At the recent Collaborative Law Institute annual picnic, pigs were flying, Saints were swinging bats, and family law attorneys were engaging in the same cordial, respectful, and cooperative manner in which they choose to litigate divorce matters—collaboratively.

All right, the flying pigs were mechanical and the Saints were Minnesota’s minor league baseball team, but the lawyers were real!

Litigating a divorce can be an extremely adversarial process.  In a divorce proceeding, the courts become an arena for a “ritualized form of gladiatorial combat.” ¹  The parties do not work together, the lawyers do not work together, and afterwards, it is highly unlikely the parties will ever have a completely amicable relationship.

Collaborative law (CL), a new process currently used primarily in family law, allows clients and their lawyers to contractually agree to negotiate exclusively for settlement.  The lawyers sign a legal agreement that disqualifies them from representing their respective clients if the clients cannot settle and decide to litigate.  The main difference between collaborative law and conventional negotiation is that, instead of positional bargaining, the lawyers “work together toward the common goal of a mutually beneficial settlement for their clients.” ²  As a result, the adversarial element is removed from the process, but each lawyer remains an advocate for the  client’s interests during these negotiations.  Collaborative law aims to “provide a civilized process, produce outcomes meeting the needs and interests of both parties, minimize costs and increase clients’ control, privacy, and compliance with agreements.” ³   It is the new frontier to keep families out of the courtroom.  Is it also an avenue that litigators in other legal areas should explore?

William Schwab describes the collaborative law movement as the brainchild of Minneapolis family law attorney Stuart Webb, who in 1988 found himself in a state of “family law burnout” ⁴ and subsequently created a way to practice family law outside the adversarial system with settlement as the agreed-upon goal.  Joshua Isaacs identifies the hallmarks of collaborative law as “full and voluntary discovery disclosures, avoidance of even a threat of litigation throughout the negotiation process, the commissioning of neutral experts to participate in discussion, and a disqualification agreement.” ⁵ 
In the disqualification agreement, “the lawyers and parties explicitly commit to avoid litigation by providing that lawyers are disqualified from representing parties in litigation and must withdraw if either party chooses to litigate or even threatens to litigate.” ⁶  The agreement thus gives both clients and lawyers a great incentive to settle.  After the disqualification agreement is executed, they start an informal and cooperative discovery process that supports informed, interest-based negotiation until all issues are resolved.⁷  The process fosters respect for each client and their respective legitimate needs.⁸

Supporters believe collaborative law is an innovative new alternative dispute resolution (ADR) process that should be utilized as the primary means for resolving divorce disputes.   It may also be a sensible approach for the broader civil arena.  In order for this to happen, the legal and professional communities must promote the growth of the collaborative law movement. 

The Process of Collaborative Law

Initial Client Consultation

The collaborative law process involves multiple four-way client and attorney meetings to generate solutions to the issues presented by both parties.  But before the meetings begin, the client interested in the collaborative law process must meet with the lawyer for a consultation to focus on the client’s objectives and interests and help the client make an informed decision about whether collaborative law is the right option for him or her.   The lawyer will explain that the law is a guide, but that “the parties are free to fashion their own deal within certain limitations.” The attorney must provide clear and impartial descriptions of the process, and explain any alternatives to collaborative law before the client signs any agreement to proceed.⁹

Schwab emphasizes that the lawyer must clearly explain to the client that choosing the collaborative law process means that both parties agree to participate, in good faith, in the “full, honest and open disclosure of all potentially relevant information” instead of a formal discovery process.¹⁰  He notes that this creates a more conducive environment for settlement, and the parties sign a confidentiality agreement that the information disclosed specifically for the purpose of the negotiations may not be used in court if the process should break down.  

Isaacs spells out the importance of the disqualification agreement and the need to explain it fully to the client.  If the parties cannot resolve their dispute in the collaborative law process, their respective attorneys, and any neutral experts the parties utilize, are precluded from representing them in court.¹¹  The disqualification agreement provides “credibility to the parties’ commitment to reach a settlement without resorting to litigation.”  Without it, “the case is not a collaborative law case.” ¹²

The client needs to be informed that during the four-way meetings, the parties may bring in neutral experts.¹³  The use of neutral experts removes the dynamic of “dueling experts.”¹⁴  If the parties do not reach settlement, the neutral expert(s) may not participate in any subsequent litigation between the parties because the same disqualification agreement generally applies to the experts.¹⁵  The disqualification agreement eliminates the fear that information revealed in the collaborative law process will be held against the clients if they choose to go to court.

In the case of impasse, the first move is not necessarily to end the process and proceed to litigation.  In many jurisdictions, if impasse is reached during the collaborative law process, the parties have the option to utilize another ADR procedure to try to resolve the issue, such as mediation or non-binding arbitration.¹⁶  At that point, the collaborative law process has not broken down; the parties are pursuing other methods to resolve an issue on which they cannot agree.  If these alternatives do not successfully resolve an impasse, and the parties decide to proceed to court, the collaborative law process terminates. 

Isaacs again emphasizes the importance of understanding the process and what should be expected if the collaborative law process is terminated.  The individual would likely incur additional costs for a new attorney, new experts, and court fees, and must also devote substantial time to the case.  According to recent empirical studies on the collaborative law process, the chance that the parties will not settle and be forced to litigate is very slim; more than 95 percent of all collaborative law cases result in complete signed settlements.¹⁷  In most cases, “the potential benefit of obtaining a more satisfying outcome for the client outweighs the risk of not obtaining value for the cost of the collaborative lawyering process if the process fails.” ¹⁸

The Four-Way Meetings

Gay Cox and Robert Matlock explain the usual steps assuming both clients have agreed to the process: The two collaborative lawyers will contact each other before the first four-way meeting to share information and to help them create a comfortable environment that will promote settlement.

Most of the first four-way meeting is devoted to discussion of introductory and technical matters, including who will file the divorce proceeding, what information needs to be obtained, when the future meetings will take place, how the process will be funded, and any necessary clarification about the ground rules.  It is a good opportunity to discuss pressing temporary issues, such as childcare or housing.  The clients can also decide whether they want to involve neutral experts including, but not limited to, accountants, appraisers, or child development specialists.¹⁹  After the first meeting, clients typically gather various types of information to bring to the next meeting.  The lawyers document any substantive decisions that were made and draft any temporary binding agreements in case the parties cannot reach a settlement.²⁰

At future meetings, the clients will focus on specific issues, such as property division, parenting plans, and child support.  The clients and the lawyers work as a team to develop and evaluate options in order to resolve all of the clients’ issues. 

In the experience of one of the authors of this article, the four-way meetings may involve discussion of topics not apropos to legal arguments, such as fault related to a divorce.  However, the four-way meeting can be a good forum for venting topics that may be causing roadblocks to settlement.  Sharing of those issues in an atmosphere of cooperation, within the protective presence of the parties’ attorneys, can ameliorate those obstacles and clear the way to productive settlement discussions.

The Benefits of Collaborative Law

Collaborative law has many unique benefits for both clients and lawyers.  One of the most significant benefits is that it affords the clients a peaceful divorce process.  Tesler believes that if clients “generate and own the solutions to their disputes, post-resolution conflicts tend to be rare, and more readily resolved, than in litigated solutions to disputes.”  Similarly, Gregory Firestone and Janet Weinstein write that collaborative law helps promote better communication between the parties, allows the parties to create solutions, and helps the clients maintain a cooperative long-term relationship.²¹  

Another benefit of collaborative law is that it maximizes the clients’ privacy.  Instead of publicly filed motions and open court hearings, the clients have private, four-way meetings.²²  The disqualification agreement ensures this privacy, because where the parties cannot reach a settlement, the respective practitioners and neutral experts are usually prohibited from being further involved in the case.²³

The flexibility of the collaborative law process allows lawyers to be in charge of their calendars, a luxury litigating attorneys do not have.  Collaborative law practitioners can schedule meetings according to their needs; therefore, this type of law “can be practiced in tandem with other fields.” ²⁴  The parties also have the opportunity to work according to their own schedules, and not to those of the court.

The collaborative law process is significantly less expensive than litigation.  Clients can reduce costs by doing informal discovery themselves.  According to the Massachusetts Divorce Practice Law Manual, collaborative law costs one-third of the typical price of a traditionally litigated divorce.²⁵

A Response to Critics

A Burden on the Client?

The most controversial aspect of collaborative law is the disqualification agreement. 

Despite the potential limitations, the disqualification agreement is a significant external incentive for the lawyers and parties to settle.  If the parties reach impasse in traditional negotiations, lawyers are often too quick to resort to formal litigation methods.  One reason for that propensity is the financial incentive for lawyers to go to court.  The disqualification agreement helps to ensure that the lawyer is advocating for the client’s best interests, and not what will prove most lucrative for the attorney.²⁶

The disqualification agreement creates powerful incentives to search for a reasonable solution without litigation.²⁷  In the long run, working cooperatively and making concessions in order to reach an agreement will almost always be in the best interests of both the clients and anyone whose life is affected by their relationship.  Clients complete the process understanding how to reasonably resolve future issues with one another, which will help prevent any subsequent legal battles between them. 

An Ethical Process?

Critics of the collaborative law process question whether it allows lawyers to zealously represent the interests of their clients where the lawyers try to create a “win-win” situation that will satisfy both clients.²⁸  Most clients expect their lawyers to get them the “best possible deal,” no matter how it affects the other party.  In collaborative law, the other party’s interests are taken into consideration, along with the interests of the lawyer’s own client.  Critics claim this crosses an ethical boundary.     

This contention is without merit.  The lawyer and client have the power to determine what zealous advocacy means by deciding beforehand the scope of the lawyer’s representation of the client.²⁹   Model Rule 1.2 (c) states, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” ³⁰  This rule suggests that a lawyer can still zealously advocate for his or her client while limiting the scope of the representation to the terms of the collaborative law agreement, with the primary goal of pursuing settlement, as long as the client gives his or her informed consent to the process.³¹

A Necessary Approach?

Collaborative law provides the client with a legal advocate during the settlement process that he or she may not receive in family mediation.  Collaborative law provides each party with an attorney who can be an advocate and legal advisor; mediators, as neutral third-parties, cannot do this for the parties.  Many clients want a lawyer with them during the negotiations because they feel that they are weak at the bargaining table.  In a study on the success of collaborative law conducted by Julie Macfarlane, professor at the faculty of law, University of Windsor,  many of the clients interviewed said they chose collaborative law over mediation because they believed the presence of their lawyer would ease any feelings of intimidation and also give them greater emotional support.  If they felt uncomfortable sharing their thoughts, knowing that their lawyer could speak for them in those situations made the collaborative law process more appealing than mediation.³²

John Lande believes that mediation, especially without the presence of private attorneys, is only appropriate for a relatively small group of “high-functioning, low-conflict” spouses.  Otherwise there is usually a power imbalance between these parties a mediator alone cannot eliminate.  However, collaborative law is appropriate for the vast majority of divorcing couples.³³  Ultimately, clients want their lawyers by their sides to advocate for them through this stressful process, and it is possible for lawyers to be advocates while working together to reach settlement. 

The Collaborative Law Movement:  The Need for More CL Practitioners

The Past and Present

Lande and Tesler have traced the collaborative law movement.  Beginning in the late 1990s, practitioners in many North American cities developed local collaborative law training groups and practice protocols.  Practice groups were also formed all over the nation to train, network, socialize, and publicly identify local collaborative law practitioners. The practice groups were the main means to attract clients to the process, but without universal standards for the practice, these practice groups were on their own.   

In response, the International Academy of Collaborative Professionals (IACP) officially formed in 1999.³⁴  The IACP is an international interdisciplinary organization consisting of lawyers and related professionals who practice collaborative law.  The IACP created uniform definitions and standards of the collaborative practice, and also proposed a model code of ethics for collaborative law.  Its Web site (www.collaborativepractice.com) assists clients in locating collaborative law practitioners, and serves as a resource for collaborative law professionals.  The IACP Web site currently lists 170 affiliated practice groups in six different countries.  The Collaborative Law Institute of Minnesota has been in existence for several years and now boasts more than 150 members, including attorneys and other divorce and family law professionals.  It welcomes members interested in expanding collaborative practice to other areas of litigation.

Along with the emergence of numerous practice groups, the collaborative law movement has progressed through other avenues.  By 2000, collaborative law journals were started, prominent professors were publicly recommending the process, and the American Bar Association Section of Family Law published a collaborative law manual with practice forms.  In 2001, Texas was among the first state legislatures to promote collaborative law, enacting the first statute authorizing the practice.³⁵  In 2003, several law schools began offering courses on collaborative law.³⁶  Tesler claims that more than 5,000 lawyers had been trained in the collaborative legal model in North America by 2004.  According to Christopher Fairman, associate professor of law at Ohio State University, “Collaborative law is clearly the hottest area in dispute resolution.”37  

More Practitioners Needed

Collaborative law has the potential to benefit disputes in any area of law in which a continuing relationship between the parties is important.  But the full potential is not yet realized.  It has yet to become the primary means to resolve divorce disputes, and it has only recently been recognized in the legal world as a useful means to peacefully resolve disputes in the civil realm.  The collaborative law movement has laid a strong foundation, but it is up to the legal community to build upon it.

The number of collaborative law practitioners is small, in part, because it is a very new process, unfamiliar to many lawyers.  Another reason for the small number of practitioners is the stigma attached to ADR processes.  Some firms tend to put ADR processes on the back burner because they accumulate fewer billable hours in alternative dispute resolution procedures than in a case that proceeds to trial.

Some larger firms work with clients that believe litigating will be more beneficial to them than settling.  In those circumstances, these firms may not consider using a process like collaborative law because they do not want to lose these important clients. In addition, some lawyers plainly enjoy, and thus prefer, the adversarial context over an ADR process. 

But lawyers who are skeptical about the process should realize that collaborative law offers many benefits that the typical practice does not.  Collaborative law is unique in the sense that it is one of the only processes in which two lawyers actually work together in the same room with their respective clients, striving to reach mutual goals through an agreed process that explicitly precludes litigation.  The lawyers’ relationship with one another is a positive one because they are able to trust one another.  In the end, the parties are grateful for the assistance of both lawyers, another unique aspect of collaborative law.³⁸

Lawyers may fear they will be dissatisfied with their practice if they switch from litigation to an ADR process.  However, not only can a collaborative law practitioner continue practicing law, he or she is exposed to valuable new skills.  In order to become a trained collaborative law practitioner, a lawyer must learn psychological theory as well as some new communication skills and develop thorough mastery of negotiating theory and technique.³⁹  The collaborative law practitioner thus has the opportunity to fine-tune and utilize new skills that will make the job more intellectually stimulating and rewarding.

Collaborative Law in the Civil Realm

There is great potential for the application of collaborative law to various areas of civil disputes, especially where preserving a relationship is of paramount importance.  These could include medical malpractice cases, probate contests, and labor and employment disputes.40  Also, doctors and insurance companies are interested in the process because it affords them the ability to maintain continuity with patients and insureds, as well as stave off litigation. 

As for the business arena, many businesses have expressed reluctance to embrace the disqualification agreement.  But according to David Hoffman, a founder of the Boston Law Collaborative, “It might make sense for the corporation to have some collaboratively trained lawyers on their call list to see if the case can be settled collaboratively.  Then if a settlement cannot be reached, the company doesn’t need to break ties with its primary lawyers.”   Hoffman also notes that cases too small for costly litigation would be especially good candidates to be solved by collaborative lawyering.41

Many situations in the commercial and professional arena are well suited for the collaborative process.  Lawrence Maxwell includes among these: an employment termination case (where the typical litigation costs can be staggering and cause undue animosity and turmoil within the corporation if litigated), the failure of a vendor to timely deliver goods and the buyer and seller want to preserve their long-standing relationship, and the dissolution of business and professional partnerships—causing an emotional cost of litigation likely to permanently scar the parties and eradicate any future business dealings.  As another example, intellectual property issues otherwise highlighted in the public press can be more confidentially handled through the collaborative process.  Construction projects, prone to engender conflict between the various parties involved, necessitate prompt resolution to accommodate timely completion of the project, which litigation is hopeless to achieve.42

The civil area has a long-standing culture of litigation that will be slow to evolve toward the collaborative approach.  Rather than viewing disputes as battles to be won, lawyers must come to recognize that disputes require problem resolution.  Collaborative law organizations, such as the IACP and other organizations around the country, are seeking to expand to the civil arena, and are providing invaluable assistance to lawyers who are working to expand the process of resolving civil disputes.  As an increasing number of attorneys in various civil areas are trained in collaborative law, there will inevitably be a critical mass of attorneys such as has developed in family law.  This, in turn, will lead clients to collaborative law as an alternative to mediation and other ADR processes.43 

There is a call for more collaborative law practitioners because the future of this process depends on its growth in use.  Large firms may have reasons to avoid using collaborative law, but if they have it as an option for clients, it can help increase the firm’s rate of client satisfaction.  Not every client believes that litigation is the best option.  The privacy, efficiency, and peaceful nature of the process is very appealing to all types of clients.  As more lawyers utilize the collaborative law process, increasing numbers of lawyers will recognize its benefits.  

Conclusion

“The collaborative law movement presents an exciting opportunity for intentional development of legal culture, theory, and practice.” ⁴⁴  Proponents predict that by the second decade of this millennium, collaborative law will become the first resort for the resolution of family law disputes.⁴⁵  But the success of the collaborative law movement is contingent on the efforts of those who support the process. 

The collaborative law practice groups are working hard to educate their communities about collaborative law.  These methods to raise awareness about collaborative law have proven to be effective.  Collaborative law has now gained even more support from other professionals, such as religious leaders, mental health professionals, business and tax advisors, and even public service radio and other media, who have also begun to promote the movement.⁴⁶

The actual practice of collaborative law will also determine the success of the movement.  The satisfaction of the collaborative law clients will ensure collaborative law is recognized as a credible process.  And in turn, the satisfaction of the clients rewards the collaborative law practitioners and motivates them to continue advocating for the process.  With support, promotion, and effective practice by its advocates, collaborative law will no longer just have potential.  It will become a main method to remove clients from the war zone of litigation and involve them in a peaceful process to resolve conflict. 

¹           Pauline H. Tesler, Collaborative Family Law, 5 Pepp. Disp. Resol. L.J. 322 (2004). 

²           Zachary Z. Annable, Note, Beyond the Thunderdome—The Search for a New Paradigm of Modern Dispute Resolution:  The Advent of Collaborative Lawyering and Its Conformity with the Modern Rules of Professional Conduct, 29 J. Legal Prof. 157, 159 (2005).

³                      John Lande & Gregg Herman, Fitting the Forum to the Family Fuss, 42 Fam. Ct. Rev.. 280, 281 (2004). 

⁴                      William H. Schwab, Collaborative Lawyering:  A Closer Look at an Emerging Practice, 4 Pepp. Disp. Resol. L.J. 351, 355 (2004).

⁵                      Joshua Isaacs, Note, A New Way to Avoid the Courtroom:  The Ethical Implications Surrounding Collaborative Law, 18 Geo. J. Legal Ethics 833, 834 (2005).

⁶                      Lande & Herman, supra note 3, at 281.

⁷                      Gay G. Cox & Robert J. Matlock, The Case for Collaborative Law, 11 Tex. Wesleyan L. Rev. 45, 45-46 (2004).

⁸                      Lande & Herman, supra note 3, at 283.

⁹                      Isaacs, supra note 5, at 838. 

¹⁰                    Schwab, supra note 4, at 358.

¹¹                    Isaacs, supra note 5, at 834.

¹²                    Tesler, supra note 1, at 319.

¹³                    1 David Hoffman & Pauline Tesler, Alt. Disp. Resol. Prac. Guide § 41:6 (2005).  Types of neutral experts that could be used include a financial consultant (budgeting decisions, projection of long-term financial situations), a CPA (tax implications, business interest valuation), an insurance consultant (post-divorce insurance planning), property appraisers, a career/vocational consultant, a child development specialist, and communication skills coaches.

¹⁴                    Schwab, supra note 4, at 360.

¹⁵                    James K.L. Lawrence, Collaborative Lawyering:  A New Development in Conflict Resolution, 17 Ohio St. J. on Disp. Resol. 431, 436 (2002).

¹⁶                    Cox & Matlock, supra note 7, at 56.  In Minnesota, “If the parties to a collaborative law process reach impasse, they may use an evaluative or facilitative process to assist in breaking the deadlock, but they shall not utilize an adjudicative process.”  14 Minn. Prac., Family Law  § 25.6 (2d ed. 2005). 

¹⁷                    Pauline H. Tesler, Collaborative Law Neutrals Produce Better Resolutions, 21 Alt. To High Cost Litig. 1, 12 (2003). 

¹⁸                    Lawrence, supra note 5, at 436. 

¹⁹                    Lande & Herman, supra note 3, at 283.

²⁰                    Cox & Matlock, supra note 7, at 66.

²¹                    Gregory Firestone & Janet Weinstein, In the Best Interests of Children, 42 Fam. Ct. Rev. 203, 204 (2004).

²²                    1 Jay E. Grenig, Alt. Disp. Resol. § 21:53 (3d ed. 2005).

²³                    Lawrence, supra note 5 at 436. 

²⁴                    Cox & Matlock, supra note 7, at 59. 

²⁵                    Isaacs, supra note 5, at 836.  See also Cox & Matlock, note 7, at 52 (explaining that fees for collaborative law vary from $5,000 to $30,000, depending on how many issues are involved).

²⁶                    Annable, supra note 2, at 160. 

²⁷                    Cox & Matlock, supra note 7, at 67.       

²⁸                    Specifically, Comment 1 of Model Rule 1.3 states, “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  Model Rules of Prof’l Conduct R. 1.3 cmt. 1 (2005); see also Annable, supra note 2, at 164.

²⁹                    1 Hoffman & Tesler, supra note 13, at § 41:11.

³⁰                    Model Rules of Prof’l Conduct R. 1.2 (2005). 

³¹                    Schwab, supra note 4, at 364.  Further guidance is found in Comment 6 to Model Rule 1.2, which states, “A limited representation may be appropriate because the client has limited objectives for the representation.  In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.”  Model Rules of Prof’l Conduct R. 1.2 cmt. 6 (2005).

³²                    Julie Macfarlane, Experiences of Collaborative Law:  Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. Disp. Resol. 179, 213 (2004).

³³                    John Lande, Possibilities for Collaborative Law:  Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 Ohio St. L.J. 1315, 1325 (2003). 

³⁴                    1 Grenig, supra note 22, at § 21:50.

³⁵                    Tesler, supra note 1, at 334 (stating actual wording of the official statute). 

³⁶                    Lande, supra note 33, at 1327-8.

³⁷                    Jill Schachner Chanen, Collaborative Counselors:  Newest ADR Option Wins Converts, While Suffering Some Growing Pains, 92 A.B.A. J. 52, 53 (June 2006).

³⁸                    Cox & Matlock, supra note 7, at 63.

³⁹                    1 Hoffman & Tesler, supra note 13, at § 41:8. 

⁴⁰                    Chanen, supra note 37, at 55.

⁴¹                    Id. at 56.

⁴²                    Lawrence R. Maxwell, Jr., L.L.B, The Collaborative Dispute Resolution Process Is Catching On in the Civil Arena, presented to IACP Core Collaborative Practice Skills Institute in Dallas (June 2005).

⁴³                    David A. Hoffman, Collaborative Law in the World of Business, The Collaborative Review, 6:3 (Winter 2003).

⁴⁴                    Lande, supra note 33, at 1379.

⁴⁵                    Tesler, supra note 1, at 317. 

⁴⁶                    Cox & Matlock, supra note 7, at 58.