Reframing Advocacy in Collaborative Practice

Abstract

Collaborative practice is often framed as a better way to resolve a family law dispute, as something different than litigation; the idea is that settlement advocacy is better for families. In this short paper, I examine the concept of settlement advocacy, the hallmark of advocacy in collaborative practice. Settlement advocacy creates tension with our traditional understanding of the lawyer’s role in two primary ways: through the consideration of third party interests (meaning children), and when a lawyer engages in reality checking. I argue that collaborative lawyering ought to be reframed as expert negotiation. Focusing on negotiation skills respects the lawyer as a resolute advocate and acknowledges that what she is doing is different than litigation, but it emphasizes the process instead of framing collaborative lawyering as an antithesis to “bad” lawyering.