Thursday, April 14, 2011

Some thoughts about the value of attorneys

I am a member of the Collaborative Law Institute of Texas and on an email discussion group of collaborative practitioners discussing issues in collaborative divorce. The moderator posed a question to the group in a recent post, and I was inspired to respond to his question

"How do we explain to the clients what they do? Are they necessary? Is it "really even" CP if there isn't a team?.....'

Those questions never seem to get asked about the attorneys. It seems to be simply a given that the parties in dispute MUST HAVE attorneys. But what do the attorneys do?

Here's my response addressed to Carl Michael Rossi, the moderator:


your post has provoked me to stop lurking and respond.

First, some disclaimers—though degreed in both law and psychology, and collaboratively trained, I have not made a single dollar in legal practice (I work as a consultant to divorce attorneys and make my living when divorces are litigious, NOT collaborative).

Couples who have the ability to resolve difficulties productively do NOT divorce-so we never see them in our professional roles. Those without those critical skills (and some others) do divorce, but cannot do what is necessary to clear even meager legal hurdles TOGETHER well enough to get divorced. They need help to do that. Many clients literally are unable to speak for themselves in a way that will lead to a resolution and need an advocate who can speak for them in the midst of a conflict. (Admittedly, blindly partisan, traditional litigious advocacy can make the dispute less likely to be resolved, but I am talking about a kinder, collaboratively informed advocacy here.)

We all have a vested interest, reflected well/poorly in public policy and the law that puts boundaries around the terms under which we will let people divorce, particularly when kids are involved. No lay person I know has a clue about what those boundaries are, even after they read the Family Code in their jurisdiction. An “agreement” that gives all the property in the estate to one party leaving the other party destitute is clearly NOT inside the boundary, to make an extreme example.

In this arena, lawyers not only have no peer, there is no viable alternative in the vast majority of cases (some small number people are capable of DIY divorces). Nonetheless, it continues to be my considered opinion, as a former law student/grad student and former law professor/psychology professor, that law school curricula do NOT provide the kind of skill building opportunities for that equip lawyers nor psychologists for the legal realities of professional practice, particularly in the collaborative arena. At the same time, MHPs have an incredibly na├»ve and paranoid view of the law, for the most part, and many lawyers have few of the interpersonal and facilitative skills needed for collaborative practice and a disdain for the “fuzzy” expertise of MHPs, for the most part. Self selection in both professions, and the professional training in both professions, as currently practiced, will continue these unfortunate trends.

I have found through about 10 years of teaching future lawyers and MHPs together, in one cross-disciplinary graduate level course in the same classroom, that these prejudices in both professional groups can be overcome through education and personal experience, and that both groups can acquire both skills and a new appreciation for the value of the other. I know that collaborative practice experience has the same beneficial effect.

Collaborative practice is the nexus of this challenge. Both legal and interpersonal skill sets are needed but both must be valued and taught, and professional prejudices must be overcome. It can be done. Both lawyers and MHPs will always have a contribution to make in divorces and collaborative practice is a dramatic improvement in the way that both professions can help.

My two cents…

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