Collaborative law, a waste of time ?

Date: February 11th, 2012 | Filed under: Mediation News

     By Katie O’Riordan, University of Limerick 

The LRC defines collaborative lawyering as ‘a problem-solving method of dispute resolution, used primarily for the resolution of family disputes, where the parties and their lawyers agree, through a contractual commitment, to resolve the issues without litigation.’[1] According to Horgan, it ‘is a new dispute resolution model in which each spouse retains a solicitor to help them to negotiate an outcome that they consider, following independent advice, to be fair and acceptable.’[2]

Wade emphasises the disqualification requirement, describing the ‘necessary requirement’ that ‘the lawyers and other helping experts contract never to act as litigators if the diplomacy is unsuccessful.’[3] The collaborative divorce model was launched in 1990, when Webb sought to replace the adversarial process with one leaving families feeling less bruised and has evolved to encompass much broader genres of law than that of family law alone. The growth of collaborative law since its inception would appear to indicate that it is to form an integral part of the future legal landscape. In May 2008, President Mary McAleese opened the Second European Collaborative Law Conference by stating that Ireland has endorsed Collaborative Law as its first choice for dispute resolution[4], the conference was told it is likely to overtake the adversarial system as the principal method of resolving many types of legal disputes here within ten years[5]. There are however a number of concerns surrounding Collaborative law and it is important to note, as the LRC do, that, ‘ADR is not a panacea for all disputes, it has its limitations and is not always appropriate[6].’

Strickland comments that, ‘there is no strict consensus as to how the process should work’, it is flexible by nature, allowing parties to shape the negotiations as they see fit[7]. There are however, a number of general aspects to the collaborative law process. Parties are initially screened for suitability and must be willing to fully participate in the process in an open and honest manner, and there cannot be any instances or issues regarding abuse or safety of any party to the process. At the outset, parties agree upon and sign a participation agreement detailing how they will proceed. The ‘unique’[8] disqualification agreement is referred to by Strickland as ‘the only absolutely essential element of collaborative law’[9]. It requires that in the event settlement cannot be reached and the parties proceed to court, any lawyers and experts involved in the collaborative law process must withdraw and are disqualified from representing the clients in any future proceedings arising from the situation. Webb believes it is the disqualification clause that makes the process work, providing a ‘safe and effective environment for settlement’, removing the fear that information disclosed may be used in future litigation.[10]   Healy adds that the inconvenience this provides results in the added advantage of ‘discouraging parties from exiting the settlement process prematurely’, however it also comes with the inherent danger that it may force parties to unwillingly settle. The process is centred around four way meetings of clients and lawyers, based on a premise of full and open disclosure, in a confidential setting, with both parties working together toward a solution. The final product, upon success, is generally a collaborative law settlement agreement that becomes a court order.

Horgan differentiates collaborative law from the traditional adversarial system as a system where ‘each party works toward solving their legitimate needs rather than taking up positions that cannot be reconciled.’[11] As Strickland states, it ‘is not subject to the demands and limitations of the court and other jurisdictional rules’, it is a more casual and amenable to parties’ interests.[12] Walls places particular emphasis on the interest style of bargaining attributed to collaborative law within which ‘the legitimate needs of both sides are acknowledged and everyone works to try to achieve those needs.’[13]Collaborative law comes under the umbrella of Alternative Dispute Resolution, and forms part of what many refer to as the ‘toolbox of ADR’, it is however its own separate discipline within ADR. It differs from mediation in that a neutral is not present during negotiation sessions, unless agreed to by third parties. Parties may participate in Mediation without counsel present; however this is not generally the case in collaborative law. Lawrence distinguishes collaborative law from mediation by ‘the increased commitment to and incentive for settlement’[14]. Strickland highlight an important advantage of collaborative law, in that, unlike in mediation, a collaborative lawyer may remove a difficult client from the negotiation table and work with that client on getting back into the process.[15] Collaborative Law encourages client participation as opposed to traditional settlement negotiations, the pace and subject of which are largely controlled by lawyers. Macfarlane refers to the ‘game-like nature’ of traditional settlement negotiations being greatly reduced during the process of collaborative law[16].

There are numerous advantages to collaborative lawyering as an alternative method of dispute resolution, many of which crossover from other forms of ADR. There is less escalation of conflict, with the possibility of the preservation of long-term relationships far more likely, along with, in general, considerable cost and time benefits. A sense of client empowerment, a sense of being listened to and more informed decision making often results in more amicable and suitable settlements with a higher compliance rate. The LRC refers to as an ‘undoubted advantage’, ‘the ability to get speedy access to a process that may produce a satisfactory outcome for the parties in a short space of time’, referring to long delays in the court process as ‘clear barriers to justice’[17]. However, there exists, the possibility that the collaborative law process may breakdown and parties return to court, resulting in possibly an even longer process. The same risk is inherent in relation to costs, however, according to Simon, collaborative law typically costs clients one-tenth to one-twentieth of what a normal in court case costs’[18] Given that collaborative law takes place outside the court settings, it also has a strong potential to alleviate some of the strain on judicial resources. The Commission concludes that ‘careful and appropriate use of ADR processes is likely to reduce the overall financial costs of resolving disputes.’[19] The importance of this is underlined by the European Commission in its statement that ‘Access to justice is an obligation which is met by the Member States through the provision of swift and inexpensive legal proceedings.’[20]

 

Collaborative law is, as the Law Reform Commission point out is ‘not a panacea for all disputes’[21]. Firstly the suitability of Collaborative law must be established for the situation at hand, as Rack points out, ‘Even those promoting collaborative law recognise its limitations and conclude that it may not be the best choice for every lawyer, client or dispute.’[22] Where illegality is alleged or where a significant point of law is involved, the traditional channels will be the only avenue of solving the dispute. Collaborative Law is wholly unsuitable in cases where there are issues relating to domestic violence or the safety of a party or a child in the matter. There exists in Collaborative Law the risk that proceedings will be dominated by a dominant party, however, arguably, there exists some protection the screening process and in the presence of counsel, albeit in an advisory position. The flexible nature of the process brings with it the intrinsic risk that lawyers ‘conduct the process as they see fit and stray from the benefits collaborative lawyering supposedly provides.’[23] Wade appears to contest the apparent success rates of Collaborative law, ‘It is arguably only suitable for a very small client group, and therefore self-selects those conflicts which are ‘easier’ to settle, and leaves more difficult or escalated conflicts to other service providers.’[24] Nonetheless, even if one accepts Wade’s point, it may be argued that collaborative law still remains successful in those cases so-called ‘easier’ cases, keeping them out of the traditional adversarial system. Wade raises an interesting possibility that, ‘collaborative lawyering is a skilfully marketing dispute resolution services to a new group, who formerly exited the pyramid of conflict without professional services.’[25] This situation however would appear far more vulnerable to abuse by a dominant party than even the most forthright critic of collaborative law could argue.

Walls states, ‘The adversarial system is not best suited to the complex dynamics of family law work’[26]. As Matthews states, it has long been recognised that ‘family law litigants face a particularly hard road through the legal system,’ and ‘it does little to resolve conflict in families’ lives but rather compounds and increases that conflict in many cases.’[27]The adversarial system is based on a lawyer striving to highlight the differences between parties, promoting the position of their own client while attacking that of their adversary, resulting in an increasingly polarised position. As Walls states, ‘It is becoming increasingly clear that the courthouse is not the place to resolve family disputes and restructure family relationships.’ [28]The LRC refer to the ever rising and increasingly diverse number of cases arising in the area of family law. The LRC recommend that attendance at an information session on family dispute resolution processes, including collaborative practice, should, in general, be a statutory mandatory requirement in family law cases, with participation remaining voluntary. The rationale behind this is that very often, the lack of participation in ADR is a lack of awareness of the existence or availability of any alternatives or understanding of how these alternative options work. Importantly, the LRC allow for exceptions to arise in instances where there are issues of domestic violence or safety regarding a party or a child in the matter, ensuring the welfare of parties remains paramount. Collaborative law is however, by no means suitable in all family law cases, as Walls points out, family law clients are often coping with waves of strong emotions, and collaborative law is a process ‘based on reasoned judgment and realistic aspirations’, looking to the future rather than the past, and dependent on ‘honesty, cooperation and integrity of all the participants’ for its success[29].

Healy proposes that collaborative law may be a settlement process within which children are given a ‘mechanism to be heard’.[30] The issue is raised in the context of the proposed constitutional amendment on children’s rights and Ireland’s obligations under Article 12 of the United Nations Convention on Children’s Rights. As Shannon states, the ‘absence of a facility for children in Ireland to articulate their views, particularly where a case is settled in advance of the hearing, is a serious problem’.[31] Healy is of the opinion that collaborative law could serve to fill this void, as the ‘first settlement process with a specific regard for hearing the voice of the child in family law matters in a non-adversarial, non-judgemental way.’[32] The Collaborative law process provides the opportunity to work alongside a child specialist who may help the child through the separation process. This includes children in the process, making them part of the solution, avoiding the potential scenario outlined by Healy, where a child may feel, through a lack of information and consultation, that they ‘are part of the problem’.[33] 

Collaborative law however is not confined to the remit of family law, and is increasingly being used in other areas of dispute resolution, in particularly on the international front.[34] The IACP was originally founded in the mid 1990s as an organisation of family lawyers and professionals. As the practice of collaborative law continues to expand beyond the family arena, the IACP has expanded its scope by establishing a civil collaborative committee.

If collaborative law is to form a central part of the future legal landscape, it is essential for its maximum productivity that lawyers and other professionals engaged in the process are suitably trained. Wade describes collaborative lawyers as ‘skilled diplomats’ that, ‘cannot switch hats to another role as advocates or warriors.’[35] Strickland raises the concern that ‘the model is not clearly defined and may not have in place inherent safeguards for both clients and attorneys’.[36] However, proponents of Collaborative Lawyering strongly disagree, arguing that although the style is different, the primary and fundamental fiduciary duty to a client still remains. A lawyer working in the realm of collaborative law is performing in a much different professional role than when acting in the traditional role of representing a client. Indeed, Menkel-Meadow argues for separate ethical values for Alternative Dispute Resolution practitioners since their underlying values differ significantly from those premised on an adversary culture.[37] Tesler emphasises that lawyers may be unprepared through law school education and practice to meet the demand of collaborative law practice. [38]There has been significant progress in the training provided for those working in the collaborative law spectrum in Ireland. The Association of Collaborative Practitioners is the main organisation for collaborative practitioners in Ireland, and has been involved in the collaborative legal training of professionals in Ireland. According to Smyth, ‘Approximately six hundred lawyers have been trained in Ireland in the collaborative model by Tesler[39], who was at the forefront of the movement, along with Webb. It is important for the effectiveness of collaborative law that professionals involved be trained in both the model itself and the skills required for working within such as system, a step back from what Walls refers to as ‘the gladiatorial role’ traditionally played by lawyers[40]. Wade highlights the benefit of collaborative lawyering for the wider legal profession as a whole, ‘collaborative lawyering will have a spill-over effect into other areas of legal practice. Lawyers will incorporate some of the diplomacy skills back into their traditional practices.’[41]

Conclusion

Former US Chief Justice Warren Burger has stated, ‘The obligation of the legal profession is to serve as the healers of human conflicts. To fulfil this traditional obligation means that we should provide the mechanisms that can produce an acceptable result in the shortest possible time with the least possible expense and a minimum of stress on the participants.’[42] Collaborative law is clearly forming part of the way forward, both domestically and internationally; it has grown significantly since the early nineties, and has been predicted to overtake the traditional adversarial system within a decade. With such exponential growth however, it is important to bear in mind that collaborative law, and indeed all forms of ADR, do not represent a panacea for all forms of dispute resolution. There are instances in which collaborative law is unsuited to the case at hand and it must always remain of paramount importance that justice be done. On balance however, the disadvantages certainly appear to be outweighed by the potential benefits, and none appear so detrimental that they could not be worked through over time, leaving the process certainly preferable to the traditional adversarial route, in particular in family law disputes. In order to maximise the potential of collaborative law, it is fundamental that professionals receive proper training, both in the model itself, and methods of practicing. Strickland is of the opinion that the popularity of such training sessions is in itself indicative of the ‘vitality of the movement’.[43] Tesler concludes, ‘no other dispute resolution model matches collaborative law in its ability to manage conflict, elicit creative ‘out of the box’ solutions and support parties in realising their highest intentions for their lives after the legal process is over.’[44]

 

 

 

 

Bibliography

• Law Reform Commission Report on ADR: Mediation and Conciliation (2010)
• Law Reform Commission Consultation Paper on Alternative Dispute Resolution. (2008)
• Horgan, ‘Let‘s Work Together’ (June 2005) Law Society Gazette.
• Walls, ‘Collaborative law a new and better way’, Sunday Business Post (25 March

2007)

• Abney, Sherrie R., “An Entire Nation Endorses Collaborative Law As Its First Option, Continuing A Trend Toward Acceptance Around The Globe,” Vol. 17, No. 3  Alternative Resolutions 18
• Wade, ‘Thoughts and Themes, Collaborative Lawyering – Some Preliminary Thoughts For Australia’, (January 2000) Bond Dispute Resolution News, Vol. 16.
• Macfarlane, Julie “The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law” (2008) J. Disp. Resol. 61
• Green Paper on alternative dispute resolution in civil and commercial matters. COM/2002/0196.
• Tesler, ‘Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation.’ (Section of Family Law, American Bar Association 2001)
• Healy, Connie. “ The Collaborative Process: A “Mechanism” to Hear the Voice of the Child”  (2010) 4  Irish Journal of Family Law 102
• K. Strickland, Putting “Counselor” Back in the Lawyer’s Job Description: Why More States Should Adopt Collaborative Law Statutes, (2006) 84 N.C. L. REV. 979, 986
• Barbara Smyth, ‘Collaborative Law’, (15 July 2009), <http://www.acp.ie/images/stories/pdf/collaborative_law.pdf>
  • S.G Webb and R Ousky, ‘The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower Costs and Happier Kids – Without Going to Court.’ (New York: Penguin, 2007)
  • http://eurlex.europa.eu
    • www.collaborativepractice.com
    • http://www.rte.ie/news/law
    • www.irishtimes.com
    • www.acp.ie