As a trailblazer in the practice of mediation and collaborative law, Rodney N. Johnson was interviewed by the “Pacific Sun” in 2004 about his philosophy and legal work.
By: Keith Thompson, ran in the 8/04/04 issue of the Pacific Sun.
Carol Inkellis, Copy Editor, 415-383-4500 x317
Rodney Johnson is the kind of lawyer who stands by his clients 100 percent–unless you’re a client who decides you want to fight it out in court. If you want a showdown in a courtroom, Rodney’s not your guy. But if you and the other party are willing to work toward a settlement based on mutual respect and genuine fairness, he might just be the lawyer for you. Johnson is one of a new breed of attorneys who practice what’s come to be known as collaborative law–a dispute resolution model whereby both parties retain separate, specially trained lawyers whose only job is to help clients settle out of court. The goal is to reach a resolution that both parties find fair and just, and to do so in a civilized and constructive manner, free of the posturing and hostility that often accompany legal disputes. If disputants and their lawyers can’t achieve such a resolution and choose to head to litigation gulch, both attorneys are obligated (by prior agreement) to withdraw from representation. Both parties must find two new adversarial lawyers. If this sounds like a serious incentive for both the parties and their lawyers to negotiate a peaceful resolution of the dispute, you’ve grasped the essence of collaborative law. And you’re in a position to understand why this new approach to legal problem solving is catching on so quickly.
Of course, out-of-court settlements are nothing new. Most lawsuits get resolved short of court–about 95 percent of the time, according to the American Bar Association. Even so, disputing parties typically settle after most of the acrimony and expense of litigation have taken place. “Litigation encourages attorneys to play chicken,” says Mill Valley collaborative attorney Pauline Tesler, a former litigator herself. “Both sides compete to make the strongest threat to nail the other side at trial. The tragic result is that both sides end up devoting 95 percent of their energy and expense to prepare for an event that happens less than 5 percent of the time.” Tesler notes that the only other professions with those percentages are emergency response teams and the military. “It simply doesn’t make sense to use the emergency room for your primary medical needs.” Johnson emphatically agrees. A graduate of Northwestern University Law School and the son of a Swedish Covenant minister, he turned to collaborative law after practicing mediation for many years, following a successful career as a family law litigator. Today Johnson offers both mediation and collaborative law, with an aim to “help separating spouses develop effective relationships, solve problems jointly, and prevent a court battle. “I spoke with Johnson at his San Rafael office, where he admits to sometimes playing guitar between clients. A musician and songwriter, he and his wife, Ginny Johnson, a marriage and family therapist, recently released their first CD of original “back porch” music, titled “Easy Man.”
Was there a single decisive experience for you as a litigator, a moment when you realized you didn’t want to go to court anymore?
Not so much a single moment as a growing realization that the litigation process oftentimes encourages the fight, rather than helping to heal and resolve the dispute. The end of a marriage can be painful enough. Often, the process of divorcing only adds to the anguish. I’ve been practicing law for 38 years and I have seen more than my share of couples dealing with each other as enemy combatants. You don’t resolve disputes by fighting; you resolve disputes by sitting down together and discussing solutions. About 25 years ago, it began to dawn on me that there had to be ways to get couples together right at the start, before they had spent a year or so in litigation and their children’s college fund on attorney’s fees, to put their cards on the table and work toward solutions, with mutual respect.” I wasn’t the only lawyer looking for alternatives. Far from it: A growing number of lawyers were recognizing the value of mediated settlements. Mediation seemed very promising. A neutral person helps the couple reach agreement, but does not give individual legal advice. Both parties have their own lawyers for independent legal advice during mediation. Sometimes the lawyers sit in on the mediation process and sometimes they remain outside the mediation process as consulting attorneys. I wanted to help couples take control of their lives versus having the lawyers and judges control the outcome, so I started offering mediation services in addition to my litigation practice. It was very exciting to help couples reach settlements that they found far more satisfying than what usually happens in courtrooms. But mediation doesn’t always work–sometimes couples still go to trial. I was giving a lot of thought to whether there might be another way to increase the likelihood of out-of-court settlement. Both personally and professionally, I was fast approaching the realization that I was ready to give up litigation altogether.
Sounds like a turning point?
My big shift came in the early 1990s, when I heard about collaborative law. An attorney friend in Santa Cruz called to invite me to a conference about alternative ways to help divorcing couples resolve their differences other than through mediation. That’s where I met Stu Webb, the founder of the collaborative process. Stu is a Minneapolis lawyer who had been exploring how to use attributes of good lawyering not often utilized in adversarial proceedings, devoting analysis and reasoning to solving problems, generating options, and creating a positive context for settlement. Stu’s moment of truth came when he decided that he would only take cases in which both clients and their lawyers agreed to not take part in any litigation and to work together to create solutions.” This changed the whole game. With litigation no longer an option, Stu found himself free to focus his time and effort solely on settlement, rather than posturing or preparing documents or themselves for court. When I returned to Marin, excited about another alternative process to offer clients, I met with two colleagues, M. Lee Hunt and Ellen Rothman. This was the beginning of the Collaborative Lawyers of Marin group. Some years ago, I decided not to accept any more litigation cases.
Suppose a couple works hard to achieve a settlement, and the process breaks down. Have they signed away their option to go to court?
No. They can withdraw from the collaborative process, but they cannot take their collaborative lawyers with them. They have to hire litigation counsel. An important element of the collaborative stipulation is that the collaborative lawyers cannot also be the litigation lawyers. This goes a long way to ensure that the lawyers are committed to negotiating settlements. This isn’t something that comes easily to most lawyers. We’re trained to be advocates for a particular position. It is hard for us to put down our swords and say,”Let’s be problem solvers rather than litigators.” Traditional litigation usually involves both sides using threats to get their way. “Here’s my offer. If you don’t agree, we’ll let the judge decide.
With litigation not on the table as an option, both parties focus on effectively communicating, gathering facts and discovering each other’s interests. Collaborative law requires cooperation. That’s a tall order for two people who have decided they can no longer, for whatever reason, live together. How do couples achieve this goal?
If the couple is not going to work towards solutions, or make an effort to cooperate with each other, then the collaborative process may not be for them. But oftentimes, the couple doesn’t know how to cooperate and that is the job of the attorneys to help them with their fears and to model how to work together to achieve solutions. Collaborative law works for people who have a conflict to resolve but who also recognize they have ongoing interests that are at least as important as the immediate conflict. In a divorce, the main ongoing interest should be the welfare of the children. If the couple has children, the family unit is going through a major restructuring process. They’re going to continue to be in a relationship together. It’s what kind of relationship–that’s the question. To me, that’s the best reason to mediate or collaborate–because then the focus is on how to go through this heart-wrenching, emotionally charged process with dignity and mutual respect. Every step toward divorce models to kids how conflicts get resolved. Collaborative law is ideal for couples who are ready to try to take ownership of their problems and their issues, their lives and their families. That is invariably hard work.
Do all of your prospective clients come to you already on-board and ready to collaborate?
No. Most individuals come to me with questions. Maybe they’ve been referred from friends who have had a successful collaborative or mediated divorce, or maybe they’ve heard about these alternatives. I get asked one question more than any other: How much am I going to get? I always respond by stating that the question you should be asking right now is what process you’re going to choose to resolve your dispute. It’s going to get resolved one way or another. Your choices are collaboration, mediation or litigation. I tell them I don’t do litigation, and if they want to spend their kids’ college education fund arguing, they can go down the street and find a litigator. But if they want to sit down and talk about solutions, they’re in the right place. That’s why I’ve got my office set up with a round table, without the usual imposing law books in sight. I want it to be a warm and safe place for exploring interests and positions from different viewpoints that help a couple restructure and rebuild their lives, with as little conflict as possible.”
What are the specific steps in the collaborative process?
Each spouse has a lawyer who has agreed to the collaborative approach. Both lawyers need to be well trained and experienced in collaboration, because obviously it’s a different skill set from what law school teaches. There’s a series of four-way meetings–two clients, two lawyers–that take place in a controlled, safe and respectful setting. At the first meeting, I tell both spouses that the most important thing we can accomplish today is get off on the right foot. I want to make sure the other spouse feels comfortable with me and that my client feels comfortable with the other attorney. I say to my client: I’m going to spend some time getting to know your spouse, and I want you to not feel that I am abandoning you. It’s really important that I establish a good rapport with your spouse. I tell the other spouse: You’ve got nothing to worry about from me. I’m not here to hurt you or harm you–I’m here to help you find solutions. That’s my role as your spouse’s collaborative attorney. And if you come across that way with people, they respond positively. The transparency is right up-front–it subverts all the usual assumptions. In the litigation model, both sides tend to use settlement meetings to stake claims and hold on to positions–about spousal support or property settlement. In collaborative negotiations, both sides are encouraged to express their fears, interests and concerns. This is important. What wakes them up at 4 o’clock in the morning? Let’s put that out on the table, and if each party can hear the other’s fears, interests and concerns, then you can come up with solutions that address those–and from there you can go on to specifics about property and support.
Powerful stuff. Got an example?
I remember a collaborative case where I represented the wife, who happened to be a financial analyst. She expressed fears about not being able, after the settlement, to afford to purchase a home for her and her daughter to share during their time together. The husband’s biggest fear was that after the divorce he wouldn’t be able to retire and live comfortably. These were their fears. I asked the wife if she would be willing to do an analysis like she does for her clients, examining her husband’s assets and looking down the road at what the future would look like for him. She did a detailed report and came in joking that she usually charged about $3,000 to do that for a client. After reviewing the report, the husband and his attorney concluded that in the future he would, in fact, be able to retire comfortably. Once his fears were addressed, he was willing to reach a settlement that would enable her buy a home.” That’s exactly what happened, they shook hands. I’ll never forget the last meeting we had–this moment outside my office. The husband passed me in the hall, stopped and smiled. He and I had this great connection. He wasn’t my client. Both were happy with the result. To me that’s a success.
Is collaborative law moving beyond family law, to other areas like probate and business law?
Yes, the collaborative process is a model that works very well in other areas of law where people who are in conflict anticipate, want or need to have some continuing relationship or who want to work toward solutions. The probate area presents possibilities for collaborative methods–for example, where there is a dispute over the terms of a will, or the passing of property. Likewise in certain civil cases, for instance, in a boundary dispute between neighbors who are going to continue living close to each other and in business disputes, where for instance, the loss of future business opportunities may be important to maintain. You may have a long-term business relationship between a vendor and a buyer. They’ve got an immediate dispute to resolve, but they’ve also got a history of creative work together.
There are a lot of CEOs who think to themselves: “We spend a lot of money on legal counsel and it doesn’t make sense. We’ve got a business to run, let’s stop spending so much time and money in litigation. Let’s sit down and talk about solutions instead of arguing.” In the end, litigation and collaboration seem to involve many of the same legal hurdles. They just approach the hurdles with different assumptions and attitudes?
You’re quite right. I see that again and again. For instance, in the discovery process, both sides need to produce various documents. In litigation, the assumption is that the other side is probably hiding something. In collaboration, you open your hand, put all the cards on the table, saying here’s what we both have. This is not as easy as it sounds, because issues of trust tend to be enormous in divorces. The breakdown of trust is why many relationships end. So a commitment to a collaborative settlement is a commitment that needs to be reaffirmed all along the way. Both parties must provide all the necessary financial information and then verify it with supporting documentation. If either side isn’t satisfied with the disclosure, negotiations are going to be very difficult. Each spouse’s lawyer is obligated to ensure that the disclosure rules are respected. If either side is convinced that their spouse is hiding assets or income, this is fair game for open discussion at the next four-way meeting. In one collaborative case, where the wife had questions about the way the husband ran his business, we had the husband’s CPA attend a four-way meeting at which time the wife and her attorney asked the CPA any questions they needed to have answered. One effective tool of the collaborative process is that we use neutral experts such as financial experts, child therapists, appraisers, etc. It stands to reason that collaborative cases would generally get resolved faster than litigated ones.
Prospective clients often ask: How much is this going to cost? I respond with my own question: How quickly do you want to do it? If you’re willing to work and cooperate together, we can do this as quickly as you want. It’s in your control. Collaboration puts the power back where it should be–in the parties’ hands, where it belongs.