The traditional law school adversarial approach is no longer appropriate for most cases. Lawyers need to look for nonabrasive alternatives. So just when you thought that mediation was the ultimate dispute resolution process, along came "collaborative lawyering." This combination of the problem solving and interest-based negotiation principles applied in the mediation process, plus the commitment to settlement, first came to my attention during the early part of this 21st century. Lawyers are retained to represent clients "for settlement purposes only" and they are committed to advocate but not litigate.
The key difference between collaborative lawyering and mediation is thatthe parties and their lawyers agree by contract to end their relationship ifsettlement efforts fail. This is an unfriendly process to litigation and lawyer self-interest, but friendly to clients and lawyers who are problem-solvers. "Hired guns" are not welcome.
The process works this way. The parties and their lawyers sign a "participation agreement." The terms provide no reward for failure to settle but commit not to litigate. The lawyers and their clients agree to work together to find a solution through a collaborative effort to identify all interests and underlying needs. This agreement controls the entire process and there must be good faith questions and requests from both sides that generate good faith responses. The lawyers and their clients all work together as a team to achieve settlement.
What about confidentiality? Absent their mutual agreement, nothing from the collaborative lawyering process (including experts) may be used in any subsequent litigation between the parties, except as may be necessary to enforce a settlement agreement reached through the collaborative lawyering process. However, the process is not risk-free. Litigators may subsequently obtain previously disclosed information through discovery if settlement is not reached. But even here there are "second chances." In the event that settlement attempts fail and litigation has commenced, the parties can always change their minds and resume the collaborative lawyering process if they find that settlement is preferable to the courtroom.
During the collaborative law process, unilateral action is prohibited. Neither party may file pleadings with the court without mutual agreement to do so. Unilateral document filing will automatically terminate the collaborative lawyering process (even if the filing was limited to emergency relief). And the lawyer filing the pleadings will be disqualified from further representing the moving client. This can be avoided by the execution of a "tolling" agreement where both sides agree to toll the process for the benefit of either party. In the event that the collaborative lawyering process fails, the court may make a tolling agreement on the basis of an order retroactive to the date of that agreement. And a court may enforce a collaborative law settlement agreement if necessary.
All parties to the collaborative lawyering agreement pledge to consult with an approved advisor/mediator before terminating the process, unless all sides agree that this would be futile. In the event of a unilateral withdrawal from the process by one party, the other side must be given written notice. This is followed by a 30-day "waiting period" (unless emergency relief is required) before litigation may proceed. Existing temporary agreements remain in effect during this period.
Should a settlement not result from the collaborative lawyering attempt, the attorneys are "disqualified" from continuing to represent their respective clients in the litigated matter. The only exception is the case where there is corporate in-house counsel, but even here the corporation must retain outside lead counsel to represent it in the litigation.
Because there is no "free ride" for the lawyers, interested members of the bar need to make a commitment to train for this specialty, unless they have by chance had the opportunity for prior training. And they must continually update. The ethical obligation here is to their clients, the legal profession and society in general. In the collaborative lawyering process the paramount obligations are confidence, trust, competence and diligence. These duties are exercised differently depending on what ethical position a lawyer occupies. The traditional advocate has a duty to the client; a neutral assists all parties; the collaborative lawyer's duties go beyond the client and encompass that of the neutral so that the lawyer is now charged
with the responsibility to assist all parties to reach settlement.
There are unresolved ethical dilemmas for collaborative lawyers. The main one is that they may be restricted in the information that the collaborative lawyer can transmit to successor counsel in the event of litigation. Additionally, they may not be able to withdraw without materially prejudicing their client's case, and withdrawal may create problems concerning an ethical division of fees between the collaborative lawyer and successor counsel. Even in connection with the collaborative lawyering process itself there may be ethical problems concerning the providing of relevant information to the other side necessary to achieve settlement. Finally, the collaborative law structure enables the unscrupulous lawyer and client to participate for the sole purpose of deliberately removing an opposing counsel from the future litigation. An ancillary problem here is that the client's preferred lawyer may also be prevented from continuing to represent the client in the event of future litigation. It is a two-edged sword.
The future of collaborative lawyering seems bright, and its progressive short history bodes well for the future. Law school education can help by placing the same emphasis on problem-solving skills that it attributes to the litigated case. Law firms can help by establishing separate ADR departments and emphasizing continuing legal education in the area of collaborative lawyering. And the bar needs to encourage public dialogue and education in this approach.
This does not mean that "zealous advocacy" is restricted to the pursuit of litigation. The collaborative lawyer can become a "zealous advocate" by practicing effective negotiation and problem-solving skills. The emphasis of the legal profession needs to be shifted from winning at all costs to transforming relationships. Even if settlement cannot be achieved, transformation of a relationship will make what follows more peaceful and still potentially viable for a possible subsequent resolution. And if settlement is accomplished, the chances for full performance of the agreement will be improved.
For those interested in learning more about the process, I recommend the new book by Forrest S. (Woody) Mosten, "Collaborative Divorce [Handbook]: Helping Families Without Going to Court" (Jossey-Bass, 2009). While focused on divorce, the content nevertheless will provide an in-depth background to the collaborative lawyering process. The nine chapters provide information concerning the change in perspective, how the process works on its own and in conjunction with mediation and "unbundled" legal services, strategies used in constructing a collaborative agreement, the interdisciplinary approach to the process, informed consent and best practices, how to fully engage in collaborative practice and make it profitable, and taking the "collaborative walk" into the peacemaking arena.
A. Marco Turk is professor and director of the Negotiation, Conflict Resolution, and Peacebuilding Program at Cal State University Dominguez Hills, a mediator for the California Court of Appeal (2nd District), and a member of ARC. His column appears here on the first and third Fridays. He can be reached at firstname.lastname@example.org.