What do we think about as practitioners when we consider adding or maintaining a collaborative component to our overall law practice? Certainly there are the basic considerations of marketing and cost-effectiveness that make any practice component financially justifiable and for many, the analysis may end there. Beyond that, however, there is the lure of creating alternatives that support and empower a client through a difficult time. I’m writing here of a collaborative practice that permits the practitioner to reach deep into one’s self to access curiosity, generosity and empathy in order to create solutions that satisfy not only the deeper needs of the client, but as well, allows the practitioner to experience a spiritual satisfaction that goes far beyond bottom line considerations.
Divorce for many clients can be a defining moment: it can be a time of taking stock, of reflecting upon one’s choices, of admitting to mistakes, of acknowledging historical patterns, of exploring new, previously unthought-of directions, of experiencing sometimes frightening emotional highs and lows. At its very best, the divorce process can present an opportunity for the client to have a deeply spiritual experience. I’m not talking here about a traditional religious experience but of one that expands the individual’s awareness of their own human spirit. To be part of that growth and to nurture its nascent roots within a collaborative paradigm is the privilege of the practitioner. By accessing one’s own generosity and compassion as support for the client, the practitioner as well has an opportunity for personal spiritual growth through the guidance of the client’s journey.
Clients come to the practitioner vulnerable and in distress. To say that they are not at their best is an understatement. They are being divorced from, or they are realizing that they will have less time with their children, or that the financial stability to which they’ve grown accustomed will be altered. Despite their stated willingness to enter into the collaborative process, there is a piece in them that is angry, resentful, afraid, tentative, defensive and reactive. They listen with acceptance to the theory of interests-based negotiation but at heart, they have a firmly seated personal position of fairness and justice. At the beginning, theirs is a surface acceptance of the collaborative paradigm and not a deeper understanding of the spiritual shifts that can be brought on by a collaborative negotiation. It is incumbent upon the practitioner to recognize this, and to understand that clients are often at the moment of signing the collaborative agreement unready to explore the potential of their evolving stories. They are not ready to give up the old trajectory of their lives and live in a new direction, and this presents a unique challenge to the collaborative practitioner that is not presented to the mediator or the litigator. It is at this point that the collaborative practitioner is invited into the client’s life and to be a part of the evolving story. This then is the challenge for the practitioner: to teach, to coach, to truly collaborate with the client and with the team, to create a result that responds to the deep needs of all the participants.
This is not about boundaries. A spiritual collaborative practice doesn’t require that we literally live our client’s journey. Rather, it is about the practitioner’s ability to open one’s heart, still the space, quiet the mind and listen, to ask questions and seek deeper responses as interests – true interests – are developed. St. Thomas Aquinas said, “Fear is such a powerful emotion for humans that when we allow it to take us over, it drives compassion right out of our hearts.” The client’s world of divorce is based in fear – fear of loss, fear of the unknown, fear of sorrow. Therefore, clients will always push toward a resolution but the practitioner may guide the negotiation away from neat and tidy resolutions and toward a deeper understanding of the client’s journey. As litigators, we are all about nurturing the fear and developing our postures. The collaborative practitioner’s role here is to hold tight to compassion, and to guide the client past the fear and into a place of options.
Recently, I’ve begun to consider the impact of a collaborative practice as well as the impact of compromise of collaborative principles upon the emotional life of the practitioner. Is it possible that a collaborative practice can impact us at a spiritual level, at its height enriching and empowering us as practitioners as well as individuals while when compromised leaving us longing and dissatisfied? I have come to believe that if we invest ourselves fully into the collaborative paradigm, we as practitioners can emerge with a deeper, more thoughtful understanding of human nature and thus, of ourselves.
By fully embracing the collaborative paradigm as practitioners, we have the opportunity to truly reach inside of ourselves and give to our clients the very best of our skills and the very best of our selves. Rather than provide them “with the answer” we instead strive to create an environment that allows the clients to determine the answer for themselves. Spiritually, this isn’t a new concept. Consider Matthew 4:19 – “Give a person a fish, and you feed that person for a day. Teach people to fish, and you feed the people for a lifetime.” The creation of a truly collaborative environment, one based upon identification with interests and not with positions, has the potential to enrich all who participate, professional as well as client, as we build upon an interrelated experience of interests-based negotiation.
The generosity of the collaborative practitioner, then, is to create and maintain such an environment. The client seeks a path to a goal, and this leads to position-based negotiations. Instead, the collaborative environment as guided by the practitioner says with every step we have arrived because with every step, we are addressing your interests. Maintaining a focus on interests and on being present enhances the collaborative experience for all participants – including the practitioner. It allows the collaborative team to experience a richness in the negotiation that is missing from a position-based negotiation which demands compromise in order to move forward. It is fulfilling and satisfying to all. In working through the collaborative paradigm for a client’s divorce, the practitioner can recognize and confront deep personal fears, making us more aware as individuals of our own motivations. Our role, then, is to keep the collaborative paradigm open, present and functioning. That role can easily become part of our spiritual practice for daily lives as we focus on being present and being open in our day to day activities.
As we strive toward a spiritually-based practice, our failures – those seemingly inevitable cases which seek to rush to judgment to just get it done – can sap our energy and cause us to question not only our skills but collaborative practice as a whole. As practitioners, we experience frustration and loss when a collaborative matter moves inexorably from interests-based to position-based negotiation and we are unable to redirect the negotiation back into the collaborative paradigm. However as we as individuals continue grow in our collaborative experience, I believe that practitioners will become more trusting of themselves, of their intuition and of their power within the team and that maintaining focus within the paradigm will become second nature. As we experience success within the collaborative paradigm, we become more confident. The personalities and challenges of the individual client, whether our own or from the “other side”, present no conflict for us to address because we begin to hear them through a filter of compassion and generosity.
For me, the success of any collaborative negotiation builds my confidence that I am moving in the right direction for my own growth as a practitioner and as a human. Negotiations that fail to stay within the paradigm are lessons to be learned from. But the deeper questions of the negotiation stay with me always: am I being open, am I present? What is the filter through which I am hearing this individual? Am I judging the action, or am I hearing the experience? Am I judging the individual, or am I holding a space for this individual to grow? Am I contributing to the balance of equality among all the participants? Is it necessary that I speak here? These are lessons that go with me daily through my life, and form a springboard for my personal spiritual practice.