• By Geertje Tutschka

Legal Coaching: The New Fish in The Pond


Legal coaching is the accompaniment and support of the client by an experienced lawyer or attorney in contrast to purely legal professional advice. With a focus on the interests and needs of the client, it increases the lawyer's competence in communication skills and conflict management and thus relies on soft skills. Unlike the additional training in mediation, the decisive advantage is that the lawyer does not lose his partiality and thus not his mandate and that it can be applied both as a complete coaching process and selectively in the mandate. But: Professional training in Legal Coaching should be mandatory and should also meet the quality standards developed by the professional associations for coaching.

Today coaching is an integral part of personal and professional development. The coach supports and accompanies difficult phases in training or during demanding projects, the (re-) entry into professional life, the preparation of the next career jump or salary negotiations. In crisis situations, it is easier for people with a trustworthy partner at their side to concentrate on the essential things, to keep an eye on the goal and to go their way in a focused and continuous manner. In addition to this individual work, a coach can also be called in by the company management to accompany and support changes in the company - the introduction of new processes or structures, outplacement or teambuilding. The latter is reminiscent of the job description of a lawyer, who also sees himself as a confidante and partner of his client. In both cases, the client remains the master of the situation and the lawyer/coach is solely responsible to the client.

However, while the lawyer primarily makes his legal expertise available and thus accompanies the client in disputes, negotiations or court proceedings, the coach offers a form of professional communication and process management, which offers the client a protected framework for development and own decisions.

Today, the business model of legal advice is in a dilemma.

Hardly anyone comes to the firm today for pure knowledge transfer, advice. Thanks to globalization and the Internet, information on every topic and every legal question can now be accessed free of charge and comprehensibly at any time and anywhere. When the client comes to the firm today, he is well-informed and expects to find a trustworthy partner who will accompany him through a crisis situation and help him shape a change in his living conditions, if you like. The pure consulting, which used to be the core competence of lawyers, is receding into the background and instead competences in crisis management, conflict resolution, empathy, communication and negotiation skills, strategic and systemic understanding are playing an increasing role. "The future of the legal profession will become female" was the title of the study forecast by the German Bar Association (DAV) as early as 2013 and meant that the classic competencies for the legal profession such as assertiveness, analytical thinking, pragmatic solutions were rather "typically male"; however, in future the industry would demand "typically female" qualities.

Photo: Geertje Tutschka

That's nothing new. Other classic consulting professions have also developed in this direction in recent years because the market has demanded it. The consulting industry is becoming increasingly more accessible, more humane and therefore less interchangeable. Not becoming interchangeable can be achieved in particular through a unique combination of different professional skills, professional and life experience. If legal expertise meets communication and crisis competence and combines this in legal coaching, the lawyer reacts to modern client expectations, because this coaching lawyer can pick up and understand his client much better in his current situation.

Legal Coaching - the rising star for legal super power

You will agree with me when I say that pure legal advice is not - perhaps never has been - our core business. In any case, however, it will no longer be in the future. Lawyers should be able to do anything as "eierlegende Wollmilchsau“ – a german saying and oxymoron for an „eggs laying and milk and wool giving – all inclusive - pig“. An attorney should be good as crisis manager, conflict coach, companion in change processes and of course THE legal expert. The challenges in the advisory mandate have always been manifold and complex and went far beyond pure legal advice. What is new, however, is that this "escort service" has advanced to become a core competence in times of Legal Tech.

In the classic consulting mandate, the lawyer asks the client for his legal request in order to then gather the necessary facts together with him. If they are then unable to support the legal request, advice is given on possible alternative solutions. The client alone decides which solution should be sought and which is the right one for him. This is too much for many clients. And what remains is an unsatisfied client with an unsatisfactory solution for him.

The knowledge monopoly of academic education has long prevented legal service providers from having to deal with this dilemma. Today, digitalization is causing the knowledge monopoly of the consulting industry to waver massively and is scratching the consulting business. Thanks to the Internet, knowledge can now be called up anywhere and at any time, free of charge. Consultants have to rethink and develop a new service culture in which the customer finally takes centre stage again. However, the client has never actually gone to the firm solely for informative advice. He has always been interested in finding and implementing a solution. Today, however, in most client meetings the information of the pre-informed client is reduced to a minimum, namely to the part that is not generally available: the information tailored to the individual situation of the client.

Now most lawyers understand the individual situation of the client as a "factual situation". Objectivity and distance are basic principles in classical legal advice - and in the entire legal sector: the cataloguing of mandate files, the traditional impressive meeting rooms in law firms (with its culture of appointment and presence), the legal and judicial robes, even the interior architecture of the courtrooms and the procedural rules were developed solely for this purpose.

Based on the factual situation, the legal request is defined (objectively and subjectively) and the lawyer begins with the appropriate assessment and information of the client.

As a rule, the following are not taken into account at all

  • the client's emotional state and the stage of the crisis or change process,

  • which legal solution pays for the client's value system and life goal, and

  • The basis of every mandate is how the relationship of trust required for the mandate can be established as quickly and sustainably as possible.

A widespread paradigm in legal advice in this context is: "Legal advice is only professional and serious if the problem is approached and solved analytically and objectively”.

You don't want to be too human. Finally, emotional distance from the client helps to keep a cool head. And indeed: The objectification of the conflict situation, in which the parties in the vast majority of cases were already hotly debating their heads, is one of the core values of the law business.

But: The objective consulting mandate can in principle be replaced by technical solutions.

And does this also apply in the relationship to the client? How can the best legal solution for the client be found and individual advice provided if the client is not perceived as a human being? The lawyer working in this way today offers little more than a technology-based solution - and rightly fears being replaced soon!

A thorough understanding of change and communication processes is essential for successful legal practice. This not only guarantees satisfied clients, but also professional and thus efficient mandate management. However, as this is not included in the training of lawyers nor is business know-how included, it remains the task of the legal profession to reproduce this post graduate.

Today, clients come to the lawyer's office pre-informed - or no longer come personally -, but are in a personal crisis situation as ever, in the midst of their change process (be it a dismissal by the employer, a penalty notice from the tax authorities, an impending insolvency). That scares them. This takes away the voluntary nature of the visit (similar to a visit to the dentist). No wonder lawyers don't necessarily have the best reputation, as they are regularly associated with all these negative situations and feelings.

According to the different basic models for crisis situations and changes, various stages are always passed through, always all of them and always one after the other. Without going into too much detail here, for mandate processing, it makes a difference whether the client

  • is in the "first shock" (e.g. he has just received the termination), when he comes into the office or

  • is already in the phase of crisis (e.g. he has already held talks) or

  • in the stage of acceptance (e.g. he has already reoriented himself).

In the first case, he is usually not in a position to provide all relevant facts. The displacement phase prevents him from doing so. The deep crisis has not yet bottomed out. If the lawyer does not respond to this and does not provide more confidence-building measures than he demands facts, the crisis situation is quickly projected onto the lawyer, who is declared a "scapegoat". For the client this can even mean that he remains in the crisis situation and moves back to the event/shock in a "feedback loop". He remains trapped in the process, with no chance of resolving the conflict. No legal solution will satisfy him.

If, on the other hand, the client only comes "when the child has fallen into the well" and he is already in the phase where he has come to terms with the sudden change, he will be able to support the lawyer much more easily and with greater commitment in the preparation of the mandate. Uncontrolled emotional outbursts are not (any longer) to be expected. These clients are the dearest ones to many colleagues. They lean back in a relaxed manner and concentrate on their actual work; then they are surprised to discover that the client is "gone" again at the first opportunity. The colleague failed to recognise that the client was no longer as open and grateful for an intensive customer relationship as he had been at the acute crisis point. Now the lawyer quickly becomes "interchangeable" and "arbitrary", if he does not invest quite specifically, for example with holistic services and actively in the development of the client relationship. If it is to become a regular customer and not remain a flash in the pan, client loyalty must be sustained here.

All this can be learned and saves a lot of self-experiments. Communication and crisis training is therefore an ideal post-graduate training for lawyers in any field of law. Unfortunately, these are still not regularly integrated into vocational training as "soft skills". The legal education focuses exclusively on legal training: in the course of studies but also in the specialist legal professions in some countries. In addition, in the vast majority of cases the obligation to provide professional training consumes the annual time and financial budgets of continuing vocational education and training.

That's a shame. After all, as lawyers we know from our own experience that it is not our legal knowledge but the trusting mandate that secures our income.

Mediation – an alternative way?

Hardly anything has changed the basis of negotiations in recent years as sustainably influenced as mediation. And the number of attorneys who have Mediator training continues to grow. Although the price of the loss of the partiality as a lawyer for increasing his negotiating competence is high: The lawyer who accompanies the dispute entrusted to him as mediator is liable as follows a lawyer, but loses his legal mandate and can no longer act as a lawyer in this case.

In most countries, mediation is now recognised as an alternative to judicial dispute resolution and is also regulated by law. At the same time, mediation is not necessarily only a business field for lawyers, so that in addition to the loss of the mandate and thus to the loss of the lawyer's settlement with non-lawyers, lawyers are actually competing on price. In the vast majority of cases, this low price cannot be offset by the possibility of a lawyer's fee agreement. In addition, in many countries, at least in the case of a dispute pending before a court, a court fee is also charged for out-of-court settlement of a dispute.

Finally, there is one not insignificant detail to consider: mediation training is not only costly but also very long and intensive.This is no coincidence - it is not only a matter of conveying a great deal of knowledge about human communication processes, conflict situations and psychology, but also of training future mediators in self-management.

As objective, fair moderators, they should navigate the parties through conflict resolution. Lawyers have to learn to disregard their partiality. Lawyer and mediator do not work in the same mandate, so it is prohibited by law. For most people, however, it does not work either to work as a lawyer or as a mediator in different mandates on the same day. It requires a changed attitude, the colleagues report a completely different mentality.

Most lawyers are therefore only complete mediators once a month or once a week on one single day - and this is more a matter of the heart than for economic reasons, as we have seen. Mediation - as the overwhelming majority of lawyers trained as mediators report - therefore actually only has the status of a "hobby" or "honorary office" for the legal profession and is otherwise more useful as background knowledge in the consulting business.

Negotiation - an evergreen in legal consulting?

Negotiation is a term used by lawyers from American or English-speaking jurisdictions mostly to refer to the so-called Harvard concept.This method was developed at the renowned American Harvard Law School in the so-called Harvard Negotiation Project. In doing so, out-of-court settlements of disputes should be deliberately worked on, which neither seek confrontation nor "lazy" compromises, but rather a win-win with peaceful means in order to burden the relationship between the parties as little as possible. In the German-speaking area, but also in many other European countries, negotiation simply stands for conducting negotiations - a synonym that does not match to the understanding in the English-speaking world.

Unfortunately, the Harvard concept and its potential are still underestimated in today's legal education.

There is still no professional training in this field; the courses and workshops offered are of very different quality and hardly do honore the concept - not only is there a lack of certification for the trainers, but above all there is a lack of good practical training for the participants and the subsequent continuous monitoring of the conduct of negotiations according to the Harvard concept.

In commercial law and also in family law, the two top areas of application of mediation, a new form of out-of-court settlement by negotiation has established itself in order to avoid the disadvantages of mediation:

Mediation without a mediator, but with two lawyers.

In contrast to classical mediation:

  • no one actually plays the role of mediator in the process

  • both parties are represented by a lawyer and

  • ideally, at least one of the lawyers is a trained mediator

This form of out-of-court dispute resolution has its advantages, since from a legal point of view classical mediation sometimes leads to unbearable results, because non-legal consultants work on legal effects which they do not understand.

However, experience has shown that the lack of a professional mediator to conduct the case is hardly replaceable, so that it generally amounts to a simple "out-of-court settlement" of the dispute between the parties represented by the lawyer.

A termination, by the way, which is quite desirable in the vast majority of legal systems and which is particularly rewarded by a special settlement fee for the lawyers, as it relieves the courts and is often sustainable in the long term.

Collaborative Law - Agile conflict resolution in legal consulting mandates

Like mediation, CL focuses on cooperation instead of confrontation - and aims for an out-of-court settlement of disputes.What is new is that the conflict parties are represented by lawyers as well as other experts like change consultant, coach, family therapist, crisis manager. The top priority is to find the optimal solution for all parties.

All participants work consistently and jointly towards conflict resolution. Through the intensive and open debate, the conflict parties become conflict partners who leave their rigid positions and move on to define their common interests. At the end of the procedure there shall be an agreement between the parties which shall be binding, and which shall be independent and consensual. If, in exceptional cases, no amicable result is reached, the conflict can still be settled in court. But like in mediation the CL lawyers are not allowed to represent the parties to the conflict in court.

Through the cooperation in these interdisciplinary teams and the exchange of experience, mutual trust is strengthened and joint competence for conflict resolution is increased. The problem with this new method of legal conflict resolution with agile teams could be that both the team leadership and the process moderation are often not precisely defined and therefore many discussions simply have to take place at many different levels. This costs time that cannot be billed as a lawyer. But it also leads to legally viable and sustainable solutions.

Whether this fits the business model of the respective lawyer and corresponds to his nature, each one may decide for himself.

A method like Legal Coaching, which simply lets the lawyer be a lawyer, namely a partisan, trustworthy partner for every crisis situation from the beginning to the end of this and every other mandate, thus still corresponds best to the legal professional understanding and nature of most legal professionals.

Legal Coaching can describe both: a complete coaching process and the selective situation-related application of coaching techniques in the mandate.

How do you learn coaching?

Years ago, the opinion was that academic expertise was the only thing that mattered and that it was not important whether you taught as a professor at university, advised as a lawyer, treated as a psychologist or coached. Today we know that these are very different methods used to achieve different goals.

Thus, one becomes a coach through a professional coaching training, which corresponds to the quality standards of the leading professional associations for coaches (like the International Coach Association, ICF). After successful completion of this training, a certification process follows regularly, in which the coach proves his practical experience and his ability (comparable with studies and legal clerkship or the theoretical and practical part in the specialist lawyer training). The certification of the coach ensures, independent of the training in professional practice, that the coach is regularly trained further, follows the ethical guidelines and that his coaching is of unadulterated quality even after many years.

These are the quality requirements of professional associations for professional coaches, which are increasingly also stored in the coach profiles by the current online platforms for the placement of coaches.

But what is the benefit of such training for lawyers?

  1. It pays off in his business, because his clients are satisfied with his services.

  2. It pays off for him personally because he is happier himself.

  3. It pays off in his office because the employees are more satisfied.

As a trained coach, the lawyer can not only understand the client's crisis from a legal but also from a human perspective, determine its stage and select the appropriate methods to lead the client out. These are not primarily legal steps, but communication that addresses the client's need for security. The client feels understood and the lawyer can better classify and understand the client's information, but also coordinate strategy and tactics as well as client management. This leads to a trusting and sustainable client relationship, but also to the right legal solution for the client. Business is revived. The lawyer can really help on a human level and feels fulfilled and meaningful in his work.

The coaching training has provided the lawyer with an understanding of human relationship systems, needs, communication patterns and paradigms. He will be able to better understand his client, but above all himself. To become a good coach, you first have to work on yourself. Self-reflection, self-management, mindfulness, change of perspective, setting and achieving goals, distinguish him. In his coaching training he has therefore dealt with his own strengths and weaknesses, fears, triggers and beliefs. This is intensive and not easy and usually leads to a different self-image and relationship to oneself. This lawyer no longer slips easily into burn-out or a deep crisis in his life. It has grown and matured personally.

Such a reflective and self-contained boss will prefer a leadership style based on mutual respect and esteem, but also on clarity, transparency and trust. He knows what he and his firm stand for and what they are there for and which employees fit in with his firm and the firm team. However, he also knows the needs of his employees and is therefore involved in personnel and team development. Structures and processes should support and not hinder the personal responsibility of the employees. It can mediate in team conflicts. Difficult issues are not ignored, but approached sensitively. The employees like to come to the office and identify with their work, so that the entire team pulls together, which ensures a healthy working atmosphere.

At present, the CLP-Academy (www.CLP-Academy.com) alone offers complete professional training for lawyers and similar professions in Legal Coaching that meets the quality standards of coaching professional associations. The training was developed by Dr. Geertje Tutschka, an attorney with 25 years of experience in Germany, Austria and the USA, who has been President of the german Chapter of the ICF (www.coachfederation.org) since 2016 and who stands for internationally quality standards in coaching and solid, client-centered legal consultancy. The courses take place 1-2 times a year in small groups exclusively for lawyers, comprise approx. 100 hours, of which one attendance week and one attendance weekend. The aim is to provide the lawyers with basic coaching training as well as all the necessary practice units and aids for practical implementation in everyday work. Further methodical additional training can be easily saddled on. An international certification by the ICF is aimed at in any case.

CLP - Consulting for Legal Professionals offers since almost 10 years coaching, training and counseling for career and law firm development for attorneys and law firms around the globe. CLP – because we love lawyers.

Literature

  • Book "Kanzleigründung und Kanzleimanagement" (Law Firm Development) DeGruyter May 2018

  • Article "Legal Coaching - a Hybrid" NJW 30/2018 - 19.07.2018

  • Article "Whats legal Coaching" in The family Law Coach - Blog 09.12.2017

  • Article "Agile Leadership in a digital world" in the Legal Revolutionary 01.08.2018

About the Author

Dr. Geertje Tutschka has 25 years of professional legal experience in Germany, the USA and Austria as a lawyer, in-house counsel and author of legal literature. She is a certified Coach (International Coach Federation) and Trainer (Intercultural Trainer/Mental Trainer) and have been supporting their colleagues in the development of their law firms and careers with her company CLP - Consulting for Legal Professionals for almost 10 years. For the CLP Academy she has developed the training in Legal Coaching, a course directly tailored to everyday legal work. As President (Past) of the German chapter of the largest professional association of professional coaches worldwide, the International Coach Federation, she has stood for international quality standards in coaching since 2016. She is the author of numerous articles and specialist books on leadership, strategy and the development of law firms, the future of the legal profession and a career as a lawyer, as well as a lecturer at the Fernuniversität Hagen. Dr. Tutschka has three daughters, lives with her family in Salzburg and works worldwide. In her spare time you find her outside with her Australian Shepherd - in summer in the Alps or on one of the long-distance hiking trails and in winter with the sled dogs.

"I live for the support and training of my lawyer colleagues on their individual way to success. That is why I founded CLP, my management consultancy specialising in law firms and lawyers: CLP - we love lawyers."

www.consultingforlegals.com

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