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Incompatibility of a Litigious Mindset and a Collaborative Divorce

April 10, 2012

image by anankkml/freedigitalphotos.net

We are working as coaches on our fifth “hybrid” case.  An attorney from our group is working with an attorney from outside our group on a litigated case in which coaches have been hired in an attempt to calm overly angry clients.  Hopefully, this case will be the exception to what have heretofore been moderate to serious failures.

These failures have revealed the risk inherent in working with attorneys who have not participated in cases where a collaborative stipulation has actually been signed.  These attorneys, when faced with the problem of advising their clients to fight or compromise, have never been impeded by the disqualification clause included in all collaborative cases. When they realize that they must present an attitude that may be inconsistent with a “vigorous defense,” they invariably resort to their legal training.  They don’t seem to be able to comfortably advise their clients to act reasonably, if, by recommending this, they fear the client may not get “the best deal possible.”

Our ABD attorneys have chosen to work with non-collaborators because the latter characterize themselves as individuals who frequently use a collaborative “style” in their litigated cases.  The litigator believes that this style is all that is necessary to successfully collaborate.   In spite of the well-intentioned belief by a litigator (even one who by nature is collaborative) that the paradigm shift required by collaboration can be made, none of the professionals we have thus far worked with have been able to pull it off.  Invariably, when the case becomes adversarial, the attorney encourages the client to fight for his/her rights.  The mindset that develops when a client watches his lawyer draw up battle plans becomes a nearly impossible barrier for a coach to overcome and as a result, the coach is prevented from doing the job for which he/she has been retained.

It would be unreasonable to ask either attorney, after writing letters to each other that are positional at best, and adversarial at worst, to present a collaborative mindset to their clients.  And, one could not reasonably expect a client to be open to the “softer” position advocated by his coach, after he has listened to the “better deal” position advocated by his attorney.

What does all this mean?  Well, perhaps that even when the case is unequivocally collaborative, the mindset of the client, immensely influenced by what his attorney tells him (overtly or covertly,) may be the most powerful factor in determining success or failure of the case.  Because of this, we must pay close attention to the actions of the novice collaborator, and watch for signs of deterioration in the collaborative mindset of all the participants.

Robert Rutman PHD is a Mental Health Professional based in Hermosa Beach CA. as well as a member of A Better Divorce.  His primary goal as a divorce coach is to help his client move smoothly through the divorce process from beginning to end.

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