Get Your Collaborative Words Right

By Joryn

We talk about “impasse” in the collaborative process, but that word carries a negative connotation, doesn’t it? And it’s not really our word, is it? Isn’t that something of a negative concept we adopted from the mediation process, from mediation language? Which is fine for mediation; mediation is an event that is scheduled, the mediator and the parties (and sometimes their lawyers) show up, work sometimes for many hours or even days at a time, and, at the end of the day, the matter either ends in an agreement or terminates with an impasse. Everyone leaves and the mediator, most of the time, never sees the parties again.

But how often do we have to explain to clients that collaborative practice is different from mediation? That it’s a process, not an event. That, in collaboration, they have a team of neutrals and counselors working with them, not a single mediator. That we dive deep into their goals and interests. That we work with them over months to address not just the financial and the legal issues, but also the emotional concerns that a divorce implicates.

So why do we use the same negative words to describe what is likely a very different outcome?

We talk about our collaborative matter “failing” when a client “opts out” and goes to court for relief, instead. But that’s a negative way of looking at it, isn’t it? Life is not a pass/fail course, and neither is the collaborative process. Words matter, and we need the right words, positive language that recognizes what we and our clients have achieved, rather than focusing on what we or they may not have achieved.

Reframing Collaborative Language

Can’t we reframe our perspective from “we failed” or “we impassed” to, at worst, “we didn’t achieve total resolution”? This not only puts a more positive spin on what took place, but it also frames it up more correctly. It compels our listener then to ask, “What did you and your clients accomplish?” Sometimes the clients will have agreed upon a parenting plan. Perhaps they adopted a schedule identifying and distributing the marital assets and debts. Maybe they gathered good financial information that can be taken forward into the next phase of their divorce. In some cases, they may have learned better communication skills or some brainstorming strategies that will serve them well in their new lives, post-divorce. Maybe they worked through some emotional steps, enabling them to move forward.

This does not sound like “failure” to me; in fact, this is a horse of a different color, success of a different type.

By reframing our language, we encourage our collaborative clients to use more appropriate and optimistic words going forward. Every collaborative process is a learning experience for every participant. One of the benefits of the process is that it teaches more effective communication skills. We all learn from our experiences, and even a collaborative process that ends in impasse should be a constructive experience in which participants learn how to communicate in a more positive way with one another.

Phrases Set the Tenor of Negotiations

Negative language forces the listener to guess what you want them to do or not to do, while a positive speaker’s intent is clearer. Negative language can also wear on a participant’s mental state, which may already be rendered fragile during a divorce process. It sounds a note of blame and often tells the recipient what cannot be done instead of what the speaker would like to be done.

It is human nature to feel friendlier towards someone who is kind to you, and who is upbeat and optimistic, rather than towards someone who makes you feel threatened or belittled. Your phrases set the tenor of negotiations, and positive statements are more persuasive than negative ones.

I have always gifted our collaborative clients (both my client and his or her spouse) with crystal lotuses and also certificates to celebrate and recognize the successful resolutions of their divorces. From now on, I will celebrate with all team members whatever our clients did accomplish in the collaborative process, regardless of whether they achieved total resolution.

Our words make an impact; choose yours carefully. It could mean the difference between a positive and negative divorce experience both for you and for your client(s).

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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