ve spent a lot of money, been tormented by opposing counsel, and sometimes had huge chunks of their lives dictated to them by a stranger in black robes. Often, they’re angry at us. But that’s nothing compared to how the opposing spouse feels about us. Most matrimonial lawyers get heartily sick of it after a few years. But most of us could never figure out what to do about it. Fortunately for us, along came lawyer Stuart Webb of Minneapolis. In 1990, he decided to leave the battlefield. He declared that he would continue to help clients settle their affairs, but wouldn’t go to court. If settlement efforts failed, he would withdraw from the case and let someone with a more litigious temperament go to court. He persuaded several local colleagues to join his experiment. They soon discovered that the whole tenor of their negotiations changed. No longer were they spending half their time “making nice” to the other side and the other half plotting how best to demolish them at trial. Instead, they could focus all their time and energy on devising creative solutions that would satisfy both sides. They could do what most of us dreamed of doing when we first entered this profession as idealistic law students—solve problems and help people. Mr. Webb called his system “collaborative family law,” reflecting the extraordinary phenomenon of lawyers and estranged spouses working together, or collaborating. Over the past 13 years, it has spread throughout much of the U.S. and Canada. I took my collaborative training here in Belleville in late February, along with 28 other lawyers from across Ontario. It was exhilarating (not a word I usually use for a law course). We started by canvassing the class to see how long people had been practicing family law. There were plenty of twenty-year veterans, but the prize went to the lawyer who said he’d been doing it for 300 years. Our instructors, experienced collaborative practitioners themselves, inspired us with tales of how collaborative law had transformed their lives. These former “kick-ass litigators” could now sleep at night. They could schedule vacations without worrying about unexpected court appearances. They were enjoying better relations with their fellow lawyers. Their clients were happy and grateful when the case was over, and—miracle of miracles—so was the other spouse. It was so civil, so dignified, so peaceful--the way life should be. I think all 29 of us left the course sold on the concept. But a two-day course can’t instantly erase 20 years of bellicose habits. Upon returning to the pile of “old-style” matrimonial files on my desk, I made myself think about what I would have had to do differently on them, if they had been collaborative files. It wasn’t going to be as easy as I expected. The territory was entirely unfamiliar. Law school didn’t prepare us for this at all. There are whole sets of skills that other professionals have developed over the years, that many of us lawyers know nothing about. There’s “interest-based negotiating” and “principled negotiating”. There’s “active listening”. There’s something called “reframing”. At the moment I’m reading a book called “Getting to Yes: Negotiating Agreement Without Giving In”. It’s full of ideas I’ve never thought about before. I think I’ll read it twice. It’s incredibly exciting. Imagine having the opportunity to do something you’ve done for 300 years in an entirely new and better way. This must have been how doctors felt when it became possible to give patients antibiotics for gangrene instead of doing amputations. Several other Quinte area lawyers are as enthusiastic about collaborative family law as I am. We’ve started a website for potential clients who want to learn more, at www.quintecollaborativelaw.org Karen Selick is a partner in the law firm Reynolds O’Brien LLP. * The Intelligencer is published in Belleville, Ontario, Canada Its website is here. |