Thoughts on Collaborative Family Law for my Conventional Family Law Colleagues

Following are some thoughts recently posted to colleagues who practice in non-collaborative divorce and family law settings. In other words, to those attorneys who represent clients at contested hearings before a judge, judicial officer or arbitrator who has the power to make decisions for the former spouses or partners, irrespective of whether those former spouses or partners consent.

Having given up litigation, and wanting to share what I’ve learned from practicing collaboratively for over 20 years now, I helped put together a workshop (or CLE, which stands for “Continuing Legal Education” on this subject). Here’s what I wrote about that presentation, slightly edited for clarity.

Greetings all. This organization has been intending to host CLEs around the state on various topics. The inconvenience of a global pandemic has intervened just a smidge. But we’re trying to get things on track with this offering which will be presented online, in the convenience of your preferred location and, optionally, your PJs.

The subject is one close to my heart. Those who have read my ramblings know that I can mount a soap box and wax on essentially forever about collaborative law. But since this is a community devoted to excellence in family law in every way, this offering is focused on how collaborative principles lend themselves to non-collaborative cases. After all, as many traditional DR attorneys have pointed out, these distinctions are not binary. Our cases are not uniformly collaborative or combative, and even the most challenging tussle may benefit from a dollop of something unexpected, a perspective that may open an unforeseen passage.

Years ago, when serving as a pro tem settlement judge in a court that held conferences on the eve of trial, there were times when everyone in the room was gobsmacked that a case on a seemingly inevitable courtroom trajectory unexpectedly settled. When I was the settlement judge, it was invariably collaborative skills and perspectives that opened the door. For instance, in one case I’ll never forget (and have written about before), after making space for an irate wife to vent a bit, then responding “I get that you’re angry. Would you be willing to share what it’s about?”, all the pieces fell into place. Was not something I’d planned to say until that very moment and yet, somehow, it changed everything. A few minutes later she was talking about the fear and despair that underlay her anger and then the husband was offering expressions of validation and empathy and then — settlement.

Admittedly, that was exceptional. Not the kind of thing I can promise because it doesn’t necessarily happen even in the most collaborative settings. But it would not have happened, could not have happened, but for the early skills I was learning as a then-young (callow, idealistic and not afraid to try new things) collaborative lawyer.

Of course my efforts didn’t always work. I could tell a few embarrassing tales too. But over time it became impossible to ignore the fact that my collaborative training and practice was improving my overall skills as a litigator. I’d settle more cases, not from a position of weakness (collaborative isn’t about allowing your clients to get run over) but rather with strength and resolve and yet also friendship and openness to new possibilities and perspectives. I’d try to get a sense of what the other party was up against and bring my sense of that understanding to opposing counsel and my client. And also help opposing counsel to understand where my client was coming from, the feelings and needs underneath his or her positions and words. I saw more and more that it was always about more than what presented at the surface. Always so much more to it than dollars or days of parenting time. It’s funny to even use the term “opposing counsel” now because I no longer think that way. The attorneys in my cases are friends, teammates and colleagues. Though I’m sure I wouldn’t feel that way about every case if I still litigated, this perspective nevertheless changes one’s interactions on all fronts. It changed the way I approached courtroom days and made me more skillful when I raised objections, cross examined a witness or presented an opening or closing statement.

I recall the last case I litigated in Tucson before moving to Washington. It wasn’t a full trial but only a temporary orders hearing. However in Tucson at that time (I don’t know what it’s like now), every hearing involved live testimony. This kind of routine hearing typically ran two to four hours. When we had concluded, I remained in my chair taking notes after the other attorney had left while the judge spoke with his staff. Then, as I finished and began to stand, the judge stopped me to say, “Mr. Martin, I really like your style.” He said it was calm and measured and that he appreciated attorneys who practice this way. Even before thanking him and walking out of the courtroom, I wanted to laugh out loud because it was so far from where I began. I remembered one of my first trials in which the judge had sustained an objection which I knew to be wrong because he didn’t understand the rules of evidence. I was trying to explain why a statement I was introducing wasn’t hearsay by definition because “My daddy’s the devil” isn’t intended to prove the truth of the assertion itself. It was maybe our third time around on this point (on which I was positive because I’d gotten an “A” in evidence and the professor had literally written the textbook). Somehow, that didn’t impress the judge who was beet red, literally shaking his finger in my direction and probably about to throw Blackstone’s at my head.

So 15 years later, what had changed? I had not in those years become a smooth operator with slick social skills. No, mostly what changed was my paradigm, my way of approaching cases. The way I thought about law and my purpose in this absurdly emotionally fraught and complex world of divorce law had shifted immensely. For instance, I’d come to see that it’s possible for a party to win everything that can be won in a courthouse and still lose.

Tragically, there’s a time for winning at another’s expense. Times when an epic battle is not merely advisable but essential. I’m grateful that I have colleagues who are up for those challenges since I’m no longer willing to strap on the heavy armor and walk into that ring. But even then, in that crucible, I’ve found that human beings — being, well; human — there can be moments when an unexpected seed sprouts in an unforeseen place.

On Friday, April 9th, my colleagues and I will present a half day CLE on collaborative law designed for the benefit of traditional family law attorneys. I believe it will be interesting both to those curious about collaborative law itself and also to those who don’t see the value. My intention is to provide Q&A time in my portion of the presentation to address the concerns of all comers. I seek not politeness but rather sincerity — each participant’s thoughts, varnished or otherwise. All questions will be addressed head on. Just as I do with clients. There are times when I tell clients about non-collaborative options because the case warrants it. I believe there are cases where you should be telling them about collaborative possibilities.

I’ll provide an overview of the collaborative paradigm and, as mentioned, space for Q&A. Theresa will provide her sense of how collaborative perspectives have inflected her litigation practice and Kevin will explore the interconnections and interactions between RCW 7.77 (the Uniform Collaborative Divorce Act as codified in Washington state) and the Rules of Professional Conduct. Afterwards, I’ll be willing to stick around to address any remaining questions. Perhaps Theresa and Kevin will too (though I speak not for them).

Thank you for reading this far. I recognize that succinctness is not among my virtues. If you feel moved to be there on the 9th, please join us.