First Four Way Meeting: Do's and Don't's
By Jennifer Jackson, JD (2001, Collaborative Review, Vol. 3, Issue 1)
Jennifer Jackson, founding mother of the new San Francisco Collaborative Law group, board member of IACP, and co-editor of the Collaborative Review, offers in this article principles and tips from leading trainers, writers and commentators about how to launch a collaborative law representation effectively through well-thought out first fourway meetings. The "dos" and "don’ts" are worth heeding: they’ve emerged from experience with representing hundreds of collaborative clients and training thousands of collaborative lawyers. We offer them to you because they work.
Don't: Go unprepared into that first four way meeting
You must prepare your client, your collaborative counterpart, and the environment. Enlisting the aid of a coach for your clients before the first four way meeting can be enormously helpful in developing necessary communication skills: to learn how to talk to each other, how to listen to each other, and what ‘understanding’ really means. Your client needs to know what collaborative law is and what your role is going to be. She needs to know that as a skilled collaborative professional, you will be modeling behavior for her and for everyone else at the table, and that the fact that you treat her spouse with respect and will be listening carefully to identify his interests as well as hers does not compromise your effective representation. She must be prepared to listen for her spouse’s interests as well. Your client needs to know what to expect at the first four way meeting, and then you must be prepared to deliver it. To that end, you and her spouse’s attorney, your collaborative counterpart, must be prepared as well.
You and your collaborative counterpart must carefully orchestrate the first four way meeting, which includes preparing a written agenda and giving speaking assignments to each lawyer. If one or the other of the attorneys appears to be running the show, the environment will not feel safe to the other attorney’s client. You should discuss "hot buttons" and "hot topics" that should be avoided at the first meeting, and secure a mutual commitment to sticking to the agenda that the two of you prepare for the meeting.
Build A Safe Container
Your clients are anxious and fearful: they fear the unknown, the other party’s behavior, the process, and the outcome. They fear that their attorneys won’t be able to "guide" them through the process without compromising their interests. They fear that the other party can’t be trusted to collaborate in good faith. Chip Rose observes that " The more fearful and anxious the parties are about what they are going through, the more they tend to shut down. The more they shut down, the more clients tend to rely on the projected legal outcomes as their attorneys predict them and the less they are willing to entertain any variations from the adversarial model out of fear an suspicion of the other side’s motives." It is your job, then, to work with your collaborative counterpart to create a sense of trust for your clients in the process (if not in each other), and to build a safe environment - which is referred to by Pauline Tesler and Larry Wilson as the "container".
Do: Create a safe environment
.....The guests are met, the feast is set: May’st hear the merry din. Samuel Taylor Coleridge, The Rime of the Ancient Mariner (1798) pt. I, s. 1.
An attractive, comfortable environment is the first key to building a "safe container". The environment that will work best for the parties is more important than convenience to counsel. The physical space should foster comfort, cooperation and trust. Pauline Tesler and Larry Wilson believe in "kitchen table" collaborative negotiation where they recreate a similar environment to that which produced successful negotiation during the marriage. This usually involves a table rather than a desk, pleasant surroundings, informality and food. The attorneys can even set up a friendly rivalry as to who can provide the best "feast".
Get meaningfully involved with the other client immediately. As Chip Rose observes "the simple fact that the parties and their attorneys have made a commitment to successfully negotiate and not litigate does not necessarily make the wife’s attorney any less intimidating to the husband, and vice versa". Introduce yourself to the other client, "beginning the process of establishing rapport across the psychological battle lines." Talk to the other client. You can get a sense of each other that litigation could never have achieved, reinforcing the notion that you are working as part of a team. Chip suggests that each attorney show genuine concern and interest for the other party’s interests, feelings and issues, using the introductory portion of the first four-way meeting to engage in a "mini interview" of the other party.
Do: Commit, and publicly
In order to create that safe container for the clients, each attorney must make his or her commitment to the process clear, as well as his or her own client’s ‘buy in’. Pauline Tesler recommends that the attorneys make the following statements during the first four way meeting:
Each lawyer must expressly make ethical commitments to the other lawyer as well as to each client that only the highest level good faith negotiating will take place. Make it clear that you will not allow your client to "hide the ball", that you will not take advantage of mistakes or use the collaborative process for delay or other advantage, that you have agreed to withdraw if that occurs, and that you stake your reputation on that commitment.
Each lawyer must promise that all negotiations will be interest based, not positional bargaining. This means that "we are not hired guns for a position but bring only good faith needs and interests to the table". They both must promise that they won't use even the threat of court as a bargaining tool, and that they will work to meet all legitimate needs of both parties as best they can.
The attorneys should jointly confirm that "We will zealously represent your long term best interests in this divorce, which is not the same as getting you the biggest piece of the pie. Compromise is the name of the game. Even generosity, which is not required, but can pay enormous dividends."
Make it clear to the other party and his attorney that you have discussed these commitments with your client and that she has instructed and authorized you to make these commitments. This is a powerful statement for the other party to hear, and goes a long way toward creating trust in the process.
Do: Compel the clients to commit, and publicly
In order to create that safe container, the clients also need to hear openly that the other party is also committed to the process. Larry and Pauline talk about forming an early alliance with the client’s highest and most enlightened self, which they see as a "durable power of attorney" to take instructions from the client only in his highest functioning state. The clients must acknowledge to one another that this is so. This is in contrast to conventional representation, in which communications from clients come almost exclusively from the lowest functioning self of the client, which Pauline and Larry refer to as the "shadow" self. The clients must acknowledge that even though all participants expect the "shadow" to emerge from time to time, everyone has to make space for it and deal with it, but neither attorney will take instructions from his or her client in that state.
Each client must commit to the concept that they are members of a team that is considering the needs of both parties and that a quality result is best described as a "win-win" rather than a victory for one party or the other.
If you are uncomfortable with the concept of the "shadow" and "high intentioned" selves, one way to accomplish the public commitment of the clients to one another and to the process is an open reading of -and commitment to - each of the principles and guidelines of the Collaborative Law Process.
Don’t: allow your clients to force you to "Get to the Point" right away
Clients are worried about a lot of things, not the least of which is wasting time and money. It is very difficult for them to understand the importance of following strict protocol, much less actually listen to it for two hours. While the attractive thing about Collaborative Law is that the clients are the architects of the settlement, the lawyers are still the specialists in guided negotiations and conflict management. As with litigation, the clients are guardians of the substance, while the lawyers are the guardians of the procedure. So guard it.
Every failed collaborative case that I’ve seen has had one thing in common: the attorneys made the mistake of allowing the clients to skip over procedure and rush into negotiations during the first four way meeting. We must zealously adhere to the proven principles of the Collaborative Law model and somehow convince our clients that it is crucial to the success of the collaboration. We must focus on procedure, and procedure only, during the first four way meeting.
Pauline suggests a lead-in like this: " The Collaborative Law commitments are serious. We need to go over them together. We will spend considerable time today on procedure. Bear with us. Experience tells us that it bears fruit in terms of solidifying our commitment to work wholeheartedly this model. In the end, this is very cost effective; we can promise this is the least expensive process we know of for working out divorce related issues if everyone fully commits to doing it as well as they possibly can.
Clients sometimes get frustrated if we go through a slow period. Remember that it is extremely difficult, though not impossible, to achieve these kinds of quality results in a conventional representation process and you need to remember this in moments when the process may for a time move less slowly or efficiently than you might envision. It won't be quicker in court. It won't be less frustrating in court. It won't be more efficient. It won't be cheaper. It might even be a good idea to sit in at local family law department to understand fully why that is true-don't just take our word for it. "
Do: Describe and compare the alternatives
Even though you have already discussed all of this with your client during the preparation stage, it is important to discuss the Collaborative Law process en banc, so that both clients are hearing the same thing at the same time. Pauline suggests that one of the lawyers lead with "This is as different as can be imagined from how a usual divorce proceeds. Both attorneys have the usual ethical obligations to represent each of you as skillfully as we can, but there are some big differences from ‘business as usual’. " Briefly compare collaboration with mediation and then focus on the difference between collaborative law and litigation-driven settlements, stressing, as Chip suggests, that collaborative law provides client control of the process and the outcome, generates the widest range of settlement in that it is interest based rather than claim-denial based, allows both parties to speak and be heard, focuses on the process of negotiation as well as the outcomes of negotiation, creates a safe environment in which to communicate, and acknowledges that maximizing each party’s satisfaction is key to success.
Do: Describe each participant’s role in the process
Use metaphors to describe the roles the attorneys and clients will play in the collaborative process. Go over the ground rules with both clients.
Don't: Ignore the role the law may play
Clients routinely focus on "what my rights are", which they naturally and quite rightly assume are described by the law. Assure them that their attorneys will advise each of them about the law, and about what might happen if a judge were to decide the case, which is essential for them to know in order for them to make intelligent decisions. Then emphasize that they are the architects of their own settlement, and that they will be discussing other considerations besides the predictive value of the law. Remind them that collaborative law empowers them to make their own agreement, which can differ a little, a lot, or not at all, from what a judge might do. Consider describing a judge’s powers as far narrower than the parties’ to devise a result that fits their unique needs.
Do: Conduct yourself as a model for the clients’ behavior
The importance of modeling appropriate behavior is to support the process rather than the client. Clients will be taking their cues from their respective attorneys as to how to conduct themselves. Don’t interrupt. Don’t reinforce a negative statement of your client or the other client; reframe it. Be respectful of your collaborative colleague. Be patient. Let your commitment to - and faith in - the process show. Give permission to the other party and the other attorney to tell you if you have violated any of those ground rules.
Do: Get down to business: review and sign the documents
My collaborative colleagues and I always walk our clients through the Collaborative Documents paragraph by paragraph and then confirm that each party "buys in" to each principle, guideline and provision of the documents. As described above, this can get very tedious, but is absolutely necessary to the integrity of the process, and also to each party’s comfort level with the other party’s commitment.
The signing "ceremony" is also useful in launching discussions about open, informal and complete discovery, parity of attorney’s fees and costs and how they will be paid, the roles of the attorneys, neutral experts and how they will be paid, how correspondence between the attorneys, if any, will be handled, the seriousness of violating the principles of Collaborative Law and the termination of the process.
Don't: Allow the clients to compromise the process by substantially modifying the documents
I have the collaborative documents on a laptop or nearby computer so that certain non-essential provisions can be modified if the clients choose to do so. In a recent meeting of the San Francisco Collaborative Law Group, the presiding family law judge Donna Hitchens (see Donna J. Hitchens: Family Law Judge For the Twenty-First Century". Vol. 2, Issue 2, p. 1) made it clear that for her, a case is either Collaborative Law or it is not by telling the members in no uncertain terms that she would not sign off on any "doctored" Collaborative Law Stipulation.
Judge Hitchens notwithstanding, there are a few decisions that clients need to make when crafting their own stipulation: Can they preserve the right to access to expensive neutral reports in the event of litigation by simply deeming them non-binding? Should the attorneys’ hourly rates/retainers be the same? Should there be a "standby" neutral private judge in case of impasse? Are they going to use the Collaborative Contract or the Collaborative Stipulation?
Don't: Call your case collaborative law unless the documents are signed
If the clients do not sign the Collaborative Contract or Stipulation, it is not a Collaborative Law Case. It is a "negotiated" case, or a "cooperative" case, or a "non-litigated" case, but it is not Collaborative Law without the stipulation or contract. This is "non-negotiable" for a number of reasons. Great care has gone into the design of the model, and part of the model is the commitment that comes with a signed contract. Collaborative Law is generating a lot of publicity, and the public has a right to expect all of the protections that only a signed commitment can provide. If we expect the model to succeed, we all need to abide by the rules. Do not call your case collaborative and do not allow your clients to call your case Collaborative Law or Collaborative Divorce if you do not have a signed contract. [Please see "A Modest Proposal" by Chip Rose, Vol. 2, Issue 1, p. 10.]
Do: Identify urgent issues
In spite of our best intentions, there are occasionally pressing issues that cannot be avoided and must be addressed immediately. It is important to confirm that the children’s needs are being met. You should discuss the logistics of creating a parenting plan, decide if the issue is to be mediated, and how that process will work.
Do: Protect your client
Be sure that your client is not compromised by his or her participation in the Collaborative Law process. Sign agreements at the first meeting preserving retroactivity of support and so forth, so that no one’s rights are prejudiced by his or her commitment to avoid court proceedings. Be sure to discuss automatic or other restraining orders protecting community assets, and be sure that each client is well aware of his or her responsibility to preserve assets during the separation period.
Do: Assign homework
Normally, the second meeting is a "walk around the estate" to determine what the assets and debts are, and what the issues in the particular case will be. Therefore the first meeting is the time to assign homework to the clients in terms of gathering documents, drafting disclosure declarations and drafting lists of priorities which will form the basis of the information gathering phase of the Collaborative process.
Do: Allow time for questions
This is, after all, their meeting, their case, and their lives.
Don’t: Let your collaborative law case "Fall Between the Cracks"
These are the easiest cases to let slide, as your "squeaky wheel" cases readily monopolize your time. Don’t let that happen. One way to keep the ball rolling is to insist that no one leave a meeting until at least two future meetings are scheduled. Assign the task of memorializing the meeting to one of the lawyers, who can distribute a memo outlining what was accomplished at the meeting, as well as all of the tasks for the next meeting and who is to do them. Be sure that the memorandum is only that; memos should never summarize or rationalize any person’s "position", cast blame, or be inflammatory in any way. Agree on an agenda for next meeting so that everyone knows what to expect.
Don’t: Underestimate the power of ceremony
Pauline likes to think of Collaborative Professionals as priests who preside over the "closing ceremony" of marriage. As such, we are charged with an almost sacred trust, to add dignity and decorum to the process.
Do: Pat yourself on the back
Well done, counsel.