Collaborative Innovator: An Interview With Chip Rose
By Jennifer Jackson, JD (1999, Collaborative Review, Vol. 1, No. 2)
Chip Rose is a Certified Family Law Specialist at the forefront of collaborative law. He has served on the board of directors of the Academy of Family Mediators, and as an adjunct faculty member teaching advanced mediation theory and techniques at the Strauss Institute for Dispute Resolution, Pepperdine University. Chip has presented trainings in the collaborative negotiation model to bar association groups statewide and nationally, and is the author of the Creative Solution column in the quarterly publication Mediation News. His private practice includes mediation, arbitration, and institutional/organizational conflict resolution in Santa Cruz, California, where he has mediated civil, commercial and family law disputes since 1980.Chip graciously gave up an entire afternoon to share his views with me; from the mountains of material, I have selected a limited number of focused topics which appear to be issues that we as collaborative attorneys are confronting on a daily basis. Let’s hear from Chip:
How did you become involved in collaborative law?
I started my legal career working at the knee of a preeminent "lawyer’s lawyer" who taught me how to be a skilled litigator. He was proud that he could beat the big San Francisco law firms just by being more thorough and well-prepared. As a result, I knew what litigation was about, so my rejection of the process is well-informed. As I continued my practice, I found that I was taking all of the family law matters that came to my firm because I enjoyed them and guess what? No one else wanted them. Granted, it was a difficult practice. My biggest frustration, though, was not the clients, but the other lawyers. In 1980, my brother-in-law, Tom Murphy, now a Superior Court judge in San Diego, told me about this new thing called mediation. As I learned about it, I saw that it fit right in with my concept about how things ought to be done.
A number of years ago, when I first heard about the collaborative approach I immediately saw what a perfect fit this could be between litigation and mediation, and I envisioned what a practical model should look like; what I was doing in mediation was easily adaptable to a two-attorney process.
How do you structure your training sessions?
As I have been in contact with various legal communities around the country, I find that the collaborative approach is one of those topics that’s is bursting onto everyone’s consciousness. Since the first of this year I’ve been doing at least one training a month for individual collaborative law groups, and it looks like that’s going to continue for the unforeseen future. I’m working on a set of protocols that could be a core organizational manual for forming one of these groups and applying collaborative principles from the beginning of a family law case through settlement.
The basic introductory training always goes with that particular group’s interests. As time permits, we first review the assumptions and practical implications of the traditional adversarial litigations model which is rounded in a competitive negotiation theory. Then we turn to the philosophy of the collaborative approach, examining its theory, principles and guidelines. The theoretical approach provides the foundation for understanding how profoundly different the collaborative approach is in every aspect of the attorney’s role in representing the client and facilitating a maximized settlement. From the first contact with the client to the signing of the agreement, there is very little in the collaborative approach that is recognizable from our traditional law school education and practical training as attorneys preparing for the possibility of court intervention at any point in the process. The more groups I have trained, the more I witness the light in attorneys’ eyes as they grasp the philosophical differences and experience the change in their approaches to their clients to the other attorney and to the law.
As we share a common understanding about the traditional litigation approach – based on our training, the law, the rules of court and the procedures of family law – so too, with this new paradigm does any group of attorneys need a common set of shared principles, guidelines and protocols to ensure that each professional representative of the clients is working in concert with the other attorney to guarantee a successful collaborative outcome for the parties. This is the experience attorneys re having in the trainings I have been doing in San Francisco, Marin, Sacramento, Sonoma, Santa Cruz, and Cincinnati, just to name a few.
What is interesting is the paradigm for training and education that is emerging from the experiences of the various groups that have been successful in organizing a Collaborative Family Law group and particularly in groups like the Collaborative section of the Sonoma County Bar Association, a public group, and the Collaborative Law Center group in Cincinnati, a private association. Each of these groups has discovered the fact that making the intellectual commitment to the collaborative approach and delivering on the promise to the clients is significantly more difficult and challenging than most of the members imagined. As the various groups have embraced the training experiences it quickly becomes clear to everyone that being a representing attorney in a case where both counsel are "cooperative" or even "collaborative" in style, is altogether different from contacting with the clients for a Collaborative Family Law process and successfully delivering for the clients on its promise of a full and rich settlement without resort to any of the court-related procedures.
What this has led to in the requests for trainings and workshop programs, is a series of one-day trainings, over a period of months, that are linked in a way that develops the necessary shared foundation for all participants of the group and which builds on that foundation by adding greater and more advanced tools and techniques as the group grows in its skill level and experience.
The trainings begin with a fundamental conceptual approach and move quickly to the more practical portions of a family law case which includes the identification of topic-specific subject matter such as: handling crisis-type issues at the first four-way meeting; developing models for information gathering and document exchange (discovery in the traditional mode); structuring the introduction of a shared sense of dialogue and observation about what is appropriate and not appropriate.
Debriefing, "sitting in": Maybe you have a probationary member who hasn’t done the training yet but has a case going with another member of the group. Maybe the "trained" member of the group comes out of a four way meeting thinking: "where the hell was that coming from?" Have an organizational mechanism so that it appears to be a neutral, positive act for any person to ask another member of the group to facilitate discussion between the two lawyers to debrief what happened in that meeting. This person would be a neutral third party who is not necessarily criticizing, but is trying to help the lawyers reframe the process, to use what didn’t work as a teaching vehicle. Then have the mentor show up at the next four way meeting to observe. This can easily be explained to clients, because there would be no cost to them for this. The observer could be at the table, introduced, and simply observe and debrief the lawyers after the meeting.
Help the barracuda: Maybe you have someone who joins the group and is walking around with a big question mark on his back because no one thinks he’s going to fit. I think you have to assume that a person’s choice to join a group is a mark of good faith, and take it upon yourself to show that person what it means. A barracuda may really want to try and change her way of doing things, and maybe she can be helped to do it.
Throw the bum out: You’re going to find out quickly if someone has signed on as a marketing tool rather than a commitment, and each group - public or private - has to decide how to set up screening and the requirements of membership to deal with rolling someone out. Some will self-select by not attending the requisite meetings, etc. However, there will be faithful members who are hopeless and who can’t change, and if this is happening consistently, a mechanism must spring into place. Just like you can’t just fire someone without cause, you just can’t kick someone out of your group. The group must carefully define what would constitute good cause for being asked not to participate any longer. It doesn’t have to be a kangaroo court.
What are the fears that clients typically face and how do you deal with that?
When clients come into your office, they’re having to address what they are going to do procedurally and they are usually awash with fear. You can categorize what I find to be the three main stages of fear in a way that makes sense to them, and walk them through it: Fear of the Unknown: What is she doing? What is he not doing that needs to be done? The first fear that surfaces immediately is the fear of the unknown. They fear the unknown actions of the other party. These fears can be addressed right away by an immediate four way meeting. The first thing on the agenda is to express a commitment that each person will act in concert with the other person’s best interests, a commitment that neither will act against the other person’s interests either directly or indirectly. What you then have is not only a foundation for starting a safe process; you have also effected something more meaningful than ATROS because the parties have actually created their own temporary agreements. The second is to build a trust in the process.
Process Fear: What's going to happen and how are we going to get through this divorce process? You can create process trust even where there is fundamental relationship distrust. Usually a client will say "I don’t trust him any further than I can throw him after what he’s done to me." My conversation with that client might go something like this:
"Let’s define trust. Trust is at its core is promises made promises kept. All we are trying to do is develop process trust. Not relationship trust. Things people say they’ll do in our meetings they do. This can be a significant first step for you. It can open the door to the best possible settlement you can get. Are you willing to take chance?
"I know that the attorney that represents him is part of our group. I know that his attorney will screen your husband for certain conduct. Does that mean that he won’t pull the wool over his attorneys eyes? Maybe not. But if our fear that he won’t act honorably causes you to choose to go into litigation, then you can all but be assured that he will act in his own interests alone, if not dishonorably. If that’s practically guaranteed, why not take the chance that we can build trust in a collaborative situation? You have everything to gain and nothing to lose.
"Would you feel more comfortable if you had control over what was going to happen? Would you like to feel you have control over the costs and would you like to know that you have control over what you agree to and what you are not going to agree to? This process gives you those guarantees. The adjudicatory process gives you none of these. Yes, at the last minute the parties are thrown together to settle, but this doesn’t look like anything a setting that will maximize outcomes.
" I can’t get you any more in litigation than I can get you in collaboration. If we go into a litigation model we are, first of all, abandoning interest-based negotiation and are now working on the basis of claims and denials. Each person claims territory and each person denies territory to the other. The law will award one side for being right. If you are looking for protection from the law, let me tell you that the adjudicatory process at its core is not about law...it’s about a judge on a given day being told two different versions of the same story and that judge making a ruling just to stop the conflict. I know that process and I know it inside and out. In a litigation approach I end up getting for you whatever I can and it never is about trust. You won’t trust him anymore then than maybe you do now. But litigation won’t get you a greater outcome. Just because you don’t trust him doesn’t mean you couldn’t negotiate with him. Open your mind to the possibility."
Outcome Fear: How’s it going to all end? The information-gathering and options-development stages may take 3 sessions - or may take 10 sessions—until everyone has seen everything they need to know. It’s incredibly pragmatic and the fears tend to vanish. Tell your client "It will end by making an agreement that you find acceptable. You can measure that before you commit to it. You don’t have to agree on the settlement until you see it." The fundamental difference between outcomes that flow from a competitive or adjudicatory approach and an interest-based approach is that the ultimate marital estate is enormously diminished. Whereas the estate can be significantly enhanced by parties who are trading with each other because they’ve built some trust about the process.
Explain that there is a preparation phase and a negotiation phase. It is important for your client to understand that in a preparation phase he or she wouldn’t be expected to make any agreements. In this phase, there is a joint commitment to develop all of the facts in order to evince all possible options. Anything anyone wants to see, he or she gets to see. If one party had all the records, she would see it as her role and responsibility to get all of the information to the other party. The more both sides know the easier it is to create a "bigger" outcome. The development of multiple options gives rise to meaningful choices, creating a domestic flea market if you will. While we’re doing that, each lawyer is starting to get to know the other client and in the process, finding out what the client is interested in. What he or she is trying to accomplish.
The Collaborative model flows from interest-based negotiations...it’s not about what they are trying to negotiate for, but what are their interests? The parties assume that there is a "pie" of fixed dimensions and whoever gets more than half theoretically wins. That’s a zero sum game. The goal is to make the pie bigger so that everybody gets more.
Positions are non negotiable. For example, if John says I don’t agree to anything but "50-50" custody, you have his position right there. The counter to that remark might be "how about 40-60?" which of course would not be acceptable. In an interest-based approach I would say to him "Tell me something about what’s parenting means to you and what it is you’d like to get out of your parenting role while your raising your child with Mary. " I find out that he is saying I just don’t want to be a Disneyland dad; I want to do homework. We start finding ways to open that up. Giving him assurance that he will be participating. Coming to the birthday party. We find out that he really doesn’t want 50-50 custody, he just wants to be involved.
In a collaborative process, understanding that the clients are responsible for the outcome requires an enormous shift in the mind set of the attorney. The failure to recognize the client’s responsibility, the failure to help the client understand this responsibility and the failure to assist the client in taking control of this responsibility is guaranteed to make any attempt at a collaborative solution a failed exercise. The changing role of the attorney in the collaborative family law model requires a re-tooling for most lawyers. This is our biggest challenge and our greatest promise.