By Selina-Jane Trigg
In most of my recent discussions with colleagues, the unsettled state of our world, both in our offices and much further afield, has come up. One colleague wondered whether it was attributable to the full moon. Most family lawyers will tell you the full moon seems to bring them an increased workload with more than a dash of crazy thrown in. With some, I pondered the impact of the subconscious effect of the pandemic on people’s actions (and reactions). With others, we ruminated on the power of trauma carried by future generations– that our past, as individuals and as a society, has a way of catching up on us unless adequately addressed and healed.
Whatever the cause (and, rather than being one, its likely a complex blend of many), its fair to say the world is an unsettled, tumultuous and, in places, divided and scary place to call our home. By tending to our own lives and legal practices in ways that foster understanding and peace, we can assist our clients to do likewise in their own nests. This has the potential to extend beyond us individually and beyond our individual client and their family. This is where Collaborative Practice’s potential superpower lies!
When I am asked by colleagues about Collaborative Practice, I often speak of the opportunities it gives its participants to effect cultural change around how we resolve conflict. A lofty ideal, perhaps, but I strongly believe that the next generation can be more peaceful and understanding than the last; that they can move through the world with greater resolution and problem-solving skills. That is, if we consciously teach them to be so. Family lawyers are well placed to positively influence the problem solving and peace creation templates that their clients’ children take into their adult lives.
We all know of “repeat litigators” – their file is barely closed, only for them to return to go another round in Family Court. One of the circumstances where this may occur is when a party perceives their individual needs or interests have gone unmet or even unheard and misunderstood in the prior round. Unless addressed, all future discourse between the parties circles around this. ‘Repeat litigation’ can be viewed as not simply confined to the parties to a dispute. It can also take the form of a longer term, repetitive, inter-generational cycle of conflict resolution that occurs when children take into adulthood the template, or lack of one, for conflict resolution that they learned from childhood experiences and from their parents.
I am no psychologist but if children are exposed to high parental conflict and a template of adversarial, competitive, win-lose, right-wrong, punitive conflict management, my money is on this being the template that they themselves are likely to repeat as adults. This is the template they are likely to bring to the relationships they have and the community they live in. Unless a circuit breaker occurs. By proactively working to deescalate parental conflict and supporting parents to take on a constructive, collaborative template for working through disagreement and divisiveness, collaborative lawyers can be part of the circuit breaker.
As family lawyers, we can strive to adopt collaborative principles in our own lives and help empower our clients to create or strengthen a familial culture that prizes: genuine curiosity about, and openness to, other’s perspectives over the need for our own view to be right and others’ to be wrong; compassion and responsibility for one’s role in conflict (and the solution) over blame and shame; empowerment to create solutions together over abdication to a referee; approaching differences with transparency and trust rather than fear and suspicion; and listening to learn and resolve over listening to dominate and defeat.
This is by no means an easy feat. It can feel particularly futile when faced with a cultural bias towards competition and leaders who speak divisively and operate within institutions of power that are adversarial at their heart. (Did anyone see Parliament this week?!). For me, it can feel equally challenging when I find I have deteriorated into a parenting battle of wills with a 10 year old. Imagine how difficult it must feel to our clients who are in a high stakes negotiations where often trust, hopes, reputations and identities have been damaged or eviscerated. But if we don’t strive to effect change, we just get more of what we have.
By embracing and guiding positive communication, striving to respect and recognise different viewpoints, and creative problem solving, as Collaborative lawyers we can facilitate a positive shift in the conflict communication and coping strategies both for ourselves and our clients. If we can adopt these to enrich our parenting and the broader aspects of our lives, for our children to witness and learn from, just imagine the generation of peace creators and collaborative superpowers that they will be and that they will go on to raise.
Selina Trigg is a collaborative colleague from “across the ditch”, who has kindly agreed to us reproducing a blog from The Law Lighthouse Blogs. She is a trained mediator and member of the New Zealand Law Society Panel of Mediators, a trained collaborative practitioner and current Chair of the Collaborative Law Association of New Zealand. Selina strongly believes that Collaborative Practice and Mediation each offer families empowering and beneficial alternatives to litigation.