Why are only family lawyers using collaborative law?
The year was 1990, and Stu Webb, a Minneapolis family law litigator, had had enough. He was burned out after 26 years of practice. He wanted to quit the law in an outrageous manner (his words) and came up with something that was contrary and antithetical to everything he had ever been taught as an attorney.
He decided to work with the opposing lawyer to resolve a particularly difficult divorce case.
He approached the case by sharing information and decided if he and opposing counsel could not settle the matter, he would not continue on to litigation.
The notion of separate settlement counsel who does not litigate was the beginning of what Webb called “collaborative law.” As the model evolved, neutral parties were brought in to assist with mental health/coaching and financial matters as needed, and other experts such as real estate appraisers were brought in as well. Some have described the collaborative practice as a structured negotiation, but I believe that misses most advantages of the team approach: a process based on interest and goals exploration; a nonadversarial relationship between attorneys; and voluntary, full disclosure of all relevant information without formal discovery.
While collaborative law has been mostly limited to the family law arena, the system is easily applied to other areas of litigation and even pre-litigation, allowing parties to maintain relationships and save money and time while providing for a more holistic solution to their problem. Civil cases that benefit from collaborative law include construction claims, disputes between business partners, and wills and estates matters.
The first time I heard the term “collaborative law” from a fellow business attorney, I was both intrigued and puzzled. As we all know, working together in law school is not encouraged. During my two MBA/JD classes, I saw that MBA candidates were well-versed in teamwork while law students did not play well as a group.
It’s well-known that a tiny percentage of civil cases go to trial. The most recent Civil Justice Survey of State Courts’ reporting of civil data is from 2005, but it’s unlikely to have changed much. Of the approximately 7.4 million claims filed in the across the U.S. in state courts that year, only about 3% actually went to trial. This translates into an opportunity for matters outside family law to be resolved using collaborative law, amongst other conflict management approaches.
Court is the ultimate of adversarial situations, resulting in broken or strained personal and business ties after years of haggling over civil procedure, including discovery, witnesses and more. Often, the alternative dispute resolution choice defaults to mediation. However, mediation also may not produce sustainable relationships: Specifically, interest-based negotiations separate the people from the problem and avoid proverbial baby-splitting but often do not delve into the root cause of the issues. Therefore, in situations where parties will continue to work or coexist, conflict may return.
The collaborative approach in nonfamily matters often uses neutral professionals from outside the law who assist with communications and navigating the technical supporting information, most often financial. While a collaborative lawyer represents each party, there is a joint effort amongst the team to identify and understand the parties’ interests plus underlying values and goals while opening up new avenues for communication and improving problem-solving skills. This applies for workplace, contractual, estate, business disputes or divorces, and other civil matters.
Full transparency and disclosure
To support real collaboration, all parties must provide full disclosure of facts and circumstances, all without formal discovery. Like mediation, collaborative law is confidential, and the attorney-client privilege applies. There are no discovery games, nor is information withheld; the professionals can facilitate or guide the parties to a resolution with all the facts and circumstances laid out.
Courts are clogged, the stop-and-start of litigation over years is inefficient, and with lawyers plus experts on both sides, professional fees can skyrocket. When collaborative team costs are compared to those of a mediator, parties may raise the concern of each of them hiring a lawyer plus paying for neutrals. However, for example, the use of one financial professional for any valuation instead of two expert witnesses saves money. Also, the full disclosure of all relevant information streamlines the defined process and eliminates the back-and-forth between attorneys.
Further, time is money, particularly for noncivil matters where a dispute may leave one party without payment for years if the matter goes to court.
As Webb planned, if the case cannot be resolved within the collaborative team, by statute none of the lawyers involved can represent the client in future litigation on the matter. For example, in Washington state, the lawyer and associated lawyers in the firm are disqualified from any related court proceeding.
For Webb, this was an advantage; he did not want to go to court anymore, and there are many former litigators who share that goal. If the process does not work, then the client is not lost, just that matter’s follow-on litigation, and this is agreed upon upfront. Also, in speaking with several collaborative lawyers, the success rate is high: About 80% of cases resolve, and another approximate 10% settle without a trial.
Why is collaborative law still mainly family law?
Although there are thriving family law practice groups that embrace the collaborative approach, use within other civil matters in the U.S. remains somewhat limited. Scrolling through the International Academy of Collaborative Professionals listing of providers, divorce and family practices dominate. Further, the July 2010 IACP practice survey reported that only 3% of the 933 reported cases were nonfamily law matters.
However, both the IACP the Global Collaborative Law Council are now providing education and information for nonmatrimonial matters, and anecdotally the number of civil cases using collaborative law is on the rise.
Collaborative is a shift for attorneys
Lawyers are not trained to collaborate in school, and as litigators, the experience as a zealous advocate is adversarial. In my collaborative and mediation courses alike, we discussed having to unlearn law school in order to be an effective collaborative team member.
In summary, a shift from the win/lose approach requires:
- • Stepping away from ego-driven behavior.
- • Avoiding being directive and adversarial.
- • Understanding how to listen actively and to learn.
- • Suspending judgment and not jumping to problem-solving.
- • Avoiding snap decisions and making assumptions.
- • Emphasizing relationships rather than transactions.
Not in the statutes
Like many states, Arizona’s statutes provide for a collaborative process for only family law matters. However, a state law for nonfamily civil collaborative process is not necessary: Settlement lawyers can contract for any dispute resolution process, including a collaborative law approach. In fact, Washington state’s Uniform Collaborative Law Act adopted a broad approach for all civil matters in 2013, yet the approach outside of matrimonial matters has not yet seen widespread use.
That said, what is best for clients? It’s difficult to fathom that a multiyear trial serves most people’s needs, whether it’s family law or a commercial matter. The results from the 2010 IACP Client experience survey indicated that 75% of collaborative law clients were extremely or somewhat satisfied with the process. Setting aside the drive toward litigation for an efficient and effective collaborative approach is client-centered.
In addition, the collaborative process builds conflict management capacity and is completely confidential, therefore avoiding unwanted publicity. With a team comes great wisdom, and the collaborative approach allows clients the space to achieve resolution and maintain the future relationship.
A thank-you to both New York City civil attorney Marc Sheridan of Markus & Sheridan and Washington state family lawyer Joanna Roth of the Family Transition Center for chatting with me about collaborative law in a nonmatrimonial setting. Anyone interested in continuing the conversation, please reach out @maryjuetten on Twitter.
Mary Juetten has dedicated her more than 35-year career to helping individuals and small businesses achieve and protect their success, founding Traklight, software for businesses to identify and manage legal issues and risk. Mary is a professional accountant, mediator, and lawyer, serving Washington and Arizona as Juetten Law. Mary’s passion is improving access to justice with innovation and technology. Her role as technology director at Rincon Resolutions blends all of her experience and training to support the development and delivery of online conflict management services.