When you and your spouse choose collaborative practice as the process for resolving your divorce, it is critical that your collaborative lawyer provide the advocacy that you need, and that your voice is heard during the settlement conferences.
What is the advocacy that you need from your collaborative divorce attorney? Very simply, that depends on you and what you need at any given moment in the collaborative case. Collaborative practice is very fluid settlement process and there is a spectrum of advocacy that an experienced and well-trained collaborative lawyer can provide.
On one end of the spectrum of advocacy is” facilitative advocacy.” Facilitative advocacy is for clients who are emotionally ready to divorce, fully prepared and empowered to assert their needs and interests, and where there is a reasonable level of trust between husband and wife. The collaborative attorney providing facilitative advocacy must make sure that his client knows the agenda, is prepared for each settlement conference, and that both attorney and client are on the same wavelength. The attorney focuses on peace, has a mediative presence, and lets his client do most of the talking during the negotiations.
On the other end of the spectrum of advocacy is “partisan advocacy.” Partisan advocacy is necessary in cases where there is distrust, a greater depth of conflict, and where the client is having difficulty asserting his/her concerns. The partisan advocate will spend more time to prepare the client for the settlement conferences, do more talking during those conferences, and act more like a traditional (but respectful) divorce lawyer than a facilitative advocate. This is necessary in order to make sure that the concerns of the client are fully articulated during the negotiations.
The collaborative lawyer should be aware at all times that he or she is not the only advocate in the room. A great way to think about this is that the attorney is part of a “collaborative team.” The collaborative lawyer must be supportive, facilitative, and when necessary, a partisan advocate. He must be an ally for the client. He must not let go of peace, but hold it lightly when the client wants him to speak up more and be more of a partisan advocate. He must make it clear what the cost may be for the client to get financially what he or she wants. Client preparation is always critical, and divorce coaches can enhance communication and the effectiveness of the client and collaborative lawyer during the negotiations.
Arnold D. Cribari, Esq.
* Thanks to Sheri Goren Slovin, JD from Cincinnati, Ohio and Victoria Smith, JD from Toronto, Canada for sharing many of the concepts and terminology in this article at their presentation on December 6, 2012 before the New York Association of Collaborative Professionals.
