Last week, I had 5 mediations in 4 days. In 4 of them, I was the mediator. 2 of them were court ordered, meaning the case was in litigation and the court appointed me as the mediator; and 2 were private. In 3 of them attorneys were involved and attended mediation. As the mediator, part of my job is take the temperature in the room, observe the interactions between the parties and their attorneys, and hear what's not said as well as what is said. The question that ran through my mind in all of these mediations, court ordered and not, with attorneys and not, was whether any of them could have been collaborative cases. The answer, unsurprisingly, was about what I find in my regular cases: one could not be collaborative; one didn't need to be collaborative; and three could have been collaborative. So, what made the difference?
In the one that could not be collaborative, it was because of the lawyer for one of the parties, and not in the way you might think. It wasn't that he was overly aggressive, and it wasn't that he didn't know the law. It was that he didn't care what happened to his client. No choice of process could or would change that. If there is one thing I can say for certain, it is that an attorney who doesn't care about their client cannot practice collaboratively. That's nothing that can be faked.
The one that didn't need to be collaborative was between two people who didn't have attorneys, didn't need attorneys and just needed a little help making sure they addressed all their issues. They also had to have a bit of help reaching agreement on the few issues they had. They needed no support at the table and really no advice. They were pretty close on what they wanted to do and how they wanted to do it. Collaborative process wasn't necessary.
What about the other three? Why is it I thought they could be collaborative? In all three, both parties were committed to resolving their issues outside of court, to make their own decisions regarding their family. In all three, the parties, at their cores, had a desire to make sure they reached a resolution that was acceptable to them both. All of them wanted the other party to be OK moving forward. The two who had children loved their children and recognized the importance of resolving custody in a way that let both parents feel heard and involved. Well then, why weren't they collaborative? First, in all but one of them, neither attorney was trained. What the training does is help the attorneys let go of the model of positional bargaining and not be afraid to commit to helping their clients explore their wants and needs for themselves, as well as for the other party and their family. It's harder than it seems, and requires real knowledge and commitment, as well as caring, for attorneys to do this. I am certain that if the attorneys were trained collaboratively, these cases could have resolved.
What about the third case, in which both attorneys were trained collaboratively? Could it have been handled that way? Yes and no. It could have been done collaboratively, but it would have taken a lot more time, cost a lot more in attorney's fees, and the result would not have been much different that what resulted. Plus, the husband would never have been able or comfortable discussing his needs and wants, no matter how many sessions with a coach he had (if he would ever have agreed to a coach in the first place). Some people just can't look that deeply inside themselves, and asking them to do so would be counterproductive. Would the clients have found the agreement any more durable or acceptable? No. Again, just because you can do something doesn't mean you should. Figuring out the process that works best for the clients is a large part of what we do - Here in the Trenches.
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