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When I went to law school more than 30 years ago, I was offered the traditional law school training that prepared me to represent clients in the traditional, adversarial manner. I had been a teacher for ten years and had seen the impact of divorce on small children in my classes. I decided to see if I could make a difference to how families 'came apart' if they had to. I also had my own awful personal history with the legal system in New York State; when I divorced in 1977 you actually had to accuse your spouse of adultery or some other terrible offense, even if it wasn't true.
Off I went to law school, naively thinking that in addition to learning substantive law, I might learn how to negotiate settlements that were healthy and effective for the whole family. I hoped that people wouldn't have to lie in order to get divorced (New York State law has only recently changed).
There was only one class on Negotiations at my school, where we were given roles to play as defense attorneys and criminal prosecutors. As defense attorneys, we were supposed to get as little 'time served' for our hypothetical client as possible. As prosecutors, we were supposed to maximize the prison time. The whole exercise was framed as a win-lose and graded accordingly.
I was given a D on that exercise because I compromised with the other student lawyer, trying to be 'realistic' about what made sense based on the facts we were given. My professor praised those students who actually failed to make a deal or who got deals on either extreme of the spectrum, no jail time or 25 years.
The truth is for those of us drawn to law school, hoping to be problem-solvers and even peacemakers, trying to fit our aspirations into a legal system designed solely to create winners and losers, to be judged on how much you got or how little you gave up, without regard for what was sensible or suitable, was a challenge.
Fortunately since I graduated from law school in 1980, a whole world of dispute resolution has opened up and blossomed into a thriving field dedicated to representing our client's needs and interests in creative and deeply satisfying ways.
I trained to be a mediator more than 25 years ago when mediation as an option, especially in family law, was new and greeted with some skepticism. There was for many years, the worry that women would be taken advantage of and that men would dominate the process. Because good mediators are well trained in recognizing power imbalances, in recent years those concerns have been laid to rest.
As a mediator, my role is to be 'neutral.' Mediators do not represent any client to the dispute. We sit in the 'chair' in the middle of the conflict, trying to help the clients hear each other, encouraging clients to compromise and make a deal that will satisfy most of their interests. Mediators can't give legal advice; many will give legal information. Some mediators are more active in the process than others, depending on our training, personal style and the expectations of the parties.
Being a mediator is a very creative and satisfying profession. From my 'neutral' vantage point I can help parties craft agreements that are personally tailored to their situations and circumstances. Parties who use mediation to resolve their differences can often get 'more' than if they had gone to trial because a judge is limited by the law while the parties can agree an outcome which is more generous and better suited to their needs.
Collaborative law has become very popular in the last 15 years. Lawyers who are specially trained in the process represent clients as part of a very structured system designed to solve problems and to be creative, all while actively seeking resolutions which satisfy both parties' needs and interests. The collaborative lawyer has her eye on the well-being of the whole family.
Collaborative representation is the best way for me to be a lawyer. I use my skills as a negotiator, my many years of experience in family law and my dedication to teaching my client the skills to not only resolve this conflict, but to resolve conflicts in the future. I try to open the frame of my client's thinking and understanding so that more options can be considered.
I can counsel and educate my client about options that will meet his needs, while encouraging him to be concerned about his wife's and children's future as well. I know that my client's future will not be robust and fulfilling if his children aren't thriving, and the children don't do well if one parent is struggling and the other is 'flying high.'
I love stretching myself and my client to do more and be more than the minimum required by the law. In one case I represented a husband who was a successful businessman. His wife had dropped out of the workforce for several years to raise their children, an agreement they had made while their marriage was thriving. As a mediator, I encouraged my client to understand and appreciate the impact this had on his wife and her financial future. In a traditional settlement, the husband might have had to pay support of $25,000 for 8 years, or $200,000 with no cost of living increase.
We actually agreed to take the total he would have paid over 8 years and give her more in the early years (we call it front-loading support) so she could get back onto her career path, and pay somewhat less over the last 2 years so he would have some relief. Instead of $25,000 per year for 8 years, he paid $35,000 over the first 3 years, $25,000 for the next 3 years and $20,000 for the last 2 years.
The total he paid was more than he might have been ordered to pay as the outcome of a trial, but he was making an investment in her financial success and she was able to know exactly what she would get each year so she could plan her own future. More importantly, there was a huge element of respect in having my client acknowledge his wife's sacrifice for the well-being of the family and now she should be supported as she transitioned to an independent life.
I have made my dream come true. As a collaborative lawyer I am a peacemaker, a problem-solver, a creative thinker and a strong advocate for my client's future well-being.
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