All the training in the world won’t make an attorney “mediation-minded” or “collaborative” if they are lacking when it comes to emotional intelligence.
“Emotional Intelligence is divided into the four clusters of Self-Awareness, Self-Management, Social Awareness and Relationship Management (often been referred to very broadly as “people skills” in years gone by).”
I recently handled a divorce case with an attorney in which we had very different perceptions as to whether or not it was handled in a “cooperative” manner. The attorney in question has been well-trained in both mediation and collaborative law and I know longer consider this attorney to be “mediation-minded” for the same reason why most complaints are filed against lawyers by their clients, which is “He didn’t return my phone calls.”
On the various occasions in which I complained to this attorney’s paralegal about the difficulties I had getting responses from her and having had to chase her down, the paralegal compared this attorney to a now deceased attorney who was even worse in that regard. The paralegal acknowledged that this attorney often does not make it easy for opposing counsel to communicate with her or receive responses in a timely manner. However, the “silver lining” was that it could be worse.
I’ve complained to this attorney about such things on a great many occasions in the past and it has always fallen on deaf ears.
It is incredibly frustrating and takes time for which I and other counsel can’t bill (without our clients getting upset) for the time we spend chasing down attorneys who act in such a manner. I can’t tell you how many times on the last case I had with this attorney, that my client actually wanted me to go to her office and sit there until I could speak with her. It’s frustrating when the other professionals involved can’t reach counsel for one of the parties because they are unavailable for whatever period of time and for whatever reason.
It also bears mentioning that the level of conflict escalated on a case that was supposedly handled cooperatively because of this communication issue. To the extent that it was caused any given time by her client’s not responding to her, it would have been nice to have known that on any given occasion and to have regular follow through on her end regarding the status of that issue.
On several occasions on that “cooperative” case, I had to use my skill set to talk my client out of transforming the matter from “cooperative” negotiation to litigation. He didn’t want an answer forced on him and at the same time he didn’t want no response. It became a choice between a forced answer and a delayed answer based upon communications issues between counsel.
I certainly have no problem with divorcing couples communicating and negotiating directly with each other. However, when the clients who retain us as their representatives end up feeling compelled to engage in such direct communication and/or negotiation with their spouse because we can’t get answers to things because that requires communication which is to some degree broken, we have a bit of a problem, in my opinion.
The other aspect that bears mentioning but is minor in comparison, is that lawyers like to speak with other lawyers about their cases. They don’t like having to speak with the opposing counsel’s administrative assistants or paralegals. That’s not to slight administrative assistants and paralegals, but it is a respect issue when one attorney makes the other attorney communicate with her through her staff.
On top of everything else, only the lawyer has certain authority to settle cases on their client’s behalf. The attorney’s staff work under that attorney.
In addition, information does not necessarily get properly conveyed with it goes from an assistant or paralegal to the attorney.
As Charles Feltman set forth in “The Thin Book of Trust - An Essential for Building Trust at Work”, trust exists if all four of the following essentials exist: (1) sincerity; (2) competence; (3) care; and (4) reliability.
According to Mr. Feltman, the four dynamics are as follows:
“* SINCERITY - is the assessment that you are honest, that you say what you mean and mean what you say; you can be believed and taken seriously. It also means when you express an opinion it is valid, useful, and is backed up by sound thinking and evidence. Finally, it means that your actions will align with your words.
* RELIABILITY - is the assessment that you meet the commitments you make, that you keep your promises.
* COMPETENCE - is the assessment that you have the ability to do what you are doing or propose to do. In the workplace this usually means the other person believes you have the requisite capacity, skill, knowledge, and resources to do a particular task.
* CARE - is the assessment that you have the other person’s interests in mind as well as your own when you make decisions and take actions. Of the four assessments of trustworthiness, care is in some ways the most important for building lasting trust. When people believe you are only concerned with your self-interest and don’t consider their interests as well, they may trust your sincerity, reliability and competence, but they will tend to limit their trust of you to specific situations or transactions. On the other hand, when people believe you hold there interest in mind, they will extend their trust more broadly to you....”
Communication issues that arise because of an attorney’s unavailability or lack of communication regarding their unavailability impacts trust.
“Anyone can become more emotionally intelligent with the right training and practice....
People with high EQs possess strong skills in each of the four areas, and they practice these skills daily....
The process of improving your emotional intelligence EQ ... involves using real-time tools to identify destructive emotional patterns and then to break those patterns in real time. In essence, EQ improvement is the process of rewiring your brain.”
I wish I could say that this particular attorney is the only attorney who is well-trained in both mediation and collaborative law that has such issues with regard to communication, but I can’t. Training does not change your personality type and you don’t develop emotional intelligence through osmosis.