Collaborative Law, or Collaborative Process as it is sometimes called, is a process for resolving disputes by encouraging settlement. Many people have heard of it as a way to resolve divorces, but it also works to resolve civil disputes as well, sometimes with variations tailored to the needs of a particular case.
- What is Collaborative Law? Collaborative Law first arose as a method for sparing parties to divorce cases some of the hostility and expense of the process by keeping respect in the picture. Practitioners came up with a set of steps that increased the likelihood of interest-based negotiation (rather than negotiation based on staking out extreme positions and haggling to reach a middle ground) and cooperative problem-solving between squabbling spouses, who often enough have an ongoing childcare or other relationship to preserve. While not all the techniques translate to all types of cases, they can make the process of resolving a civil dispute significantly more efficient.
- How Does It Work? The Collaborative Process starts with the parties and their attorneys agreeing in writing to seek a resolution of their dispute outside the court system. The parties and counsel establish the parameters of their discussions, which often include a set number of initial meetings, the joint retention of any neutral experts needed, the inadmissibility of any of the settlement discussions in court and a joint commitment to exchange relevant information freely rather than playing discovery games.
- How is the Lawyer’s Job Different? In litigation or most commercial mediation, the lawyer takes the lead adversarial role as the client’s primary persuasive mouthpiece. He also utilizes the tools of the system to weaken the opponent’s side and strengthen that of his client. In the Collaborative Process, lawyers advocate for clients by supporting them in a problem-solving mode. For transactional lawyers, this is not as much of a leap as it is for litigators. For that reason, special collaborative training is best, and in fact it is starting to reach the law school curriculum.
- Lawyer Disqualification. To keep the focus on the conference room instead of the courtroom, in a pure Collaborative case the lawyers agree to withdraw in favor of litigation counsel if the case does not settle. Since this is not always practical, variations have evolved including the lawyer’s stepping aside but his firm not being disqualified. In this model, an in-house counsel is considered a client and not asked to withdraw from representing her company! Again, this is not as much of a leap for transactional lawyers.
- Facilitation. In many cases, a specially trained Collaborative coach-facilitator assists in managing the process and party communications.
- How Negotiations are Conducted. In a non-Collaborative case, lawyers often carry much of the load in offline negotiations or, for a few brief moments, in court. In a Collaborative case, most of the work takes place in joint meetings with agendas carefully crafted to advance the settlement negotiation process and encourage interest-based negotiation. The parties themselves are actively involved in this creative problem-solving exercise.
The Collaborative dispute resolution process is a highly structured approach to settlement intended to resolve cases faster, with less disruption on both sides, with full confidentiality and often at significantly less expense than protracted litigation. The Collaborative approach encourages the parties to move beyond entrenched positions while giving them the flexibility to design a customized settlement beyond the limited range of solutions available in court. It is a different, less hostile way of approaching a disagreement even once lawyers have been brought in.