How to choose a collaborative lawyer
An attorney recently told me that she was going to begin advertising that she did collaborative law cases. This attorney has never been trained in collaborative law and has never even taken the mediation training, but she will now be informing the public that she is qualified to do collaborative law cases.
There are currently no uniform standards of practice that regulate the collaborative practice of law in South Carolina, so a person needs to know how to choose a collaborative lawyer.
Thankfully, technology will allow us to investigate an attorney’s collaborative law qualifications. First, check out the web site for the South Carolina Collaborative Law Institute (SCCLI) at www.sccli.org. The SCCLI requires that all attorney members must have competed either the 40 hour mediation training or the 2 day collaborative law training upon their initial membership, but in any case an attorney must complete both trainings within 18 months of their membership date. The bylaws of the SCCLI also require annual continuing education.
Another place to look is the web site for the International Academy of Collaborative Professionals at http://www.collaborativepractice.com. They also have very high standards of membership and an attorney listed on their site will generally be competent to handle a collaborative case.
But what if the attorney is telling you they do collaborative law but they are not listed on either site? They very well may have completed the collaborative law training, but simply have not joined either group. You need to ask them the following:
Have they taken the collaborative law two-day training? Where and when? They should have a certificate proving this.
Have they taken the mediation training? Again, where and when and they should have a certificate.
If you retain the attorney, will he or she sign the Collaborative Law Participation Agreement? If the answer is no, you will not be engaging in a collaborative negotiation.
How many collaborative cases have they negotiated?
Why are they not a member of the SCCLI or the IACP if they have taken the collaborative training?
Why do you care if the attorney has been trained? Very simply put, collaborative law is a different form of legal practice. It does not utilize the standard adversarial dispute resolution techniques. It is an interest based negotiation that may also involve related professionals to assist your family through the separation and divorce process (read “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher and William Ury for more information on interest based negotiations). Collaborative Law focuses on the facilitation of communication and problem solving, while the goal of the adversarial process is to win a case (meaning you win and your spouse looses). Collaborative Law understands that your family will have a continuing relationship after the divorce and separation process; whereas, the adversarial process does not care about continuing relationships, it is a zero sum game designed to win at all costs. Finally, interest based negotiating is not taught in law schools and our judicial system only operates on the principals of the adversarial process.
The bottom line is that the collaborative practice of law is completely different than what lawyers learn in law school and then practice in court. Collaborative practice can only be learned in a two-day collaborative law training, and then followed up with practical experience. An attorney telling your that he or she does collaborative law without having taken the collaborative law training will almost certainly not be able to provide you with what you are looking for.