Strategy for Living the Collaborative Dream

by Maury White September 08, 2014

Our Practice Group has been around since the late 1990's. We have had three iterations of a Participation Agreement and current leadership has prepared a new third iteration of Protocols; all ambitious efforts which required great amounts of time. These efforts, however, only take us so far; with all iterations, we continue to struggle to find the trust, empathy and shared purpose which “good” cases require.

I am left with the question, why is our group spending so much time and effort developing plans for how to do a case, instead of taking time to develop strategies to avoid the nasty ones and to help clients experience the higher aspirations of our Collaborative Movement. Through the years we have recognized that modicums of trust, empathy and shared purpose are essential elements of a “good” case; but that’s not the entire recipe. The Participation Agreements and the Protocols set forth foundational mandates (for example, limited representation, informed consent, privilege and confidentiality), as well as suggestions about how to maneuver through the Process: from information gathering to acceptable solutions. Read these documents and you have a plan for doing Collaborative work; what you won’t have, however, is a strategy for conducting a “good” Collaborative Process grounded in trust, empathy and shared purpose.

Strategy for conducting our Collaborative Process requires more than a plan; more than a Participation Agreement and more than a fresh (or dusty) set of protocols, locally developed or borrowed from the IACP website. I believe that strategy requires a deep understanding of what our personal and professional roles are in any particular Collaborative Process; conscious commitment to a process that requires different skills and different approaches to our role in that process. My strategy is to understand my role as advisor, evaluator and negotiator; my role does not require advocacy; I leave that for the clients’ second option: the adversarial process. And, it should go without saying, that my memberships in the local and international Collaborative practice groups, indicates that I am “an advocate” for the Process; why else would I be in the group (a question for another day to all those open groups out there)? 

By understanding my role in the process I insure that I will have a meaningful experience, and that my client will achieve his or her goals of controlling her outcome, being empowered to make his own decisions about what is best for his children and having a direct dialogue in a safe environment. If only our group had this simple strategy as to how we will play and how we will win, the rest would fall into place. But we don’t; we just continue to make plans and we don’t examine what has worked and what hasn’t; where I’ve slipped and where you stumbled. We don’t have common understanding of what Collaboration is and how it works.

If we know our role and respect our limited representation, the Collaborative Process is what enables the participants (parties and non-party alike) to hold the empathy, trust and vulnerability which our plans (the Participation Agreements and Protocols) can only dream about. Knowing your role means you have a strategy; how you will play the game. This involves conscious choice by client and professional alike. It involves limiting options for the time being (no litigation or restraining orders) and limiting representation (the dreaded disqualification clause). This is scary; and plans help you feel safer. But strategy is really about placing bets and making hard choices. You can’t eliminate risk, but you can increase your chance of success. Isn’t this why we do Collaborative work; for more successful families despite divorce? There is always some degree of uncomfortableness and apprehension with the choice, but does it compare to the courtroom? I think not. There are always surprises; isn’t that the fun part?

So if Collaboration is chosen, the clients will determine what is acceptable and what is not. My strategy is to be “co-guardian” of the Process. I can let go of the outcome. Secondly, I know that no process is perfect. We are human, our clients are human and we are involved in human endeavor; sometimes our strategies fail. This is okay. I am not obsessed with screening for appropriateness; I am reasonable about it and I have a definition of “reasonableness” in my Code of Professional Conduct to rely upon. I believe in the Collaborative Process, and I know it works 95% of the time. When it doesn’t, it is not because of failed strategy, but failed expectations; too much time planning and not enough time paying attention to the differences between positions and interests. Are the clients worse off for having tried? Not if we were transparent and vigilant about our work and committed to keeping clients on task. Finally, the third aspect to my strategy is being clear with clients and colleagues about what needs to change for strategic goals to be met. This is about briefings and de-briefings; with clients and with colleagues. This is about case review and recognizing we all have skin in the game and that our skin better be tough. We can plan agendas all day long; however effective strategy requires personal risk. I have found it makes all the difference. I hope you do too.

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