Co-Authored by Joan L. Tremer, Esq.
Reprinted with permission of the Richmond County Bar Association Journal
Collaborative Law or Collaborative Practice as it is sometimes called is one of the newest forms of Alternative Dispute Resolution (ADR) which can, in many cases, prove highly beneficial to both clients and counsel. This article will present an overview of the basics of the collaborative law model, its advantages over litigation and mediation when utilized in appropriate cases, and the ethical issues which must be considered when integrating Collaborative Law into your practice.
Collaborative Law is an “alternative way to settle disputes in which both parties hire specially trained attorneys who work to help them respectfully resolve the conflict.”1 In fact, Collaborative Law, and ADR in general, have recently been receiving favorable publicity and positive support from the public as well as an increasingly overburdened court system.
In her book entitled The New Lawyer: How Settlement Is Transforming the Practice of Law, Professor Julie Macfarlane points out “…a 98% civil settlement rate, and the increasing use of negotiation, mediation, and collaboration in resolving lawsuits, have dramatically altered the role of the lawyer.” Commenting further “that the patience and deference of the consumers of legal services are beginning to fray around the edges, and have ignited a growing demand among clients, whether they be corporate or individuals, for their lawyers to serve as ‘conflict resolvers’ rather than ‘warriors’.”2 Indeed, a collaborative lawyer’s role is not one of adversary on behalf of the client, but rather, as advocate and advisor to assist the client in reaching a harmonious and just settlement, thus answering that “growing demand” for an alternative path to resolution.
In a recent article in the ABA Journal’s August 2013 issue, the emerging trend toward the “integrated practice of law”, which includes collaborative practice, was explored. Integrative lawyers see themselves as “healers” and are venturing into the fields of psychology and neuroscience to better comprehend how the human mind and psyche work. This knowledge can then be used in negotiations to reduce conflict and approach resolution in a therapeutic transformative way. By refraining from the trademarks of traditional law, and the aggressive and competitive approaches often employed, integrative lawyers can achieve positive outcomes for their clients and better balance in their own lives by focusing instead “on avoiding harm and restoring relationships”.3 From that point of view, Collaborative Law may be seen as revolutionary, and the training and skill-set of collaborative lawyers most timely, given Professor Macfarlane’s observation of a societal trend away from high conflict.
The New York Unified Court System, prompted by the foresight of former Chief Judge Kaye, has embraced the collaborative model by establishing a Collaborative Family Law Center.4 The Center, through its informative website, provides a thorough explanation of the process and details it’s applicability in a question and answer format appropriate for lay people as well as attorneys. While acknowledging that collaborative law is not appropriate in every case, the Center seeks to make available low cost collaborative services to qualified divorcing couples, as well as listing all the collaborative practice groups throughout the state, for couples seeking to privately retain collaborative attorneys. The Staten Island practice group is one of the fifteen currently existing statewide.5
The Uniform Collaborative Law Act (UCLA) has been approved by the ABA and has been passed in several states. In its report, the Dispute Resolution Section of the New York State Bar Association pointed out the benefits the Act would provide. Among these were the setting of minimum standards for collaborative practice, allowing greater flexibility and choice of options to clients and attorneys, promoting the preservation of continuing relationships among disputants, and lowering the cost, risk and anxiety of litigation.6
So, how exactly does the collaborative process work? And how do parties respectfully resolve conflicts? The collaborative model is founded and works on three basic principles:
1) A written pledge not to litigate in court;
2) Honest, voluntary, prompt and good faith exchange of
relevant information, without formal discovery; and”
3) A commitment to strive for solutions that take into account the highest priorities of both clients
At the commencement of every case both attorneys and clients sign a four-way Participation Agreement, a contract which structures and governs the process and sets forth what is expected of the parties.7 It is separate and apart from the retainer agreement which each attorney will sign with his or her own client. Importantly, the Participation Agreement contains a disqualification provision which requires that, should the negotiations fail and judicial intervention become necessary, new attorneys must be retained to go to court.8 This feature protects the integrity of the process and helps clients and attorneys remain steadfast in their commitment to continue to collaborate.9
It is also what distinguishes collaborative practice from mere cooperation between the parties. While most attorneys try to cooperate to effectuate a fair outcome outside of court, when the coercive threat of potential litigation remains present the task of negotiating a resolution is often more difficult. The disqualification requirement of collaborative practice removes this impediment, vests the effort and energy of the participants in settlement, and lets the parties truly let their guard down to brainstorm novel or tailored solutions to their dispute. Thus, the disqualification provision is essential and integral to the collaborative process.
Collaborative attorneys by virtue of their training, in interest based negotiations and enhanced communication skills, generally undergo a “paradigm shift” in their viewpoint toward conflict resolution. As such, they are able to avoid the use of positional bargaining and other unproductive tactics and commit to the maximization of mutually beneficial goals.10 However, each attorney always retains a professional obligation to represent his or her own client diligently. While collaborative attorneys are well advised to address and establish a rapport with the opposite party; they remain bound by the same ethical duties to their client as in a traditional litigated case.
The fact that clients have their own advocate in the collaborative process clearly differentiates it from mediation. For while both processes share some common characteristics and techniques, collaborative law can significantly address the power and or knowledge imbalance which sometimes exists between the parties in mediation and which the neutral mediator is limited in ability to correct. While collaborative counsel aim for settlement through effective principled negotiation, unlike mediation, they concurrently provide legal advice, guidance and support to their clients throughout the process.
The collaborative process is also completely voluntary in nature and accepts the right of the parties to self-determine the outcome. As such, any party may withdraw at any time. It is conducted through a series of joint meetings where issues, ideas and proposals are discussed and analyzed in turn, until resolution of all or some of the issues have been achieved.11
A concept unique to collaborative practice is the use of jointly retained neutrals from complimentary disciplines working together as part of a “team”, and sharing their information and expertise when needed. Since the process is geared toward practical problem solving it can often benefit from this interdisciplinary approach.
In considering the different issues or problems their clients face, attorneys working in the process may determine and suggest other professionals who could be helpful in educating the parties and expanding their settlement choices. These collaboratively trained specialists may either participate in the joint meetings or work with the parties separately to develop workable solutions which meet everyone’s needs and increase the likelihood of a successful resolution.
For example, in the Family Law context, the team may include a financial professional to review budgets, prepare net worth statements, and discuss tax implications. A child specialist, a mental health professional, may meet with the parties to discuss parenting issues and plans, or see children, if there are child rearing issues or children with special needs.
Another mental health professional, a divorce coach, may meet with one or both parties to help them participate more effectively in the process and to discuss what ideas they have for their future life. They can be called in if a non career spouse needs to return to the work force, if there is fear and confusion about the future, or if a client needs assistance in overcoming anger and destructive communication. In highly emotional cases they can act as facilitators, to help keep the dialog constructive and respectful during a scheduled meeting.12
As transparency and fairness are the foundation of the collaborative model, if an attorney discovers his or her client is not being forthcoming, lying, or failing to disclose material, they are bound to withdraw from the process. Likewise, if a mistake is made by either party, it is incumbent on attorneys to correct the error so as not to allow an unfair advantage within the process. To promote open and unguarded conversation any information, proposal or discussion which has taken place is and remains confidential and cannot be disclosed subsequently.13
The collaborative process works especially well in those matters which involve parties who are closely connected to one another. It is most frequently used in divorce matters for this very reason. However, the process is equally well suited to other types of cases where preserving continuing relationships is an important factor. As such, estate matters, elder law issues, partnership and business claims, employment, and commercial disputes would all be types of cases that would benefit from the collaborative model.14
In summary, the primary benefits of collaborative law include the potential for overall time and cost reduction as compared to litigation, the promotion of client empowerment and self-determination in crafting more lasting and satisfactory settlements, the increased consideration of the parties’ emotional well-being and the preservation
of important continuing relationships after the dispute.15
However, the ethical implications of collaborative practice must be carefully reviewed and procedures which insure compliance with the rules must be implemented by attorneys who intend to practice in this rapidly expanding area.
The ABA Commission on Ethics and Professional Responsibility in a 2007 Formal Opinion concluded that collaborative law is a “permissible limited scope representation under Model Rule 1.2” and that the disqualification provision, so crucial to the collaborative model, is “not an agreement that impairs the lawyer’s ability to represent clients, but is consistent with the client’s limited goals for the representation”.16 The opinion invalidated arguments that the disqualification provision violates the ethical rules because an opposing party could end the process and thus limit the other attorney’s representation of their client. Instead, the opinion concluded that an impermissible conflict of interest is not created in the collaborative context where either party may end the process terminating an attorney’s representation under Rule 1.7. As long as the client has given informed consent, and the” limitation is reasonable under the circumstances” the lawyer may represent their client collaboratively.17 However, informed consent under Rule 1.0(e) “requires that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the limited representation.”18 The state opinions which have been decided have almost universally adopted the ABA’s position.19
Collaborative practice groups, through the International Academy of Collaborative Professionals, and more informally, locally, have refined and shared many good protocols to prevent any ethical missteps by their ever increasing cadre of colleagues. These include sample limited scope retainers, client documents laying out the advantages, disadvantages and risks of the collaborative process, the alternative methods of resolution available, and an explanation of the disqualification terms of the Participation Agreement. They have also developed detailed client questionnaires to allow attorneys to make better determinations of the appropriateness of the process to a particular client’s situation, and to assess the likelihood of success, as is required by the ethical rules.20
At present, nine states have existing collaborative statutes and have promulgated rules setting minimum standards, with legislation proposed in an additional seven states.21 As the Uniform Collaborative Law Act gains ground in more states it will “help establish uniformity in core procedures and consumer protections”, and so further assist collaborative practitioners and the clients they serve.22
Attorneys and their clients are well aware of the large dockets that overburden courthouses and judges, and have found, all too frequently, that the wheels of justice turn slowly. The financial and emotional toll litigation has had on its participants is very real, and these realities have helped to spur the demand for alternative dispute resolution processes. The continued development of collaborative practice is indicative of the law’s ability to evolve to meet the current needs of society.
Perhaps it is best said by the former dean of Harvard Law School, Derek Bok, when he offered this observation, “Over the next generation, I predict society’s greatest opportunity will lie in tapping human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry. If lawyers are not the leaders in marshaling cooperation and designing mechanisms that allow it to flourish, they will not be at the center of the most creative social experiments of our time.”23
Reprinted with permissions of the Richmond County Bar Association Journal.
1 Nolo Plain English Law Dictionary/ Collaborative Law
2 Norman Solovay & Lawrence R. Maxwell, Why a Uniform Collaborative Law Act? New York Dispute Resolution Lawyer, NYSBA, Spring 2009, Volume 2, No 1 at page 36, citing Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law, Vancouver, UBC, 2008, Preface.
3 Hollee Schwartz Temple, Attorney As Healer, Integrative Law Puts Passion Into The Profession, ABA Jounal, August 2013, at pg.27.
4 See Judith S. Kaye, New York State Unified Court System, The Sate of The Judiciary (2007), available at www.courts.state.ny.us/ctapps/soj.htm
5 http://www.nycourts.gov/ip/collablaw (last visited 9/9/13)
6 New York State Bar Association, Dispute Resolution Section, Report On The Uniform Collaborative Law Act, (January 27, 2011), available at http://www.nysba.org/drs.
7 Uniform Collaborative Law Act, Draft, Prefatory Notes & Comments (2009). for model Participation Agreements see
http:www.collaborativepractice.com/lib/PDFs/IACP_MPAsandGuides.pdf (last visited 9/4/13)
8 Gary L. Voegele, Linda K. Wray & Ronald D. Ousky, Collaborative Law: A Useful Tool For The Family Law Practitioner To Promote Better Outcomes, 33 Wm. Mitchell L. Rev.971,978.
9 Id. at p. 979.
10 Id. at p.982, citing Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution In Divorce Without Litigation, (2001) at p. 27.
11 Id. at p. 984. (It is notable that the voluntary nature of the collaborative process makes it inappropriate in situations such as domestic violence, which preclude true self-determination)
12 David Hoffman & Pauline Tesler, The Alternative Dispute Resolution Practical Guide, B.Roth,ed, West Publishing (2002) Ch.41,Sect.5
13 UCLA,Prefatory Note
14 Kathy A. Bryan, Why Should Businesses Hire Settlement Counsel, J.Disp.Resol.(2008),195,197.
15 UCLA Draft p. 8.
16 ABA Comm. On Ethics and Prof’l Responsibiltiy, Formal Opinion 07-447 (Aug. 9, 2007)
17 Id., see also Model Rule 1.7
18 Id., see also Model Rule 1.0(e)
19 See Brian Roberson, Lets Get Together:An Analysis Of The Applicability Of The Rules Of Professional Conduct To Collaborative Law, 2007 J.Disp.Resol. at pgs.264-266., Also see Colorado Bar Ass’n Ethics Op.115 (Feb.24, 2007) for the sole exception.
20 See http://www.collaborativepractice.com.
22 The National Conference of Commissioners on Uniform State Laws Collaborative Law Act Summary, available at http://www.uniformlaws.org/ActSummary.aspx?title=CollaborativeLaw (last visited 9/5/13)
23 Norman Solovay & Lawrence R. Maxwell, Why A Uniform Collaborative Law Act? New York Dispute Resolution Lawyer, NYSBA, Spring 2009, Volume 2,No.1 at p.39