Collaborative Practice: Another Alternative

By Diane D. Hitzemann, Esquire
Mediator and Counsellor at Law

History

In 1990, Stuart G. Webb had practiced family law in Minneapolis, Minnesota, for almost 20 years.  A successful civil litigator in his early career, he also experienced trauma in his personal life; the result was a transition to family law with a commitment to helping families.  Over time he began to get discouraged with the effect he saw the legal process having on families.  He determined that the court system, conceived in the Middle Ages and developed to handle property disputes in the 18th century, was ill-suited for family disputes in the 21st century.  He became a trained mediator, but discovered that the mediation process was not sufficient for many parties who required a lawyer to support and work with them in settling the divorce issues.  Webb seriously considered leaving the practice of law.  He decided that he would no longer participate in an arena that caused couples and children to become casualties, forcing them to pay a price financially, emotionally, and socially.

Following a particularly contentious case in early 1990, Webb recalled those occasional times, usually occurring by accident, when the dynamics in a family law settlement created a climate of positive energy where creative alternatives were presented.  In that context, everyone contributed to a final settlement that satisfied all concerned, and both clients and lawyers left feeling satisfied and energized.  He developed the premise that when it was possible to remove the trial option from initial consideration, he could deliberately create a settlement climate of communication and trust – that a group of lawyers could be created who would agree to take cases, on a case-by-case basis, for settlement only.  There would be an understanding that if it were determined at any time that settlement was no longer an option, the attorneys from both sides would withdraw from the case, and the parties would retain new attorneys to seek final resolution.  He called this settlement model “collaborative law” and the lawyer a “collaborative lawyer.”  Webb removed court from his practice effective January 1, 1991, and his process has been honed into what is now termed the collaborative practice of law.

Collaborative Practice

In collaborative practice the parties in legal conflict retain trained collaborative lawyers in order to resolve their differences and attain legal resolution to the conflict by engaging in client-centered dialogue in a safe environment.  The fundamental basis of the process is the commitment by all parties and counsel to not litigate the dispute.   Settlement by agreement is the sole purpose and goal of the legal representation; interest- based, cooperative negotiations replace adversarial maneuvering, and litigation is seen as a last, rather than a first, resort.  In the collaborative approach, the lawyers and clients must learn to leave their anger and resentments at the door and come to the process in a spirit of good will and motivation to work things out.  The role of the lawyers is to help their clients arrive at a fair settlement and get on with their lives.

The primary objective of the collaborative process is getting parties from dispute to resolution efficiently, with as little financial and emotional damage as possible, while securing an agreement which addresses their true interests.  It is based upon a problem-solving model rather than an adversarial model.  The focus is on the future rather than the past, and on rebuilding relationships rather than finding fault.  Parties are encouraged to communicate openly and respectfully – to hear and understand each others’ needs and interests, and to come to agreement based on those needs and interests, rather than on their individual positions. 

The lawyers are trained dispute resolution professionals who work as guides, advisers, legal counselors, and facilitators.  Solutions are worked out in direct four-way negotiating sessions with clients and lawyers participating; the lawyers do not control communications or outcome.  Collaborative lawyers play an important role in setting a respectful tone of positive energy – they are responsible for “modeling” appropriate behavior which can result in good decisions.  Financial experts and mental health/child specialist consultants are brought into the process as neutrals, not hired guns.  All participants say what they see and believe to be true in a transparent process, which empowers the clients who will need to live with the results to have ultimate responsibility for the outcome.

The Participation Agreement

The cornerstone of the collaborative process is the binding Participation Agreement signed by all parties and counsel.  Elements of the Participation Agreement include the commitment to a good faith, interest-based, and respectful bargaining process; the voluntary, early, complete, and continuing disclosure of information; and joint retention of all experts as neutrals.  It allows no threat of or resort to court proceedings by parties or counsel during participation in the collaborative process, and absolutely disqualifies the lawyers and all neutral experts from ever appearing in court in connection with the dispute.  The lawyers also commit to withdrawing from the representation of a client known to be acting in bad faith.

Benefits of Collaborative Practice

Multiple benefits to the parties result from using the collaborative process. The transparent negotiating process results in creative win-win solutions; parties and counsel say what they see and believe to be true as they reason with one another, as opposed to enduring a sequence of two-way communications between lawyers who control the exchange of information for strategic advantage.  Any cooperative possibility can be used in crafting creative solutions without the litigation constraints of limited jurisdiction, limited time, and limited attention.  The destructive escalation of adversarial hostility can be eliminated, maximum privacy of the parties is maintained, and the cost is typically much less than litigating the same set of issues.  Most importantly, parties control the quality and shape of the outcome.  They own the resolution of the dispute, because results are always consensual – no third party dictates dispute resolution.

Conclusion

As the newest form of dispute resolution, collaborative practice combines the problem-solving focus of mediation with the advocacy and counsel of traditional representation.  Collaborative practice groups have been formed to promote and expand the model in more than 35 states, Canada, Australia, and many European countries.  The International Academy of Collaborative Professionals (IACP) has been established as a worldwide interdisciplinary non-profit organization dedicated to transforming the practice of dispute resolution.  Lawyers and parties alike are drawn to Stu Webb’s vision – to preserve family bonds and relationships in the process of a life transition.