Adversarial v Wholehearted lawyering

by Jacqui Brauman

Adversarial v Wholehearted lawyering

by Jacqui Brauman

by Jacqui Brauman

It’s a traditional adversarial approach versus a new thinking, wholehearted, or true conflict resolution approach.

Now with your traditional approach, this is where most lawyers reside because we have “grown up,” so to speak, in a more traditional pathway. We’ve been taught how it’s done by older people who have always done it this way. And we’ve never given it a second thought about how we’re actually managing disputes. 

It’s just, well, the framework that traditional lawyers work within. And even if we don’t like it and we don’t think it gets good outcomes, this is the framework that we’ve got and so we use it.

I don’t think the traditional approach serves well. It certainly serves some situations. 

But if that’s not the pathway that you want, then you, as the consumer, need to be conscious of that and look for alternatives. 

Alternatives are complete alternative pathways to resolution altogether; in terms of mediations, collaborative practice, arbitrations, conciliation. 

So all these other pathways are separate from litigation and you can resolve your dispute that way.

But the other thing to note, is that a lawyer’s not there to delve into what’s causing the conflict or the underlying emotional situation. They’re not qualified to handle that. So you do need to have the relevant support around you. 

This is why finding a lawyer who could have a more wholehearted or holistic approach can serve you better because they will pull in the resources that you need, like a collaborative team or a smaller version of that with at least a dispute coach. 

If you have a psychologist to support you, and a financial advisor actually assessing what the different outcomes would be like for you, you will be much better off.

A lawyer’s advice has its limits to the black letter of the law. Not what you want or what suits your situation. You need to tell the lawyer that. And then the lawyer needs to work within the scope that you have provided, not the other way around. 

So a lawyer who has a more holistic approach should be giving you multiple options, should be mapping those options out, and giving you costing for each of those options. They shouldn’t just be leading you by the nose down a particular pathway. 

If you do have a more adversarial lawyer, you can say, “Well, hold on a sec. At this point in time, what are my different options? What are my alternatives at this point? And what do these different options cost me?”

Because even if you have started litigation, at any point, you can settle your litigation. At any point, you can engage in mediation or collaborative practice, and settle it. You do not have to go all the way through a court-ordered approach. 

A court, at some point, usually orders a mediation as well, but that’s usually a late stage mediation. There’s quite a lot of damage usually done by that point. So be careful with that sort of approach.

So having an earlier mediation as possible, I highly recommend. 

I also recommend if you do a mediation, not to have your lawyer there. 

Your lawyer is a separate service to provide you with advice about making sure that your obligations and ensure you are protected. 

But in a mediation, it’s a confidential process where you need to be able to say the things you need to say. Whereas a lawyer can get in the way and stop you from doing that unnecessarily.

You need to actually get some of the things off your chest and explore the issues directly. 

A lot of lawyers don’t like conflict at all. And so the process of litigation is actually a very arms-length sort of process. The lawyer doesn’t usually talk to anyone. They do everything via correspondence, and lengthy correspondence and horrible affidavits that draw out all this emotional angst. 

It often doesn’t narrow the issues at all.

Some litigation lawyers are good at narrowing the issues without escalating other conflict areas. But they’re rare. Most lawyers haven’t even thought about it, and it’s not really any fault of their own. They haven’t been exposed to anyone that talks about this stuff or any training along these lines, because this is fairly new sort of stuff. 

So finding someone holistic, someone that you can talk to, someone that you can slow the process down with and look at all the options – all these things are going to only help you have a better experience.

So finding the right lawyer in the first place is critical, and you can go back and have a look at some of my videos about how to do that. 

But also, if you have started the process with a lawyer that you’re not particularly happy with, you can change at any time. You are the consumer here. Which kind of lawyer do you want?

Legally Wise Women

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