Questions
What is the goal of collaborative lawyering?
The goal or
purpose of collaborative law is to offer lawyers and their
clients a structured, non-adversarial alternative to an
increasingly adversarial system of dispute resolution.
It guarantees
consumers of legal services high quality, skilled legal counsel
to assist in the evaluation and resolution of a problem, without
litigation.
For whom is collaborative law a good idea?
Not every lawyer
will want or be able to practice collaborative law. Not every
case will be appropriate for collaborative law, nor will every
client be interested in avoiding the adversarial contest.
For many lawyers,
however, the adversarial experience has led to a belief that the
commitment of time, energy, and money to an adversarial case
often does not achieve an outcome which provides a cost
effective or even a good solution to their clients’ problems.
Similarly, many
consumers of legal services are looking for experienced legal
counsel and skilled advocacy but do not want litigation. For
these lawyers and these clients, collaborative law is an
excellent option.
Representing client zealously
By entering into
a collaborative law participation agreement lawyers and their
clients have thoughtfully agreed to limit the lawyer’s role
within the contractual relationship to that of providing
representation for settlement purposes only.
Nothing in the
Canons of Ethics precludes such a limitation. In stepping out of
the adversarial process, the collaborative lawyer does not give
up the role of advocate for his or her client.
None of a
lawyer’s duties or obligations to a client are affected by this
limitation.
Can a party quit during the process?
Nothing in the
participation agreement precludes a party from terminating the
collaborative law process and pursuing litigation. However, the
client will have been advised at the outset that doing so will
require them to hire other counsel.
Of course, the
other side also will be trading their collaborative lawyer for a
litigator.
Assessing a Case
While the
participation agreement prohibits threatening litigation, the
lawyer’s advice to his or her client as to the strengths and
merits of his or her claim will always include an assessment of
the likely outcome if the case had to be litigated.
Consideration of
the law and one’s legal rights is always appropriate in
analyzing what a fair and appropriate outcome in a collaborative
process might be. Along with this assessment, of course, will be
consideration of all of the costs and risks of litigation.
Requirements for Lawyers
-
Lawyers must
have been in practice for a minimum of five years.
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They must
complete a two-day Collaborative Law Center training program
and such additional training as the Center requires.
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They must
commit themselves to faithfully observing all of the elements
of the collaborative law participation agreement.
Firm Disqualification
Is everybody in
a lawyer's firm precluded from participating in the litigation
in the event the collaborative law process is unsuccessful?
Yes.
Only in this way
can parties be assured that there is no benefit to be gained by
counsel in failing to succeed with settlement.
In-House Corporate Counsel
In-house
corporate counsel is in the unique position of being both an
attorney and a client simultaneously.
If the
collaborative law effort fails, however, corporate counsel must
retain outside lawyers to handle the litigation.
Why Lawyer Must Resign If Case Litigated
The requirement
that all lawyers be disqualified in the event of a breakdown
guarantees that all participating counsel will be totally and
exclusively motivated to make the process succeed. Thus, all
participants are equally and fully invested in finding the
solutions to all problems.
More subtly, it
is believed that the way people participate in negotiation, and
especially the way lawyers participate, is affected by the
certainty that that lawyer will never litigate the case.
Openness, candor, and cooperation replace guardedness, secrecy,
and threats as the techniques most likely to achieve ultimate
success. Walking out in anger, or provoking the other side to,
ceases to be a viable tactic.
Lawyer-Client Relationship
How is a
lawyer's relationship with a client different in the
collaborative law process, and how do lawyers prepare clients
for it?
First, the lawyer
never ceases to be the client’s advocate and the client is so
assured. By entering into the participation agreement the client
has already decided and declared the intent to neither threaten
nor pursue litigation (an entitlement, however, which the client
never waives).
Now the objective
is to discern and attempt to satisfy the interests of both (all)
parties. To that end, all parties and counsel must cooperate.
Counsel will encourage their clients to speak candidly about
their own needs and desires, and to listen carefully to those
expressed by others.
Collaborative
lawyers remind and reassure their clients that by treating the
other side’s interests with respect, they are serving their
client’s goals and interests. Collaborative lawyers are trained
in collaborative communication skills and will assist the
parties in this endeavor.
Only One Side Signs Agreement
Can one lawyer
practice collaborative law if the other side has not signed a
participation agreement?
It is assumed
that in most cases the parties will proceed on a collaborative
law basis only when all lawyers and clients have signed the
participation agreement. Circumstances could arise, however,
when one party and his or her lawyer might decide to contract
with each other with the premise that the lawyer is hired only
for settlement purposes, even when the other side has not signed
a participation agreement.
For example, some
lawyers might decide they do not wish to litigate and a client
might still want their services, or some clients might be
certain enough that litigation is not in their interests that
they would choose to establish that limit up front.
It may also be a
useful strategy for one party to approach another through their
collaborative lawyer with a participation agreement already
signed – it would demonstrate a clear intent to seek resolution
through non-adversarial means and thus encourage a more open and
less defensive response.
If Initiated by Non-Trained Lawyer
What if a
trained collaborative lawyer is approached by a non-trained
lawyer wishing to participate in the collaborative law process?
The participation
agreement allows a non-trained lawyer to enter into a
participation agreement with a trained collaborative lawyer (and
with their clients) when the collaborative lawyer member is
assured:
-
that the
non-member can and will abide by the terms of the
participation agreement,
-
become educated
about the collaborative law process as prescribed by the
Collaborative Law Center and
-
agree to take
part in future formal collaborative law training.
Different from Mediation
Mediation
involves the use of a third party neutral in facilitating the
negotiation and settlement of a dispute between the parties.
Parties can always walk out of mediation and proceed to
litigate.
In collaborative
law cases, lawyers and their clients will talk and negotiate
without the assistance of a third party neutral, unless they
find such an intervention would be useful. They are committed to
continuing the dialogue until a satisfactory solution is reached
since litigation is not an option.
End Result of Case
With the advice
and assistance of counsel, parties can conclude their
discussions however they wish, and secure any agreements by
whatever methods are appropriate.
They might walk
away satisfied, with no further action needed.
They might end
with some extra-judicial agreement or with some agreed court
order or releases.
There are no
formal limitations to what parties can agree to do to solve
their problems.
Case Management Deadlines
It is anticipated that most
collaborative law cases will be resolved prior to and without
any court filings. However, stay motions have been developed for
cases that have already been filed at the time the participation
agreement is signed.
Statutes of Limitation
In collaborative
law cases counsel and parties will cooperate with each other
fully to prevent the necessity of any court filings while the
collaborative case proceeds. This may involve agreements to toll
the Statute of Limitations when possible.
The participation
agreement provides for some limited court filings, as agreed
upon and necessary to protect the parties’ interests, while the
collaborative law case is in progress.
Attorney Fees
Representation
and fee agreements between attorney and client are not directly
affected by the participation agreement. Presumably, contingent
fee agreements will continue and some form of quantum meruit
provision can apply in the event of early termination of the
representation relationship.
Impasse Resolution
Lawyers
participating in the Collaborative Law Center have agreed to act
as mentors for each other to assist in reviewing problem cases
or situations.
Additionally,
collaborative lawyers can agree to employ experts to advise both
sides as to disputed facts or law.
Finally,
collaborative lawyers and parties can hire a mediator at any
time.
Disclosure of
Non-Discoverable Matter
Unless otherwise
agreed, by signing the participation agreement, the
collaborative lawyer and his/her client agree to provide good
faith responses to any good faith questions or requests for
information by the other party.
In this context,
a good faith question or request for information is one that is
reasonably calculated to assist in assessing the merits and/or
value of a party’s claim or to otherwise further the process of
reaching a settlement of all issues.
Since this
approach uses a standard for disclosure that is different from
that used in traditional discovery, a collaborative lawyer could
potentially be obligated to divulge some information that he/she
might have avoided disclosing in a traditional discovery
context.
Disclosure of
Privileged Matter
The informal
“good faith question/good faith response” approach is not
intended to require any party to disclose privileged
information. Certainly a party is free to do so.
However, no such
disclosure of privileged information – indeed, no disclosure of
any kind made during the collaborative process – could ever be
revealed to any court for any purpose except to enforce an
agreement reached during the collaborative process.
Disclosure of
Information Not Requested
Is a
collaborative lawyer required to disclose information that the
other side has not requested, but which may be important to the
case?
No. The informal
“good faith question/good faith response” approach is not
intended to require any party to disclose information that has
not been requested.
When the
Collaborative Law Center set out to devise a disclosure approach
that could occur without court supervision, a discovery
requirement resembling “core discovery” under Fed.R.Civ.P.
26(a)(1) was considered but rejected. “Core discovery” and its
supplementation requirements can lead to abuses that would
naturally impede the collaborative law process, including one
party inundating the other with mountains of information that
will be of no use to the other party.
In the
collaborative law process, the goal is to provide the parties
with the information they believe they need to resolve their
dispute – no more, no less. Thus, by instituting the “good faith
question/good faith response” approach, the Collaborative Law
Center’s participation agreement places the burden on the party
seeking information to specify what information he/she, in good
faith, will need to resolve the dispute without litigation.
Disclosure Problems
Found Later
What if, later,
after entering into a settlement as a result of a collaborative
law process, a collaborative lawyer discovers that the other
party failed to disclose information that should have been
disclosed?
In this respect,
a settlement agreement reached via a collaborative law process
is no different from any other negotiated settlement agreement,
and the former is no more or less susceptible to being annulled
for such a reason than the latter. To address this concern, the
participation agreement states that, in any settlement agreement
reached during the collaborative law process, the attorneys and
the parties may wish to recite the material facts upon which the
settlement is based. |
Our
trained participants use collaborative techniques to help parties
reach settlement in family, employment and other civil matters.
Lawyer's Weekly has called it "A Revolution in Divorce Law.
