A Dozen Tips for Lawyer Success in Collaborative Practice
By Jeffrey Fink and Robert Kubacki
Like law school civil procedure classes, introductory Collaborative Practice training sessions teach processes
and procedures to follow. Most trainings cover protocols, informed consent, disqualification rules and other
important aspects of managing a case using a Collaborative Process. As good as any training may be, though, it is
difficult to impart what it actually is like to work as a professional on one of these cases. Here are a dozen tips for
making a satisfactory outcome more likely:
1. Agree What it Means to Be Collaborative. The professional members of the team should agree early on
what it means to be Collaborative. Chances are, different members have different understandings. An
early discussion about Collaborative Practice will bring to light any differing perspective. Also, a
discussion helps build the personal relationships that hold the structure of the Collaborative process
together. It is a first step in building momentum for the professional members of the team to work
together Collaboratively.
2. Plan to Devote Time in Different Ways Than Other Cases. Experienced attorneys know how to manage
their time on different types of projects. Like any new process, it takes time to learn how to manage a
Collaborative case. The workflow is different than the usual lawyer-assisted negotiation. Many
Collaborative lawyers say that the most surprising difference is that they need to spend what seems like
an inordinate amount of time preparing themselves and their clients between meetings, as well as time in
pre-brief and de-brief meetings with the professional team.
3. Expect It To Be Hard. Regardless of how much experience an attorney has at cooperative negotiation, the
Collaborative process is demanding. By the time a dispute is hot enough to reach the lawyers, it takes
work to shift clients into a Collaborative mindset. In multi-party meetings, attorneys should engage both
their legal intellect and their emotional intellect fully in order to stay on top of what is happening. Each
should do his or her best to encourage the rest of the professional team to do the same and to help the
clients make the Collaborative shift. Professional team members must model what they expect of their
clients.
4. Unlearn Your Negotiation Instincts. Most lawyers know how to navigate legal issues and how to be
persuasive. Some lawyers know how to let their clients speak. Few lawyers know how not to take charge
of a room during a negotiation. Practice silence. Let the clients do the heavy lifting during multi-party
meetings.
5. Even If You Think You Are Cooperative, It Is Easy To Become Positional. The lawyer’s job is to take on
and fight for our clients’ causes, however strong or weak they may be. Since most legal work involves
positional negotiation, our instinct is to set the client up in the best position to haggle. The attorney has
different and multiple roles in a Collaborative dispute resolution process. Remember that it is the parties’
negotiation; attorneys are there to counsel the clients, help develop solutions and to model Collaboration.
6. Be Prepared to Give and Receive Difficult Feedback. Most people are not fully aware when they shift
between Collaboration and traditional advocacy. Most people are not fully aware when they say or do
something that has a more positional delivery or content than it needs to be. Most people are not fully
aware when their nonverbal body language says more than the words that are or are not used. The lack of
awareness of these tendencies in one’s self or others can damage the clients’ and other professionals’ trust
in the process. To be a Collaborative lawyer takes real-time openness, consciousness and resilience when
receiving focused and candid feedback as well as the ability to give both positive and negative feedback
diplomatically. It can be uncomfortable. Call a time-out during meetings if appropriate. A successful debrief after each meeting is critical.
7. Be Certain There is a Shared Understanding of the Roles of Neutrals. Many Collaborative cases use
neutrals, whether as communications coaches, facilitators, expert substantive advisors or even case
evaluators. Attorneys and neutrals will best serve the parties and the Collaborative process if each has a
clear understanding of what is expected from the other at the very outset of the process. Neutrals are
human and may act in good faith in a way that nonetheless appears to compromise neutrality. For instance,
the advice of a financial neutral may necessarily disfavor the perceived interests of one party – be sure
everyone expects candid statements. Similarly, a facilitator may have professional knowledge about a
substantive issue – be sure there is explicit understanding of whether it would help or hurt the process to
use this knowledge. Attorneys should politely provide feedback as soon as possible if they perceive a
neutral using a turn of phrase that appears to fit only one party’s narrative, a reference to legal theories
that slants the discussion, or body language or other subtle displays of personal feelings from which one
might infer bias.
8. Be Prepared That The Most Difficult Conversations May Be With Your Own Client. Law, facts and
rights play a big role in how clients think of their disputes. No case has a 0% chance (or a 100% chance)
of success or failure. Every dispute has transaction costs. Each attorney needs to be able to have these
discussions honestly with the other party’s lawyer to identify points of agreement and legitimate
disagreement. Even more importantly, rather than having the other party’s lawyer or a facilitator broach
sensitive or difficult topics, Collaborative lawyers need to be able to do honest BATNA/WATNA testing
with their own clients. If a client hears difficult news from someone other than a trusted source, it raises
the specter of reactive devaluation and may undermine the client’s trust in the professional team and the
process. Finally, each attorney also needs to be a wolf at the door: each may have to help clients
overcome their reluctance to resolve matters without an external motivation like a court date.
9. Be Clear About Goals. All participants in a Collaborative Law process should be clear early on about
their goals. Is it important that there be a radical shift of the clients’ views of each other and their dispute,
or is the primary goal is to resolve a legal dispute with any relational or other transformation being an
ancillary benefit? The distinction is critical. Attorneys have a professional responsibility obligation under
the limited scope representation rules to determine if one client has a unilateral transformation as a
primary goal (“I’m doing this mostly to convince the other side that I’m right and he’s wrong”), and if so
to have a thoughtful discussion with the client about the range of dispute resolution options to be certain
Collaborative Law is the best suited for the particular dispute. In most cases in which Collaborative Law
is appropriate, the goal is to enable the clients, with professional assistance, to negotiate a resolution of
their legal dispute from their interests rather than from positions and, in some cases, to preserve a working
relationship.
10. Support The Process and Be a Role Model; Don’t Neglect Process Elements. For it all to work, each
client must trust the professional team and the process enough to move away from purely positional
bargaining. If the team focuses on supporting and modeling trust in the Collaborative process, it is easier
for the rest to fall into place. The attorneys’ roles in a Collaborative negotiation include, among other
things, process elements like doing minutes, assigning homework, scheduling future meetings,
participating in pre-briefs and de-briefs with the professional team and checking in with the client to make
sure any developing trust does not evaporate between meetings. Agree on how to divide these process
elements with the other attorneys. Be sure that any decision to modify or eliminate these process elements
is made consciously in the service of supporting the process and maintaining trust, rather than for the sake
of expediency or to alleviate the parties’ impatience.
11. Actively Work With Your Client’s Decision Making Process. Attorneys representing organizational
clients need to be sure that all levels of the organization are on board as early in the process as possible.
Individuals make decisions within networks of friends, family and professionals, too, and Collaborative
lawyers need to be even more aware of those influences than a typical lawyer. David Hoffman has said:
“He who is furthest from the conference room table bargains hardest.” There are few things more
irritating for a client than making progress with his counterpart, only to have discussions fall apart after
being second-guessed by his own (or his counterpart’s) parent, spouse or someone higher up in an
organization who has the “final” say on whether to accept or reject an agreement.
12. Understand that The Process Is Forgiving But Still May Fail. Collaborative practice neither demands nor
requires perfection. If the professional team works well together, any individual member’s faux pas can
be mitigated by the mutual support of the team. Even with such mutual support, the process may fail. It
may be that the clients’ interests do not converge on out-of-court resolution or that outside influences are
even stronger than clients’ trust in the process. It may also be that the clients’ personalities or
temperaments are not well suited for the Collaborative process. It is not necessarily your fault if the
clients do not reach resolution. To be a better Collaborative attorney for the next case, though, do a full
de-brief with the professional team afterwards regardless of the outcome. Building on the wisdom of
hindsight will serve you and your future clients well. It will also help build a community of seasoned
Collaborative professionals in a way that no training can.
Jeffrey Fink (www.jfinklawadr.com) is a lawyer in Wellesley, Massachusetts whose practice focuses on business
law and resolution of business and family disputes. He is currently a member of the Board of Directors of the
Massachusetts Collaborative Law Council and serves as Co-Chair of its Collaborative Business Law Committee
(the “CBL Committee”).
Robert W. Kubacki is a facilitator and conflict management coach with a focus on intercultural communications
and root cause analysis. He has worked in the non-profit, public, and for-profit financial and high-tech sectors as
legal counsel, administrative hearings officer, public administrator, employee relations, and manager of human
resources innovation and effectiveness. Robert is an adjunct instructor at Northeastern University’s College of
Professional Studies and Emerson College. He has taught at Carnegie Mellon University, Clark University,
Duquesne University’s School of Leadership and Professional Advancement, and Suffolk University’s Paralegal
Studies Program. He holds a Juris Doctor, Master in Public Administration, and BA, Magna Cum Laude.