When, as a practicing family lawyer in 1980, I first began experimenting with mediation, I assumed that my role was to provide expert legal advice and guidance in a non-adversarial approach. As there were no regulations governing this type of process, I began working directly with the clients who chose to work in mediation without the presence of counsel. In that context, I assumed it was my responsibility to provide a sense of organization, an understanding of the law, and structure for communication and resolution. By the early 1990s, after having completed a couple hundred cases, my perspective on this work had profoundly evolved. I had become a true believer in the capacity of the clients themselves to create their most meaningful settlements, and that in doing so, the “law” as a template for resolving issues was regularly subordinated to the exchanges of more complex and important personal goals and objectives of the parties.
Correspondingly, my role as legal expert yielded in significance to my role as manager of the process; my “responsibility” to see to it that clients were informed of their legal rights played a less significant role when compared to my responsibility to make sure that each client felt safe and protected by the process. Clients brought a complex set of goals and objectives to the process. Instead of trying to design the outcome, based on my formal law school training and professional legal expertise, I had begun discovering both the necessity for and the value of ceding to clients the responsibility for dealing with the content of their settlement. Without consciously intending to do so, I had begun practicing the art of the question and working within a “client-centered” process.
A process can be defined as client-centered when it is of, about, and for the clients. It begins by identifying the shared goals of the clients; the subsequent design and structure of the process becomes the map that will enable the clients to navigate towards those shared goals. “Client-centered” becomes the litmus test by which the design of the process is measured. It is the lens through which to examine the implementation of a process to test all strategies and interventions to ensure that they support and facilitate the clients’ abilities to achieve their most important goals.
Divorce clients are like two pebbles dropped into the still waters of a pond. Each creates its own unique set of concentric ripples that radiate out from the core. Each of these ripples needs to be individually addressed and responded to. As the two sets of concentric ripples intersect and move through one another, the complex dynamic created by that merging interface must be addressed with skill and care. This also presents an opportunity for effective process management that will allow clients to achieve their most important goals.
It is important to note that “client-centered” means much more than the obvious contrast between third party decision-making processes as litigation or arbitration and client decision-making process as mediation and collaborative practice. Mediation models that have been co-opted by the legal system and function more as “settlement conferences,” and collaborative practice cases in which the professionals dominate and control the process all fall far short of being client-centered. Most of my litigation colleagues defend against the perceived challenge of mediation and collaborative practice by stating that they “almost always settle their cases,” but they fail to go one critical step further and examine the quality of those settlements. They do not inquire whether the settlement is the best outcome of which the clients are capable.
That these two disciplines--mediation and collaborative practice--are siblings of the same family seems to be a fact that neither sibling wishes to acknowledge. It is more than a little ironic that each movement arose out of the need to better serve families in crisis. Up to this point, however, neither area of practice has seemed to want to address the ties that bind them to one another. Although Stu Webb, the acknowledged founder of collaborative practice, received training in mediation, he created the collaborative law model as an answer to what he perceived to be shortcomings of the mediation process.
However, the rapid growth of the collaborative movement mostly has come from individuals who do not have a background in facilitative dispute resolution. By and large, they are refugees from the chronic damage that is the product of traditional divorce wars, with little knowledge of the historical context out of which the collaborative movement was born. There is an implicit acceptance that simply “getting the case settled” is sufficient success. Similarly, in the reports of success in collaborative cases, there seems to be a tendency to celebrate the achievement of a settlement, without examining the process design and application to see if it optimized the opportunity for clients to achieve their best settlement. In each case, there is a powerful temptation to see one’s professional expertise as the sine qua non of the solutions to the clients’ issues and a failure to understand the impact that such an evaluative approach can have on the quality of the outcome.
Client-centered means there is recognition that the creation of a non-threatening, non-hostile environment is only a first step, not an end in itself. It means that, after identifying the most important shared goals of the parties—those objectives that unite their interests (e.g. protect their children during the process, secure their own financial futures)—the process and its strategic application will consistently, constructively and steadfastly work to allow the clients to achieve those goals.
The first strategic objective of professionals working in a client-centered process is to raise clients’ awareness of the direct connection that exists between success in achieving their macro goals and their behavior throughout the process. In contrast to the adversarial approach, advocacy in a client-centered model becomes advocacy for the process rather than advocacy for a position. “Feeling safe” is no longer some abstract concept; it becomes the clients’ experience of an environment and a process that is transparent in all its aspects: communication, information development, transitional decision-making, option development, consequence evaluation, bilateral negotiation, and resolution.
In a client-centered process, the identification of these types of shared, macro goals becomes a critical primary task. A macro goal is an outcome objective that is held by both of the parties and is so big as to seem simplistic and obvious. It is identified by asking what I would call a big, round river rock question, that is a question that has no rough edges to it and is all but guaranteed to elicit a positive response from each. For example: “Would it be your goal to keep the children safe from any damage caused by the divorce?” At the outset of the process when the clients are typically anxious and skeptical, the simple act of having each of them acknowledge these core goals establishes a positive tone and powerful criteria for all that follows.
These macro goals establish benchmarks against which all subsequent actions may be measured. Either the clients engage in the process in a manner that moves them closer to the attainment of those core goals, or their actions take them further away. If the process structure and applications have been strategically designed to give clients every opportunity to achieve those goals, then one of the most important aspects of a client-centered process has been achieved: highlighting the responsibility that the clients bear for the success of the outcome. They can choose to act strategically with the support of the process and the professionals, or they can allow their emotions to drive their conduct, with the predictable chaos that results.
Client-centered means that the process is: of the clients-- its primary objective is to identify the shared goals of the parties, i.e. their macro goals; about the client—it helps the parties articulate and define their concerns and interests in a manner that enhances the likelihood of their achieving their macro goals; for the clients—it requires that the clients be educated regarding the cause-and-effect relationship between their goals and their behaviors while the process is in progress. The process adapts to client need, rather than unilaterally requiring that the clients adapt to the process. In too many instances, well meaning professionals are trying to get the clients to conform to the principles and guidelines of a collaborative approach without helping the clients to see how those abstract principles connect to their most important goals on a pragmatic behavioral level.
Viewed from this perspective, the roles of the professionals need to be transformed. The most meaningful outcomes will be those that respond to the inner needs of the clients rather than to the codified values of statutory enactments, judicial interpretations, or intellectual theory. They will be outcomes that represent the attainment of the clients’ most important shared goals. We do not find out these inner needs and macro goals by becoming “talking-head” experts. On the contrary, the limited usefulness of our attempts to provide answers must give way to the infinite potential of our ability to ask questions. We must inquire, and become more curious. We need to become skilled in the art of the question.
This is a particularly challenging task for legal professionals who are schooled in the art of advocacy and for whom control is the lynchpin to the professional responsibility they assume when they undertake to represent a client. However, the revolution in family conflict resolution that was launched three decades ago, going back to O.J. Coogler’s first family mediation training in Atlanta in 1974, and which was given a second stage boost in 1990 by Stu Webb through his collaborative law model, has as its primary characteristic the shift in responsibilities from the professionals to the clients. This is a necessary shift if the clients are to achieve their macro goals. They must become responsible for the substantive outcome, and for them to do so, the professionals must take responsibility for the design, implementation, and management of the process.
To let go of trying to control the outcome of the process and embrace the art of strategic inquiry, we must ask the most fundamental questions:
As professionals, we must respond to client emotions by offering principles that support their macro goals and processes that will help them control the negative potential of those emotions while working collaboratively to achieve those goals. One of the most significant contributions that the collaborative practice model has made to this revolution has been the introduction of the interdisciplinary approach to client need. The recognition that divorce creates significant legal, financial, psychological and emotional needs in our clients and the creation of a practice model to address the confluence of those needs fills a vacuum in the dispute resolution options for clients.
“Client-centered” means that we address the whole client, as well as the family dynamic that the couple brings to the process. It challenges us in our roles as professionals, daring us to let go of our conditioned urges to control the process, or worse, to attempt to control the outcome. It honors the clients by having them experience their professionals as partners in the task, rather than as masters.
Whether we are working as mediators or as collaborative practitioners, it is our common concern for the welfare of the clients, and specifically their children that is the shared macro goal of professionals of every stripe. We are constantly modeling behavior for the clients, whether we are mindful of that fact, or not. If we do not walk the walk, then everything else we do is just so much talk. The key for us as mediators and collaborative professionals is the same as it is for our clients. The greatest accelerant to the elimination of any notion of competition between these ideologies is increased communication, open dialogue, and the identification of our shared macro goals.
As professionals, we miss an important opportunity when, as proponents of mediation or collaborative practice, we engage in partisan attack-and-defend reactions. The family metaphor of sibling rivalry is appropriate and revealing. The older sibling (mediation) naturally resents the newest member of the family for all the attention that is being showered on the “upstart” who just arrived. The younger sibling (collaborative law or collaborative practice) has demonstrated a blissful ignorance of the thirty plus years of experience that the older sibling brings to the table. We also know from the family model that a nurturing parent voice would teach us to celebrate the strength of our family relationships and to deepen them by exploring and exchanging the talents and gifts we are each fortunate to possess.
There is a bond that distinguishes our facilitative family from the adjudicatory families. As mediators and collaborative practitioners, we are a “client-centered” family. As I am not completely described in my work by the label “mediator” or “collaborative professional,” I believe a more appropriate characterization of my occupation is “Client-centered Family Practitioner.” I come from the family of mediators and collaborative practitioners, and they are all my brothers and sisters.