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The Next Evolution of Collaborative Law

November 30, 2016

At inception, Collaborative Practice was two lawyers sitting round table with their two clients. The agreement was they would help the intimate partners dissolve their relationship and settle things peacefully between themselves without the use or threat of court.

As Collaborative Practice evolved, the lawyers realized their desire to help people resolve matters peacefully could be supported by bringing in other professionals, most notably family and financial professionals.

Discussion ensued as to the timing of bringing in the allied professionals. Some opted to being them in on an as need basis and others opted to develop models including the allied professionals from the get-go. This developed an “all or none” thinking with regard to beginning the Collaborative process. What wasn’t noticed was this remained a lawyer-centric process. In other words, the lawyer was always central to how the process started and were determinative of where things would go. The lawyers set the direction of the process and who was involved.

This lawyer-centric model has created some consternation among allied professionals. Both family and financial professionals felt beholding to the lawyers, hoping to be a preferred service provider to their collaborative team. The business of the allied professionals was dependent on the referrals from the lawyers. This created hierarchy and power imbalances among the service providers. The hierarchy and power imbalances are built in structurally given the lawyers would determine which professionals sat at the table. The thinking of the allied professionals inadvertently reinforced the lawyer-centric approach, by waiting for the invitation and perhaps feeling a need to ingratiate themselves for referrals.

However, I have always had the view that Collaborative Law is better represented by how we think over what the process may be.

From this perspective Collaborative Practice is all about helping people resolve family disputes, most notably the dissolution of intimate relationships, as peacefully as possible and as far away from court as possible. It is about bringing the needed expertise of people with a like-minded vision who hold what is best for the family as the better outcome over what is best for the individual.

Looking at Collaborative Practice as a mindset versus a static process offers more creativity for problem solving. From this perspective, any of professionals can serve as an entry point for a Collaborative process.

I regularly receive referrals for marriages on the cusp. As much as possible I seek to help people maintain their relationship. If however they choose to dissolve their relationship, I remain available to help sort out the changes that naturally occur whether those changes are emotional, psychological or relate to the care of children. From this role I am also available to refer these same people to divorce financial professionals who in turn can facilitate the resolution of the financial aspects of separation. After that, then we can refer these same folks to collaborative law professionals who can turn parenting and financial agreements in to binding contracts.

People do not have to see the lawyer first. Indeed, people may see the lawyer last having already determined the terms of their agreements with those professionals whose expertise best matches their needs. Rather than a lawyer-centric model of collaborative practice, this is a client-centric model, truly placing the client first according to their need often as determined by their entry point for service.

Having spoken with financial professional colleagues, I have learned that my approach and facilitating the process as I do is not unique, although as yet uncommon.

To those allied professionals who have been waiting on the invitation of the lawyer to provide service, I suggest a revolution or paradigm shift in your thinking. You are the entry point for people who may be seeking to separate. You can facilitate their separation as well as the lawyer for matters within your span of practice and you can inform people of process options without providing legal advice. What is key is the collaborative mindset: helping people dissolve their intimate relationship peacefully using those professionals as may be necessary and who share the collaborative mindset in doing so.

This is the next evolution to Collaborative Practice and this informs the training I provide in terms of helping professionals market their peacemaking practice. I help people differentiate their practice; learn how to market their differentiated services; and appreciate the mindset that any Collaboratively trained professional can serve as an entry point to service and can serve as the client navigator. This also expands the marketing force for Collaborative Practice as all professionals have a stake in the outcome.

To the collaborative lawyer, to evolve from the lawyer-centric model, take a look at your labels. We have spoken of the Collaborative lawyer, the mental health professional and the financial professional.

On a go forward basis consider there are at least three professionals central to facilitating the dissolution of an intimate relationship: the legal professional, the family professional and the financial professional. This subtle shift in language changes the thinking from a lawyer-centric model where the lawyer is elevated in the process to a flat and equal model of professional expertise where if anyone is elevated, it is the clients.

The objective is to facilitate meeting the needs of the client with the right professional at the right time. The goal is the successful dissolution of the intimate partnership leaving the individuals and necessary ongoing relationships as intact and functional as possible.

Now you have the Collaborative mindset at least as I see it.

 

I am Gary Direnfeld and I am a social worker. Check out all my services and then call me if you need help with a personal issue, mental health concern, child behavior or relationship issue. I am available in person and by Skype.

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Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships

3 Comments
  1. Hi Gary. Thanks so much for your posting. My name is Susan Horowitz, and I practice similarly to how you practice, in NJ. I am an LCSW with a private psychotherapy practice, specializing in couples, families, and systems oriented relationship work. I am a trained mediator, and got into collaborative practice about eight years ago. Presently, about 40 percent of my practice is collaborative.

    I agree with everything you said. Although I sometimes receive “referrals,” mostly from non-collaborative cases, to mediate the development of a Parenting Plan, or to function as a Parent Coordinator to help implement the Parenting Plan or mediate co-parenting issues, my preferred model is to work with attorneys and financial professionals to form a team at the inception of the case. I would say that I bring into our teams almost as many cases as I get from the team.

    The mental health professional plays a crucial role at the beginning of the case. I am often the first person to engage with the couple, and my initial consult is often a “process consult” before the clients have retained their attorneys. Working with the couple, even in a single consult (often longer, prior to their readiness for attorneys) I am in a good position to assess their potential for success in the collaborative process. I work with the couple throughout the process, and often continue to work with them after settlement on co-parenting issues.

    I have been lucky to have found attorneys and financial professionals who have truly made the paradigm shift and understand the importance of “collaborative practitioners” in addition to “collaborative process.” It’s very satisfying work.

    • Hi Sue. Thanks for your comment.

      I also receive many referrals from non-collaborative lawyers. I run the file like a collaborative case and find it helps bring about better resolutions.

      At times, the non-collaborative lawyers are locked in over the financial aspects of the situation. I offer to facilitate a meeting. Some take my up on the offer and some don’t. Of those that do, it usually results in a resolution.

      I like the notion of the Collaborative mindset. When we run with it, good things can happen.

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