Getting your client's partner to collaborate.

Collaborative law and lawyers face an interesting challenge. On the whole we are a passionate bunch with a real belief in the potential that a different approach to dispute resolution can offer.

A by product of that passion and belief is that we would like to see more clients take up collaborative solutions. So why don't they?

My experience, and it is one that is shared by many, is that when we first meet with a client and explain what the collaborative process means that they are ready to sign up. The difficulty arises when we try to get the other party to engage.

The proposal is resisted for any number of reasons and we spend a great deal of time worrying about that.

I wonder to what extent the proposal is rejected just because it was us who suggested it rather than them.

A tricky thing happens in family disputes, you see, and it is this. Even the most reasonable proposal risks being rejected for the simple reason that the other side has proposed it. There is probably an interesting correlation in that the more reasonable a proposal is, the more it is to be suspected by the parties concerned. "He must be up to something" or "There must be something in this for them."

The problem stems possibly from the disappointment and hurt that follows in the aftermath of a relationship that has ended. The parties will very often feel the most profound betrayal or let down from the one person that they had invested the most in. As a result of that perception, anything that they now propose is to be treated as suspicious. No doubt, it is a defensive approach.

Compound that with the trauma of receiving that first letter from your partner's solicitor, and all that such an event confirms and stands for and perhaps it is not surprising that we see the suggestion viewed with skepticism.

So how can we overcome that and get greater take up? Perhaps the way, as it so often is, is to change ourselves rather than them.

So instead of our initial letters to the estranged partners recommending this process or that, perhaps we should be engaging with them in a different way. Would a similar approach to that set out below in the "An alternative initial letter to the client's partner." work?

What is the best way to get any disputing parties to agree and buy into a proposed solution? Make sure they are part of the solution design process.

An alternative initial letter to the client's partner.

I address the difficulty in getting client's partners to buy into the collaborative law process above. It occurred to me that one of the problems is that by presenting this remedy as a solution to the partner that we are failing to include them in the solution design process.

We are also missing an opportunity to consider more bespoke dispute resolution processes.

Within industry and commerce it is quite normal to establish or design systems to resolve disputes but that is something that we tend not to do in our family law sphere. Too often we simply offer an array of off-the-peg processes.

We fail to have what is called a "Meta-conversation" - that is a dialogue about the dialogue itself. Essentially, "How are we going to talk about what we have to talk about?"

As I state within the draft letter below, there is an opportunity to demonstrate to the client's partner that we are not being dictatorial in laying down the process to be adopted. We can use this first letter both as a hook and a demonstration that we are interested in their opinion and what they feel is important just as we are interested in our client's own opinions. After all, it is only by understanding both partners that we can then start to explore solutions that will fit.

I have set out below an initial crack at an alternative "First letter".

It isn't supposed to be definitive, but a stimulus for discussion. I'd be interested in knowing what you think.


Dear *******

We have been approached by ****** with regards to the situation within your marriage/relationship. ******* has been keen to ensure that we understand that it is a priority for him/her to be able to work with you through the issues that will need to be addressed over the coming months.

One of the initial concerns will be just how *********, yourself and your respective advisers can best communicate with each other?

We recognise that solicitors correspondence can often be seen as being antagonistic, and it is certainly an expensive and slow process.

A series of round table meetings might help to minimise the risk of mis-understandings and save time. If you both felt this was an attractive option then we could go on to consider how such meetings would be facilitated. For example, would we need there to be agreed levels of conduct within such meetings? How would concerns that you or ********* have be accomodated and resolved? Perhaps the Collaborative law process(see www.collaborativefamilylawyers.co.uk) offers a suitable format?

Perhaps it would help if an arbitrator, therapist or ombudsman, were appointed quite independent of either of you? Could such a person help in offering a different and objective interpretation of any element of dispute, communication or process that causes difficulty, or stuckness, as we try to move forwards? What authority would they have to make recommendations to overcome any offence caused or unblock the negotiations?

Are there immediate concerns that either of you need to be addressed, such as legal funding, joint outgoings and the like?

These are just a few suggestions to illustrate just how flexible we can all be in creating a process to enable us all to discuss matters safely and candidly. ******** does want to work with you and we have an immediate opportunity here to start building that co-operation as we determine, together, how we are best going to address and resolve matters.

We recommend that you discuss this letter with your own solicitor. If you have not yet instructed a solicitor then we recommend that you instruct a one who is affiliated, or even better, recognised as an expert by Resolution, the family solicitors group. Their website can be found at www.resolution.org.uk where you will find a directory of members and experts alike. We have enclosed an extra copy of this letter for you to give to your solicitor ahead of your meeting.

We hope to hear from you or your instructed solicitor over the course of the next 14 days.

Yours faithfully..."