Moving towards a better way

Observations on transforming a litigation-based family law practice to one focused on alternative dispute resolution.

As an advocate and litigator, although I have always enjoyed spirited legal argument, I have been fundamentally troubled by negative aspects of civil and family law litigation that sometimes can occur: a dispiriting lack of civility, gamesmanship, withholding of relevant information, 11th hour courtroom surprises, outright misrepresentations, lack of regard for the interests of the other parties--even children, zero-sum game results, uncertain judicial solutions, and the dissipation of the parties’ family assets on litigation costs rather than putting resources to more productive use. In short, the adversarial system does not always seem to serve families as well as it should.

For these reasons, whenever possible I would attempt to steer clients toward reasonable, rational, forthright behavior and equitable settlement. While this strategy generally would succeed in achieving a good and fair result, both sides would often feel as if they lost something through compromise.  Despite sincere efforts by settlement-minded counsel and parties, both sides might conclude settlement feeling as if they spent a lot of money yet did not get everything they needed, and walk away with strained or non-existent relationships with each other. Over time, I realized that traditional settlement, while significantly better than litigation, still is far from optimal in its failure to generate outcomes that facilitate long-term satisfaction and continuing relationships within families.

Thus began my journey toward alternative dispute resolution (“ADR”). I joined the Massachusetts Council on Family Mediation (“MCFM” https://mcfm.org/), the Divorce Center (http://thedivorcecenter.org/), and explored other ways of solving family law and marital disputes, including mediation and collaborative law.  I discovered that in contrast to litigation, these forms of ADR do not dehumanize parties, deplete their resources or publicize their private family lives. Instead, mediation and collaborative law can help parties resolve their family law issues privately, enable them to forge ongoing working relationships with each other for the best interests of their children and their own mental health, and accomplish all of this with vastly more efficiency and economy than litigation.

After years of litigation-based practice, I opened my own family law practice with the intent of transitioning to ADR. Through training,[1] it became immediately obvious that Mediation and collaborative law do not result in harmonious epiphany right off the bat, if at all. Parties often need to engage in active conflict before they can reach resolution. Hostilities and resentments cannot be buried or repressed, but should be freely (albeit appropriately) expressed and dealt with directly, honestly, respectfully, and in a way that reveals the underlying needs and goals that are usually hidden in these negative feelings.  Such needs and goals, called “interests” in the mediation and collaborative law context, must be identified for parties to begin to come up with options and move forward in a positive way towards resolution.

To encourage and facilitate openness, the ADR professional must show empathy to both sides, while remaining a neutral mediator or a collaborative advocate for their client. I found that the old cliché, nothing creates empathy better than walking in someone’s shoes, is indeed accurate. Playing the role of a party in mediation training can be incredibly illuminating. Despite the artificiality of role playing, it feels truly frustrating and disempowering to feel wronged, unheard and misunderstood. When a party is being “difficult,” very likely they are feeling powerless, ignored, or a great sense of unfairness or injury.  A mediator or collaborative attorney’s ability to really listen to a party’s concerns, without judgment or being put off, helps alleviate the party’s negative feelings and behaviors and helps them to identify their interests.

But that doesn’t mean that collaborative attorneys or mediators can sit by passively while the parties hash it out.  On the contrary, effective mediators and collaborative attorneys must work hard to foster communication by being active listeners. They need to ask questions that will encourage parties to talk, and talk, and talk some more until they are able to move beyond staking out positions as they would in traditional negotiation. Mediators and collaborative attorneys must learn to question parties in a way that allows them to open up and describe what they actually need and want, to help identify their interests with reframing, and to then enable parties to generate options that may lead to mutually beneficial solutions and ultimately resolution.

For an attorney accustomed to taking depositions or cross examining witnesses in court hearings, this change in approach can prove to be a significant hurdle. Sometimes posing the right questions can be as plain as asking “why?” or just saying “go on.” This deceptively simple method, however, necessitates a total paradigm shift—moving away from narrow, targeted questioning and instead using open-ended questions designed to elicit the widest range of information. Only in this way can attorneys effectively assist parties to define their own options.

However, the biggest challenge for a litigator becoming an effective mediator or collaborative lawyer may be learning to just let go and trust the process.  While it is essential for family law practitioners to abandon an adversarial approach for an inclusive, problem solving one, it is not enough. Attorneys must also learn not to attempt to control the outcome, not to direct the parties away from expressing difficult feelings, or toward particular solutions. Instead, attorneys must learn to get out of the way and let parties arrive at conclusions independently, so that they may find options and solutions of their own device. Sometimes this means being able to sit in silence and just wait for the parties to speak, an unusual state for a litigator to say the least.

Why should attorneys resist the urge to share helpful ideas, options, or solutions with parties engaged in mediation or collaborative law? Because in the long run, the parties will be more satisfied with the result if they don’t feel that they have been lead to or even pushed into settlement and instead can claim ownership of resolution that they, themselves have created.

[1] 40 hours of mediation training with MWI http://www.mwi.org/, and Collaborative Law training with the Massachusetts Collaborative Law Council “MCLC” https://massclc.org/.