Sometimes when a group of collaborative professionals are working together on a project, like putting together a Speaker’s Bureau program for a group, or working on a marketing project, we will describe the roles of the various professionals. When it comes to the role of the attorney, what may first get suggested is something like this: “After the parties have reached agreement resolving their issues, the attorneys draft the legal documents that are submitted to the court.”
Technically, that is true. But it is a huge disservice to the role that a good collaborative attorney plays. Most of the attorneys that I work with have been practicing attorneys for many years. Most have begun their legal practice in the traditional adversarial process. In that arena they often had the sole responsibility for preparing their client, and the client’s case, for trial before a judge. In that role, the attorney was the sole buffer between the entire adversarial system and the client.
Starting with the initial conference, the attorney was tasked with gathering all pertinent information, interviewing his/her client to understand their interests and concerns, and beginning the process of organizing the case into its many elements. Next the attorney might reach out to the other party’s attorney to discuss the case, or, more often, they would begin to prepare the necessary documents to place the matter before the court at a temporary hearing.
Central to this process was an ongoing evaluation and assessment of legal issues that needed to be addressed. Another aspect of preparation for trial was a process known as ‘Discovery’, or how to obtain full disclosure of the ‘factual’ elements of the case.
Of course, the other spouse’s attorney was beginning to engage the exact same process, and each side would seek to obtain whatever advantage they might be able to control to give their client an advantage.
Throughout the process the attorney was applying relevant statutory and case law to the circumstances of his/her client.
In the collaborative process, the role of the attorney has shifted dramatically. Recognizing that every study ever conducted said that most cases settled at some point prior to a full trial, collaborative practice introduced the common sense approach to support parties in jointly gathering all of the relevant information pertinent to their case. Minnesota law requires and demands that the parties provide full and fair disclosure of all information to each other.
Therefore, collaborative attorneys are highly trained in the law and knowledgeable of the both the law and the procedures that must be followed. However, in the collaborative paradigm, we have found it most expedient to align all of the various professionals as equally important to the process.
In most cases, the attorney is invaluable in helping his/her client recognize their rights and privileges as well as their duties and obligations under Minnesota law. Most attorneys become good listeners and are able to help both parties understand what is required of them.
The role of the attorney in the traditional process is that of advocate, which literally means to speak on behalf of their client. In the collaborative process each attorney undertakes a new role and duty, more like an ally, that of listens to both their client and their client’s spouse, in order to understand what is important. In the collaborative model it is up to the parties to reach their agreement, while it is the role of the attorney and the other professionals to help provide all of the relevant information that each or them need to make an informed agreement.
In my next article I will look closer at some of the complex nuances that attorneys can help sort out, that can help both parties obtain more focused resolution of all issues. It is not uncommon to reach final agreement that accomplishes things the court could NOT accomplish, because they are bound by the letter of the law.
Be sure to look for part two of this blog topic!Tagged with: Collaborative Divorce • collaborative divorce process • Collaborative Family Law • Collaborative Law • collaborative process • Collaborative Team Practice • collaborative team process • divorce • divorce choices • divorce options • Divorce Process • healthy divorce • productive conflict resolution