In consideration of the responsibility of maintaining a regular column, I get the privilege of hitting clean-up to the excellent topical perspectives by Stu, Pauline and Barbara. Taken together, they represent a description of a professional world so different from the one which confronted me in 1971 when I took my oath as a lawyer, that the term revolutionary is hardly an overstatement. There was much talk of revolution while I was in law school, as the idealism of the “counterculture” and the political activism of the anti-war movement merged together. The tempering effect of a democracy in a republican political structure, rendered much of the rhetoric of the 60’s and 70’s hyperbolic, as a predictor of social change. On the other hand, in the field of conflict resolution, the contemporaneous emergence of the modern mediation movement began a course change that is nothing short of revolutionary. If we tracked the arc of that change like a Saturn rocket, mediation was the first stage lift off and Collaborative Law is the second stage booster.
When I personally embraced the process of mediation in 1980, I had no grasp of the enormity of its potential. I simply viewed it as another more client-friendly method for practicing law. The deeper I became involved in the movement and the more I committed my professional work to developing facilitating skills, the more I understood the profound change I was making on a professional level. Nonetheless, as the 80’s became the 90’s and we moved into the 21st century, I continued to be struck by the resistance in the legal community to the principles and concepts of mediation. To quote Barbara, “enter Stu Webb…” with his idea of collaborative lawyering.
If his idea had lain dormant in the frozen tundra of a Minnesota winter, only to be discovered by future social archeologists, he idea would be hailed as the missing link! As it is, we have all been present at the birth, so to speak, as he took the conceptual framework of mediation and morphed it into the Collaborative Law movement. In his inspiration, he unlocked the resistance of many lawyers to the challenge of facilitated dispute resolution by designing a process that brought it into the practice of law. This was a natural and evolutionary adaptation that sprouted another branch to the family tree.
Implicit in this profoundly important development is a challenge that will measure client success, in the short-term, and the significance of this branch of the tree, in the long-term. The challenge comes from the interface between the conditioning effect on lawyers of using power for control in the adjudicatory model, and the facilitative characteristics necessary to create and manage a process that is client centered, client empowered and client controlled. The optimistic view is that over time (and we are talking decades in the context of a professional movement), collaborative professionals will be exposed, on a case by case basis, to the skills of more experienced professionals. As each becomes a participant in and a witness to, the small miracles created in such a structured process by the clients, the hope is that the desire to become more skillful and less controlling will compound and regenerate. The risk is that the simple imposition of the Collaborative Law structures (e.g. participation agreement, principles and guidelines, commitment to withdraw if litigation, etc.), will be seen as success in and of itself. Put me in the camp of belief in the former.
I have always admired Pauline’s capacity for articulate expression and find that she figuratively takes words out of my mouth but with an eloquence that I covet as I read her work. It is extremely important that the pioneers and leaders of this grass-roots movement continue to define the conceptual focus of the field as being client-centered processes, as she does in the outset of her article. Her discussion about the relationship between mediation and the collaborative movement in the marketplace of the consumers of these professional services, reminds me of a conversation I had with the owner of a small independent grocery store in my community a couple of decades ago.
A developer was building a small shopping complex around the corner from the “Mom and Pop” store and the anchor tenant was a major chain grocery store. I asked my friend one day, as I was picking up some groceries, if it was not discouraging to see the commercial behemoth that was going to open in the same neighborhood. No, he answered, not at all. He went on to say, that the opening of a major chain store that serviced the same types of products as they sold, would increase business, not diminish it. I was struck by the positive view and attitude and by such a positive aspect to naked commercial competition. I believe that the same positive outcome awaits the maturation of the Collaborative movement as it shares territory with mediation. The combined weight of the two will have client-centered processes dwarfing litigation as the system of choice within another decade or so. The 60% of clients who currently choose to commence their divorce processes in California without attorneys will provide a consumer base that as rich as the oil deposits of the middle east as the public becomes more aware that professional services that respond to client need are available in a variety of formats.
Reading Barbara’s recounting of her own professional journey, her commitment to, and enthusiasm for, meaningful work in service of clients, reminds me of the ah-ha moment I had when I first joined the Academy of Family Mediators in 1991. To be in association with a body of interdisciplinary professionals, all of whom shared the value of commitment to the needs of the clients in a system that measured success by the clients’ standards, and none other, was major change in my involvement with professional associations. Having come to know Barbara in the context of our mutual commitment to the first stage rocket of conflict resolution, it is a pleasure now to explore the commonalities of the booster model.
As we have informally discussed, through our previous correspondence, the concept of “collaborative mediation,” I confess to feeling somewhat conflicted. On the one hand, I value Barbara’s commitment to process goals with which I am in total agreement and I have always enjoyed our interaction when conferences bring us together. On the other hand, I share the concerns of Stu and Pauline with respect to protecting the birth and development of the Collaborative Law model. The conflict arises over the use of the term collaborative (with a capital “C”) as a name for a type of mediation. As the very syntax, vocabulary and definitional terms associated with Collaborative Law are being developed (literally as we write these perspectives), I have a concern about anything that would create ambiguity as opposed to clarification.
Collaborative Law has not yet become such a part of the dispute resolution lexicon as to be known to professionals and consumers alike. So my own assessment of the use of the term as it may apply to mediation starts with the question: Does this term coined to apply to the described process describe something sufficiently distinct to justify the use of term (capital “C”) Collaborative? In contrast to the process concept that Stu created—a process for which there was no existing model—the type of process described in Barbara’s article has a generic name that accurately describes the structure for the model, namely “mediation”. The role of collaborative lawyers as client representatives may be stylistically different from any other mediation with clients represented by counsel, but I do not see that it is structurally different from the typical mediation model. In that sense, the use of the term has more potential to confuse the uneducated consumer base than to clarify it.
Stu’s creation plugged a very major gap in the dispute resolution continuum. When the two choices consisted of litigation at one end and mediation at the other, the vacuum between the two cried out for a hybrid. I am concerned that, at least at the present time, the generic use of the term “Collaborative” could cause more harm to the work necessary to fully develop this model, than it adds value to clarifying the consumer’s choices.
I say I’m conflicted because I also admire, respect and enjoy the kind of creative thinking that caused Barbara to see the symbiotic relationship between Collaborative Law and Mediation, and I am reluctant to do anything to discourage that type of energy. In the final analysis, it is also incredibly exciting to participate in so grass-roots a movement that we can even be having these types of conversations about something that will evolve into a major model for professional service that was not created by the state or federal government. Little did I conceive, as a new and young lawyer in 1971, that in the course of my professional life, I would have an opportunity to join a revolution that was anything but hyperbolic.
©2003 Chip Rose
Reviewed by by Carrie Menkel-Meadow Professor of Law, Georgetown U Law Center Jossey-Bass Publishers, San Francisco, 2000; 649pp.This review is dedicated to the memory of James Boskey, whose contributions as...By Carrie J. Menkel-Meadow