Bar News - November 19, 2014
Opinion: First Do No Harm: Counselors at Law and the Commitment to Settle
By: Lisa Forberg
The term “counselor” evokes the image of a wise advisor helping clients make the best choices. The role of a counselor at law and that of a therapist or mental health counselor can be similar, or they can be worlds apart. In legal disputes, in or out of court, is it possible for us to follow the mantra “first, do no harm” with clients who are seeking our advice?
It is all in how we define “harm.” David Lee, the fictional family law attorney in the hit TV show “The Good Wife” would have us believe that harm is caused when our divorcing clients don’t get as much money, property, or time with the children as they want. This notion of “getting as much as possible” for our clients is ingrained in us as lawyers. We rarely question it as a worthy goal. This goal is also how some family law clients define success, demanding that their lawyer throw the opposing party under the proverbial bus to achieve that goal.
But perhaps harm is instead caused when the family law attorney routinely encourages clients to get the most stuff, viewing the case simply as “us versus them” with only one “winner.” In this mindset, the other party, someone they once loved, becomes a non-entity, someone to beat in the quest for the biggest piece of the marital pie.
There are many ways to resolve family law disputes. The parties can sit down together and resolve matters without professional assistance; they can mediate or collaborate; or they can hire two litigators and leave it to a judge to decide all of the terms.
In reality, litigating clients are often disappointed to find out that no one really wins or loses in family law cases; that the court, out of a policy of fairness, imposes a compromise on the parties, unless the parties settle. What if we were to take the courtroom out of the equation and made a professional commitment to settlement? This is the lynchpin of Collaborative Law.
Most family law cases settle out of court. Despite settlement being the norm, the various non-litigation paths are called Alternative Dispute Resolution methods. Perhaps someday litigation will be viewed as the “alternative,” if lawyers place added importance on their role as counselors.
Most clients dread the thought of court. They do not want to be cross-examined. They do not wish to let a stranger make important family decisions for them regarding their money and their children. Most clients want to maintain their privacy and dignity. Most parents care deeply about their children, whether young or grown.
Often people engage in battle because they perceive, or were advised, that they must do so to get a fair result. But this is not necessarily true, when we acknowledge that the end results are often the same regardless of the process used. The legal community can change that perception by putting more time and effort into getting to the heart of the parties’ underlying needs and concerns. Getting at the true needs and concerns without positioning allows cases to be settled sooner.
As counselors at law, it is our job to help clients move through and beyond their anger and disappointment about their failed marriages. We can help them see how their emotions are causing them to remain stuck in unreasonable positions and to spend too much time and money on the divorce process.
Our judges welcome it when our clients talk to each other and settle their differences. Parents are expected and often required to talk to each other, with help from a neutral professional, before bringing their disputes to court. New Hampshire court rules and the rules of professional responsibility require lawyers to talk to each other and work out procedural issues before seeking court help.
How many of us have seen the power of direct discourse to resolve matters when the parties do face each other and talk honestly about their concerns and fears, rather than remaining locked in unreasonable and limiting positions? This can and does happen, even in litigated cases, if the lawyers just allow their clients to explore their differences honestly, or use the power of a simple apology to move the betrayed spouse to embrace settlement.
How many times do our divorcing clients start out in rigid positions only to find that they eventually move toward compromise to avoid the risk of trial, or because their anger has subsided and they develop some compassion for the other spouse, or because they begin to see the harm their fighting has caused the children?
Why can’t we make settlement the expected outcome and perhaps even commit to settlement in cases where it is deemed feasible? Don’t we do a service to our courts by making settlement the goal of our cases, rather than just one possible outcome?
In the collaborative process, clients maximize productive face-to-face discourse with legal counsel present each step of the way. The focus is on a win-win solution that takes into account what the clients truly value for themselves and their children, versus simply “getting the most stuff.”
In collaborative cases, clients spend less money and take a shorter time to reach settlement because their lawyers agree not to litigate the matter. This agreement to limit the scope of representation is what gives the collaborative process its power.
Perhaps by focusing more on the role of counselor, settlement can become the expected result and litigation the rarity in all family law cases. With a full commitment to settlement, our focus can be better aligned with the concept of “first do no harm.”
|Lisa B. Forberg
Lisa B. Forberg is past co-chair of the Collaborative Law Alliance of New Hampshire and a practicing family law attorney in Manchester. She can be reached at firstname.lastname@example.org.