Blaming the Process

by Mark Weiss April 07, 2013

When has litigation failed? I sometimes hear litigators assert that the Collaborative process has “failed” and give harsh criticism about the process. You may have heard a litigator expound on a client story and blame the Collaborative process for the experience. But when has the litigation process failed? Has it failed when clients who get a taste run away to the Collaborative process? Has it failed when a case is not settled? Has it failed when the cost of a trial has nearly depleted the estate of the parties? Has it failed when there has been an appeal? Or when enforcement becomes necessary because court orders are disregarded?

Why is it so common for the Collaborative process to be blamed when a client reports having had a bad experience? A bad experience in a court case does not seem to result in similar blame—instead one of the lawyers, the judge, an expert, a client, or no one, gets blamed and the circumstance is explained away. Why the double standard? Every bad experience or termination in Collaborative Practice seems to be extrapolated into a defect of the process itself while the 90% success rate and unparalleled client satisfaction rate of Collaborative Practice seems to go unnoticed.

Even those who have been trained in Collaborative practice sometimes hold the process to a double standard, as if a single case experience condemns the process as a whole. Our worst doubts and fears seem to be bolstered by an unfortunate anecdote, while we forget that such failures are in the small minority. If perfection were the minimum standard, our world would look very different. There would be no heart bypass surgeries, or any other medical procedures or drugs, for those do not have a 100% success rate; some patients even die. There would not be any road or car built, because none can be completely safe. We would also not have courts or prisons, because juries and judges do not get things right all of the time—even in cases with high standards of proof. Collaborative Practice too cannot be successful 100% of the time—even if we wish it would be. All professionals—regardless of profession, practice, and process—can learn and improve. All professionals should critically examine their clients’ experiences—the good and the bad—to improve the services they offer.

For my litigator friends, perhaps the harsh words about the Collaborative Process is a function of its relative unfamiliarity. Most have not been trained in the process, and never observed a functional case. Perhaps they fill their gaps in knowledge with a fiction that is based on fears and stories. Regardless, it is curious how anecdote seems to gain a life of its own. And how those anecdotal stories at times can even feed our own doubts and fears.

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