Dealing With Dilemmas In Collaborative Practice
By Bill Eddy, LCSW, Esq.
© 2008 High Conflict Institute
Collaborative practice is riddled with dilemmas. One of the common ones is deciding whether we should take this case. “Is it appropriate for the collaborative approach? Will we really be able to help them?”
Another common dilemma: “One of the parties is really dragging their feet, while the other party wants this over yesterday. Should we pressure the slow party to move faster or the fast party to move slower? Is it ethical for us to keep this case going and spending the parties’ money, when there isn't any progress?”
Dilemmas like these trigger a lot of tension within the collaborative team, and a lot of frustration for the parties with the collaborative model. I would like to suggest that these dilemmas are common, healthy, not a crisis, and at the core of the potential of the collaborative approach.
A Dilemma for the Parties
I believe that we need to help teach the parties how to resolve dilemmas, by respecting both sides of an issue as well as all of its shades of gray – and considering the many different ways it could be resolved in this particular case. Some dilemmas will be resolved one way, and some dilemmas will be resolved another. Part of the beauty of a dilemma is that they are a creative, learning and adaptive process. As human beings we have faced dilemmas throughout history and the way we have resolved them has moved us forward.
The problem of dilemmas is that we think there's one right answer. We struggle to find that right answer, and we argue heatedly with each other over who has that right answer. Instead, we need to accept the dilemma as a healthy problem to solve. And we need to teach our clients – especially our high conflict clients – that dilemmas are not crises, but problems to solve. We also need to teach ourselves to embrace the collaborative approach when facing a dilemma as a team, rather than splitting and competing with each other over the right answer.
High Conflict Cases
For the past two years I have been giving seminars around the United States and Canada to collaborative professionals, mediators, judges, and others on methods for managing high conflict clients. It has slowly come into focus for me that there are many familiar dilemmas that highly frustrate us as professionals. High Conflict clients in particular press us to resolve their dilemmas. But as professionals, we are not responsible to resolve these dilemmas. Therein lies the problem - and the solution. The solution in most (but not all) of these dilemmas is that they are another dilemma for the parties to resolve. Then, we should help them resolve it without taking responsibility for it ourselves. Our responsibility is to provide our expertise and knowledge to assist the parties in reaching a resolution.
Should we terminate this couple from the collaborative process? This is one of the most common questions I am asked in seminars about high conflict collaborative cases. I have heard of cases where the team has fired the clients. In other cases, the team is struggling with whether to fire the clients. I believe that this is another dilemma for the parties to resolve. As much as possible, we should try not to be the people who resolve their dilemmas. As we grow more experienced and comfortable with high conflict parties, I believe that we will resolve their disputes in the collaborative process. However, I believe that there will always be a few cases in which it is appropriate for us to terminate the collaborative process for ethical reasons, such as because there is a bully using the process inappropriately, or other reasons.
However, most of the high conflict cases I have heard about I believe could be managed by taking more time and repeatedly placing the dilemmas back on the shoulders of the parties to resolve – while providing our assistance and active support as they work on their dilemma.
The pressure to take ownership and control of the dilemma away from the clients is especially strong in high conflict cases. I have found that resisting this pressure is the key factor in resolving high conflict cases in mediation and in court, as well as in collaborative practice. The skill of resisting this pressure takes practice and consultation. High conflict clients often don’t realize that they have the skills to resolve their dilemmas, because their anxieties often overwhelm them. We need to learn to manage our own anxieties and patiently help them stay focused on using their own problem-solving skills, even though it often takes longer.
Example: Hiding Money
Is one of the parties hiding information, such as bank accounts, income, etc.? This is a dilemma for the parties to resolve. In some cases, they will resolve that they need to do discovery and my put the collaborative process on hold or drop out and litigate the issue. However, in other cases, when the burden of resolving this dilemma is placed on the parties, they may choose to educate each other more about their finances. This may slow down the process, but make a far superior resolution possible.
In yet other cases, the parties may resolve to move forward even though one party mistrusts the other party regarding their lack of financial information. That party may choose to move on with his or her life, rather than staying stuck with a spouse who maybe hiding $10,000 or $100,000. We shouldn’t judge the proper outcome of this dilemma, but rather educate the parties about their choices and the potential personal/legal/financial consequences of each choice. We should assist the parties in resolving it themselves. The collaborative model is ideal for the resolution of these dilemmas.
Informing the Parties
Our goal should be to inform the parties as much as possible using the expertise that we have in each of our professions. For example, the Lawyers should educate the parties about the legal options and issues, and costs involved in pursuing a matter, such as further discovery on the issue of hiding money. Financial Specialists could explain the procedures and methods for finding money and for hiding money so that it can’t be found. (I’m not suggesting that that’s a skill we want to teach, but rather acknowledging that many people are so good at hiding money that even $10,000 or $100,000 of discovery won’t find it).
The Coaches may educate the parties about the future benefit of various problematic parenting plans or other issues which could impact the children. Would it be better for the parties to go to court and litigate an issue, given the impact it may have on the children? The Child Specialist can help the parties address that issue, by explaining the range of options given the dilemmas that are presented. The goal should be: educating the parties and assisting them in facing and resolving their dilemmas, rather than resolving these dilemmas for them.
The Benefit of Coaches
The use of Coaches varies dramatically in different cities and among different practice groups. In San Diego, where I live, our practice group routinely uses the two-coach model as the standard for all cases. I think this is ideal especially in high conflict cases, as the Coaches can develop a 1-to-1 alliance with the individual client, while demonstrating collaboration with the other team members. High conflict clients in particular seem to need this special assistance and alliance.
In other places, such as Texas and Washington, the one coach model is primarily used. This has been generally sufficient in assisting reasonable parties in addressing their communication and decision making issues from a coaching perspective, and the parties are able to resolve their divorces. However, in high conflict cases, the one-coach model has generally been insufficient and many of these cases have been unable to reach a full settlement. In other areas, especially where collaborative is newly developing, there are many cases where no coaches are used. I repeatedly hear from those attempting this approach that their difficult cases may have been able to be resolved with the use of one or two coaches. Therefore, the trend to use coaches appears to be growing nationwide.
Of course, the use of coaches presents its own dilemma: “Should we use one coach or two coaches?” My preference, of course, is that there would be two coaches from the start of the case, so that if it is a high conflict case it can be well-managed to resolution. If it's not a high conflict case, then the two coaches may help expedite the process and save the cost of having two rather than one coach.
However, in areas where there is only the one-coach model, the question arises: What should we do if it becomes evident that it's a high conflict case and two coaches would be much better? If you start out with one coach and discover the need for two, how should you make that transition? Should the single coach become the coach for the party he or she has the best connection with? Should that coach drop out of the case and two new, neutral coaches come in, one for each party? I believe that this is “another dilemma for the parties to resolve.”
Dealing with the types of dilemmas described above and others will be the focus our work for years to come. The way the parties resolve these dilemmas with our assistance will inform us greatly about the strength of the collaborative process, and help us improve policies and procedures. They way we resolve these dilemmas will educate the parties and assist them in their own future problems. There is a great relief for clients when they learn that these are common dilemmas, rather than a sign of weakness or ignorance on their part. Especially in high conflict cases, the parties are so extremely defensive that our implication (subtle or not) that they are doing a bad job may itself sink the case. Instead, we need to normalize the issue of dilemmas and teach skills for resolving them. Good Luck!!
High Conflict Institute provides training and consultations regarding High Conflict People (HCPs) to individuals and professionals dealing with legal, workplace, educational, and healthcare disputes. Bill Eddy is the President of the High Conflict Institute and the author of “It’s All Your Fault!” He is an attorney, mediator, and therapist. Bill has presented seminars to attorneys, judges, mediators, ombudspersons, human resource professionals, employee assistance professionals, managers, and administrators in 25 states, several provinces in Canada, France, and Australia. For more information about High Conflict Institute, our seminars and consultations, or Bill Eddy and his books go to: www.HighConflictInstitute.com or call 619-221-9108.