Your Lawyer’s Role In The Collaborative Process

Yesterday we settled our case. It began in March and completed in July. It required five team meetings over the course of the four months.

Upon acceptance of the proposed SA, my client, the scorned and betrayed wife who discovered the Ashley Madison link on her spouse’s computer as well as the unfamiliar hotel charges on the credit card statement incurred on the same date as her wedding anniversary, sent me the following email: “l have reviewed the agreement and am glad it is over. Let me know what I need to do next. Thank you for being an advocate for me through this difficult time.” I laughed out loud. Talk about perspectives and the meaning of our words…

I explain to every client, during our initial interview, that according to our lawyers’ Code of Professional Conduct, there are four representational functions for attorneys: advisor, evaluator, negotiator and advocate. These are very specific and are intended for a specific audience: lawyers. If my client is to be acting with informed consent when she chooses the CP, of necessity, I am duty-bound to ensure that she understands that I am limiting my representation to only three of the four representational roles. My code of professional ethics requires me to explain, in a meaningful way, that I will not be acting as her “advocate”, which is defined by the Code of Professional Conduct as a role to be assumed in an “adversarial” process; as opposed a “collaborative” Collaborative Process.

So, whose perspective matters, and when? Whose Collaborative Process is it? What makes a Collaborative Process “collaborative”? Long ago, I was taught by Chip Rose, “We [the professionals] are the guardians of the Process”. And we were warned about clients who would “hijack the Process.” We have seen the fallout when clients dictate the process, and equally bad results when lawyers feel responsible for the outcomes, arguing (babbling) to a non-existent trier of fact.

I wrote back to my client, “It has been an honor for me to work with you. All along, believe it or not, I think you have been your strongest advocate; I have only been a cheerleader…the advisor, evaluator and negotiator. I believe, against some odds, that we were able to hold the Collaborative Process together, which allowed you to feel empowered; you were able to be true to your values in a difficult situation and stand up for what you deserved, and to say what needed to be said!’

I believe that the successful completion of this matter, in terms of reaching agreement and also in terms of client satisfaction is due, in large measure, to counsel’s understanding of just what the CP requires for there to be time and space for clients to decide just what they need to be able to move on, in the healthiest of ways. If I had been an advocate, as that term is defined for lawyers, experience has taught me that the outcome would have been quite different; for clients and professionals.

So, the message for my professional colleagues, when we are talking to other lawyers about CP, be mindful of the ethical mandates in your Code of Professional Responsibility; in the CP you are not engaging in an adversarial process and you are not acting as an advocate for anything but The Process. When we are ta [king to clients, be the cheerleader, help them to be their best selves; you can do it all as advisor, evaluator and negotiator. Be the change you wish to see in the world. Let them decide their outcomes and you may just be viewed, in their eyes, as the strongest advocate you could have ever hoped to be; you may just get a 5-star review!