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Inviting the Dialogue: Mediation and Collaborative Practitioners Together

Written by Peggy Hoban, Attorney at Law & Holly Hohlbein, Attorney at Law Wednesday, 19 November 2008 03:13

Picture an overgrown garden, a high hedge blocking the view from inside and out. The only entrance to the garden is padlocked with a rusty chain and lock. Inside the garden, a person rattles the locked gate, wondering what the outside world has to offer, but the gate remains tightly locked. On the outside of the garden, a passerby spies the gate. Curious about what is locked inside, they too, rattle the gate, to see if it might open.

The increased acceptance of collaborative law¹ has given rise to a vibrant dialogue in both the collaborative law and mediation communities. There is a need to engage in dialogue between the collaborative law and mediation communities. Part of the dialogue is how these two conflict resolution models can work together and complement each other while at the same time to not compete with each other, or to presume that one is better than the other. This article puts forth an invitation to both communities to join each other in dialogue.

That the mediation and collaborative law communities find themselves in apparent conflict is a situation laden with paradox. It is paradoxical because many collaborative law professionals are also mediators and because both communities share certain core values. For example, both place a premium on self-determination of the clients, and both focus on interest-based negotiation to achieve durable agreements. At the same time each community seeks to define and distinguish itself in the field of conflict resolution as well as the world at large.

Perhaps it is our common interests as well as our desire to have our unique qualities appreciated and understood that creates the tension and gives rise to the need for ongoing dialogue.

History:
There is a history to the relationship between mediation and collaborative practitioners.
Mediators pre-date collaborative practitioners by an estimated 20 years.² Those two decades during which the mediation community honed and developed an interest based dispute resolution process played a significant role in laying the foundation for the collaborative law movement. As a social movement, collaborative law is now where mediation has been. In the same way that there was resistance initially to the mediation movement, history is repeating itself for collaborative law. The 8,000 pound gorilla in the room is a perception that the two communities are in economic, philosophical and professional competition. However, by focusing on differences, we deny our shared history and miss the opportunity to work together and complement each other. It is time to bring our two communities back together.

How do we bring our communities together?
How do we learn to be together as well as apart?   The answer is dialogue: we need to open the locked gate. There is a territorial nature to the two worlds that is counter-productive to both. We need to have permeable borders without losing our individual identities. We are both helping our clients to resolve conflict to be able to move on with their lives in a healthy and productive manner, albeit in different “models.” But by learning more about each other’s services, clientele, styles, talents and skills, we will be able to match client needs with services. This will enrich our clients’ lives, and our professional lives. We will have trust to refer and cross-refer to mediators and collaborative professionals, which will assist both communities to serve the clients’ needs in the best possible manner.

How do we distinguish ourselves?
Mediators and collaborative practitioners come to interest-based work in a myriad of ways. Each professional’s unique journey into the world of mediation and collaborative law is a distinguishing factor. Education, professional training, work life, subjective experiences, and philosophies may be vastly different. While all of us are trained in conflict resolution, some are also attorneys; some are also health or financial professionals, with a wide variety of credentials; and others draw primarily from their unique life experiences to help people in conflict.   Our diversity, while challenging, is our strength. While there may be competition premised by some who think that their work, life or educational experience makes them more qualified to resolve legal conflicts, this actually deters from the great meeting ground and potential that is there to work together as mediators and collaborative law professionals.

Mediation and collaborative law are distinct:
In the same way that people engaged in these two models are different, the processes themselves have differences. Mediation is centered on one or more neutrals that help disputing parties settle their case. A mediator must be neutral and is not an advocate for anyone in the process. Mediators typically do most of their work alone without the direct support of other disciplines. Although clients may be working with other professionals such as attorneys, financial or vocation specialists or therapists, these professionals are not an integral, coordinated part of the process.

Within the mediation community there are also distinct differences. “Mediation” encompasses many different mediation approaches. As a practical matter, many if not most mediators employ skills from various styles of mediation; however, the model in which they are operating from may be different. There is the shuttle-type, or evaluative (directive) approach where parties are in separate rooms, and the mediator goes back and forth, educating clients about the legal landscape and how it affects their case. There are facilitative and transformative mediators who work with both parties in the same room. They employ reflective listening skills, high end goal setting, and helping clients through the negative emotions that cause impasse.

Collaborative Law:
In the same way that different styles of mediation offer options to clients, collaborative law offers a different panorama of services. The collaborative process is built upon advocates and neutrals working in an integrated way to create a structure in which disputing parties can resolve their differences. The advocates in the collaborative process are the attorneys, one for each party. Like mediators, they are committed to settlement and not litigation. ³ This commitment is reflected in the principles that govern a collaborative case: transparency, good faith, full disclosure, and teamwork. The neutrals in the collaborative model are the coach/facilitator, financial specialists, and child specialists. Together, the professionals create what is known as the collaborative container.

Where the two approaches intersect:
Despite the differences, the core values and goals of both collaborative practitioners and mediators are the same- helping their clients attain a peaceful and durable resolution. Both approaches are client-centered and non-adversarial. Privacy is paramount in both mediation and the collaborative process. In both models, there is a focus on hearing clients’ stories, and helping them move towards closure. In either process, clients will experience the power of identifying shared goals, and taking steps towards creative problem solving when there is a difference, and moving towards solution and making durable agreements.

Bringing it all together:
We can learn to be both different and the same. We can learn to be apart by honoring and embracing our differences. We honor the differences by referring to mediators or collaborative practitioners where appropriate, and bringing in a cross-professional into an existing case when needed. There is great potential in the area of furthering education and awareness between our two communities. Cross-training honors our unique gifts and promotes awareness, expanding the value of both communities. Conversely, we can learn to be together by focusing on honing and integrating our shared skills. We can brainstorm ways to view “neutrality” “advocacy” and “team” in a broader, more holistic way that can bring us back to our common roots. We can be curious about each other. Most importantly, we can keep our dialogue going. In these ways, and other new ways, we can define and expand the borders. We see this happening now wherever mediation and collaborative communities intersect. The dialogue has begun.

Conclusion:
We are becoming aware of the contours of how we are different and how we are the same.   Boundaries and borders are where we meet. They define not only where we stop but where we start. We need to embrace our differences and our similarities to be truly effective for our clients. How we set aside competition and work towards synergistic and complementary ways to serve our clients defines who we are and whether we truly have a shared commitment to peace-making. As conflict-resolution pioneers, mediators and collaborative practitioners share a desire to transform the legal process. We can do so more powerfully, together.

The authors would like to gratefully acknowledge mediator andcollaborative practitioner Sandra Barto for her invaluable suggestionson this article.

Peggy Hoban is a Seattle-based Collaborative Family Law Attorney and mediator. She came to the field of law interested in human rights, and applies those principles and values to her work in collaborative family law. She is a member of King County Collaborative law, the KCBA Collaborative Law and Family Law sections, the KCCL Mentoring and Membership Committees ,and Cascadia Collaborative Law. She can be contacted at (206)624-2242; This e-mail address is being protected from spambots, you need JavaScript enabled to view it ; or www.hobanlaw.com.

Holly Hohlbein practices exclusively in the area of collaborative family law in Kirkland, WA. She is 2007-08 Co-Chair of the KCBA Collaborative Law Section. She is Vice-President of King County Collaborative Law, and a founder/member of various collaborative organizations including Eastside Collaborative Law, Coho Collaborative, and the International Academy of Collaborative Professionals. Holly is a trainer, author and presenter on collaborative law, and has 19 years of experience in family law. She can be contacted via phone: (425)576-4194; e-mail: This e-mail address is being protected from spambots, you need JavaScript enabled to view it ; or the web: www.hhattorney.com.

¹ Collaborative law is a dispute resolution protocol that works in a team model with specially trained attorney advocates for each party and neutral team members for both, such as financial specialists and divorce coaches. For a further description of collaborative law, see: Stuart Webb and Donald Ousky, The Collaborative Way to Divorce. (2006)
² See: Id. Also see, Community Mediation Programs: Developments and Challenges, Daniel McGillis, Issues and Practices,NIJ, July 1997.
³ See Pauline H. Tesler and Peggy Thompson, The Collaborative Divorce. (2006) (Appendix B: Participation Agreement)