I like to ask divorce attorneys why they have not taken a basic collaborative law training course. One answer I have received is that “I don’t have the patience for the process.” I believe what the attorney meant was that he prefers studying the weapons of the family law battle (case law, statutes, rules, trial strategy), fighting the battle using those weapons and the facts in the case, and handing the outcome to a judge. Not much patience required with that attitude except waiting for court dates and a decision. You also need thick skin to live with the decision and move on to the next case leaving the probable family harm of what you say in court filings and the verbal courtroom brawls behind you. Good collaborative lawyers know patience is key. We have to actively listen in face-to-face meetings to what each participant is saying and quickly either respond with something constructive toward settlement (not destructive e.g. “see you in court”) or keep quiet. It requires playing devil’s advocate with your client almost from the start of your representation. I know playing devil’s advocate with your client happens in litigation but it is usually on the eve of trial when the pressure to settle is highest. In a collaborative case, the pressure to settle is there from day one. After all, the scope of our representation is limited to settlement. When your client’s spouse throws verbal darts at your client, you have to hold your tongue to avoid jeopardizing settlement until you can come up with a way to deflect those darts and smooth things over. It requires not immediately responding when your collaborative co-counsel says something you think is litigious and then later try to resolve it with co-counsel in a team meeting. It requires finding a polite way to tell a coach or financial neutral in a team meeting that you or your client found one of their comments lacked neutrality or, even harder, showed bias. Most family law lawyers were trained for the court battle from day one of law school. It goes against that training to have to exercise the patience required to resolve a collaborative case. No wonder so many collaboratively-trained lawyers fall off the collaborative bandwagon. It is easy and more comfortable to go back to the old way of doing things. A few (less than 10% I estimate) collaborative cases terminate and go to litigation. Most of those lost cases likely terminated because someone behaved non-collaboratively and someone lost patience in dealing with it. I have had only two collaborative cases fail to reach a resolution on the economic issues and neither of those were due to a lack of patience. My own parents divorced in the early sixties when few people divorced and I have litigated a few hundred divorce cases. Maybe that is why I never lose patience (at least to this point!). David A. Miller Esquire
