Zealous Representation As Compared to Zealous Advocacy A Comparison of Litigation and Collaborative Practice
By Michelle Daneshrad
The two people who share everything that is important to them, their children, their finances, their peace of mind, are placed in competition with each other in the litigation model. In the Collaborative model, the couple are supported by legal, financial, and mental health professionals to listen, understand, communicate their needs, and together plan a future for the best of both.
In litigation, the focus is the competition between the couple. It becomes about winning against each other. Many times, matters that were not a conflict before become a conflict. For example, the couple had issues about money and communication, but did not have any issues with co-parenting. It is very common, to find such couples get into a huge custody battle, because the focus of litigation is competition.
In Collaborative, the focus of the model is building a new partnership for divorce; it is about building agreements that work for the two of them. In the process, the professionals help each spouse be understood. When people are understood they can think and problem solve.
However, when people are placed in fear, it is hard for them to be reasonable and problem solve.
Admittedly, there are situations, when one spouse, usually filled with anger, wants to harm the other and for those families, litigation may be the appropriate forum. Collaborative process, unlike litigation, is a voluntary process. If both are not willing, it will not happen.
However, most married couples want a simple and easy divorce. The common way, litigation, places them against each other. They think they have to compete and fight for their interest against each other because the system is designed that way. Now everything that matters to them is at risk as they go against the person who has been their confidant and life partner. Obviously, in that forum, they feel they have to protect themselves.
Lawyers have been trained to represent clients zealously. They fight for you. The couple’s finances become the fuel for the war until there is no longer any fuel left and then the lawyers don’t work for free and the parties try to pick up the pieces after the war and settle.
What about the duty to zealously advocate for your clients? How does that duty fit in the Collaborative process?
In Collaborative, the idea is that the best interests of clients are preserving their health and wealth and their children’s well-being from litigation and through an outcome worked on by both so that the couple are both okay with the outcome and can live with it.
As different from litigation, where, even after trial and orders, the couple keep coming back to court because it was never really resolved for them.
Collaborative attorneys zealously advocate for their clients speaking their truths, being understood, and understanding the other, as the pathway to an outcome that preserves all that is important to them. We advocate peaceful resolution, the best interest of our client. In litigation, parties do not speak for themselves, they are represented by their lawyer because it is not about the telling the truth to yourself and the other. It is about telling the story in a way that makes you look good and makes the other look bad so that you win your case against the other. It is an art of persuasive argument that attorneys are trained to do. No one likes losing, so many times there is no end to the game until there is no money left.
Therefore, in litigation zealous representation is necessary. In Collaborative zealous advocacy for reaching an outcome that is satisfactory to both through team work. It is a win-win.
michelle@smartdivorceoptions.com