For more than two decades some of the most respected scholars in the field of dispute resolution as well as traditional, mainstream lawyers, have questioned the apparently intrinsic bias of litigation against co-operative problem-solving outcomes for clients. The continuing discussion focuses on the increasingly adversarial and uncivil character of much civil litigation, especially Family Law. What, if anything, can be done to change the characteristics of litigation, assuming that lawyers continue to play a crucial role as party representatives? In particular, what is the potential for changing the rules of the litigation game in a way that can change the culture of disputing and dispute resolution?
The recent growth of interest in collaborative family lawyering epitomises the deep discomfort with the traditional adversarial model experienced by many lawyers and clients. Collaborative law seeks to shut out litigation in favour of a formally contracted negotiation process directly involving both lawyers and their clients and sometimes incorporating other types of relevant professional expertise (eg: financial advice, forensic accounting, therapeutic and counselling services for both adults and children). The negative impact of adversarial litigation and the ensuing crisis of confidence in legal services is nowhere more apparent than in Family Law practice. The rate for divorce continues to be high. The last 20 years have seen a significant increase in the complexity of Family Law and the problems which are presented to Family Lawyers and experienced by parties going through divorce. The increase in the rate of divorce is matched by the increase in the level of acrimony. There is a growing awareness of the multiple impact of hostile pre-divorce and post-divorce relationships on children, effects undoubtedly heightened by protracted litigation.
Working in this environment takes its toll on lawyers also disillusionment and burn-out are legend among Family Lawyers. There is an appetite for a different way to practise law. The increase in alternate dispute resolution and the many different types of dispute resolution developed over the last 20 years speak for themselves.
Out of this general malaise (experienced by both clients and lawyers) there emerged a new paradigm of collaborative law, developed in the early 1990s by a Minnesota lawyer, Mr Stu Webb. Collaborative law has established itself as a viable alternative to litigation in the United States and Canada and is there now well regarded as a viable spanner in the toolbox of alternate dispute resolution options. Collaborative law is very much in its infancy in Australia.
What Collaborative Law Is
Collaborative law consists of two clients and two lawyers working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues. Each client selects independent collaborative lawyers. Each lawyers Retainer Agreement specifies that the lawyer is retained solely to assist the client in reaching a fair agreement and that under no circumstances will the lawyer represent the client if the matter goes to court. If the process fails to reach agreement and either party then wishes to have matters resolved in court, both collaborative lawyers disqualify themselves for further representation or in any way being involved in the litigation process. The lawyers assist in the orderly transfer of the case instead to adversarial lawyers. Experts are brought into the collaborative process as needed, but only as neutrals, jointly retained by both parties. They too are disqualified from continuing work and cannot assist either party if the collaborative process fails and the matter is referred to court.
The process involves binding commitments to disclose voluntarily all relevant information, to proceed respectfully and in good faith, and to refrain from any threat of litigation during the collaborative process.
The process moves forward via carefully managed four-way settlement meetings, preceded by considerable groundwork between lawyer and client and also between lawyer and lawyer. The lawyers job is challenging in addition to the usual identification, investigation and development of issues and proposals for settlement, the lawyer must work with the client and the other lawyer to anticipate and manage conflict and to guide the negotiation process. The lawyer also must encourage the client to take a considered and broad view in setting goals and priorities, and must teach the client how to use interest-based, rather than positional, bargaining.
Before any negotiation session, the collaborative lawyers generally meet and confer, sharing information that will assist them both in managing conflict and in setting the agendas for four-way meetings. The skill here is to manage agendas in such a way that the clients experience success during the early meetings, thereby building in the clients a sense of confidence, safety and competency that will serve them as more difficult issues are tackled.
An important element of collaborative representation is the lawyers commitment to manage conflict creatively. To do so effectively, the lawyer needs a whole new array of understandings and skills. Without this new toolbox, the lawyer runs the risk of promising more than can be delivered and disappointing clients. Given the unconscious, knee-jerk adversarial tendencies of some lawyers, this is easier said than done. The re-tooling needed to become excellent at collaborative law can be described in four stages:
- Re-tooling as to how the lawyer thinks, speaks and behaves;
- Re-tooling as to how the lawyer relates to the client;
- Re-tooling as to how the lawyer relates to the other lawyer, the other party, and other professionals; and
- Re-tooling as to how the lawyer conducts settlement meetings.
The best Family lawyers have always offered settlement-orientated representation where appropriate, in which discovery is voluntary and agreements are more common than trials. Collaborative law differs in several important respects from that pragmatic orientation towards settling cases. The differences arise from the profound effects that the formal written commitments made at the start of the process have upon the state of mind of the parties and their lawyers.
First, both parties entering the collaborative law divorce process commit to selecting lawyers on both sides who willingly bind themselves to pre-arranged ground rules. Ideally, the clients choose lawyers who have a history of working co-operatively and effectively as opposing or collaborative lawyers.
Second, all four parties sign a contract about how the process will be conducted, which remains in effect so long as all participants conduct themselves in good faith.
Third, a core element of the contract is that the process continues only so long as no one threatens litigation as a means of conducting negotiations, nor takes any steps to bring the matter into the courts litigation process.
Fourth, if the process breaks down, either because of bad faith or because one party or the other feels obliged to turn to the courts for relief, the lawyers must withdraw, and thereafter cannot represent either party against the other. Although departing collaborative lawyers will assist in an orderly transition to litigation lawyers, the financial and emotional cost of starting over with new representation is often significant.
Advocates of this model which adopts the guillotine whereby the contract stipulates that the lawyers must withdraw in the event that the collaborative law process ends, argue that such commitments become powerful carrots and often sticks encouraging immediate engagement in good faith problem-solving on all sides and discouraging the parties from lightly electing to litigate. They maintain that suspicion and paranoia decline dramatically this is because most of the process takes place in the presence of both parties, and because the explicit on both sides is that the collaborative law lawyers will withdraw if they have any reason to doubt the good faith of their clients.
Conversely, there are those who argue that such guillotine or extreme disqualification clauses are not necessary. Those who argue that such a disqualification clause is not necessary refer to independent research. The question as to whether the use of such a disqualification clause to ensure the commitment of both lawyers and clients to a co-operative negotiation process is essential to produce the co-operative characteristics as argued by their opponents, remains unanswered. Can the same results be achieved without a formal disqualification clause? For whose benefit lawyers or clients is the formal requirement for a disqualification clause? The effect of the disqualification clause is to place the litigation option in a locked cupboard so that if one party changes his mind about considering litigation, the key to the cupboard is rendered unobtainable by the requirement that the lawyers must withdraw from the case if it moves into litigation. Proponents of this view say that clients are often mystified by the lengths to which their lawyers believe they must go to remove the possibility of litigation, and wonder why lawyers could not simply be trusted to use their best judgment in this eventuality. Other clients clearly understand the commitment they are making to the collaborative law process and the risks this involves.
Potential benefits of the disqualification clause include a shared and equal commitment; a known constraint on future choices (creating certainty); the creation of a container for confidential, without prejudice negotiations; and the creation of some pressure to stay the course. However, the pressure to stay in the process may become extreme and inappropriate. There is a risk creating an entrapment similar to that created by legal fees in traditional litigation. After considerable costs and time involved in negotiation, it can be difficult to switch tracks and litigate – now that were this far, its hard to leave.
There are alternatives to the disqualification clause the question is whether these would achieve the same results. They include a formal co-operation protocol; a contractually agreed time-limited period of negotiation for litigation; or an agreed problem-solving negotiation protocol.
Evidence to date suggests that the collaborative process fosters a spirit of openness, co-operation and commitment finding a solution that is qualitatively different, at least in many cases, from convention lawyer-to-lawyer negotiations even those undertaken with a co-operative spirit. But all of this is not necessarily conclusive of the need for a disqualification clause. Instead, it may point to the need to agree to a particular period of negotiation outside litigation, rather than to an absolute commitment not to litigate.
Dr Julie Macfarlane from the University of Windsor, Canada, says:
I dont quite understand the need for such a strong bias against the collaborative lawyer representing a party in the case of a later litigation. I understand having this clause in the Agreement prevents any one of the parties to rush too quickly to litigate (or threaten to do so during the collaborative law process) and to commit to the collaborative process, but there must be some point at which all parties can recognise the collaborative law process may not continue. After the collaborative process has failed, I do not quite understand why the lawyers cannot then become the litigators. It becomes just another type of case and I would think having all the background information and knowing the other parties would make for a smoother litigation process.
The extent to which the disqualification clause is essential to the process or is one which can be abandoned or modified, remains to be resolved. Further research is necessary.
New wave collaborative lawyers in the United States maintain that in a collaborative representation involving difficult issues, there is often a distinct transforming moment when everyone around the table recognises that either the four of them must devise a solution, or the process ends and someone else will do the deciding. At that point, instead of the oppositional negotiations that characterise litigation-dominated settlement conferences, it often happens that both parties and both lawyers enter a creative problem-solving mode in which all build on the ideas emerging around the table.
Mediation too can be an effective dispute resolution mode but again, proponents in the United States of the traditional collaborative law model which encompasses the disqualification clause, maintain that mediation lacks the powerful problem-solving potential that is the structural core of collaborative law.
First, in mediation, a single neutral mediator manages negotiations and conflicts. Whether or not the clients have independent lawyers assisting them, it is not the job of either the mediator or the lawyers to work privately with a very unreasonable or upset client so that productive negotiations can resume. Such problems can sink a mediation permanently.
Second, the mediator is not able, as collaborative lawyers are, to deal well with one-sided delay, resistance, withholding of information, and similar problems that can impair the integrity and efficiency of the process. In collaborative law, the lawyers place their own integrity on the line, committing to not continuing to represent a client who refuses to abide by the good faith commitments contained in the contract.
Third, the single talent that lawyers most often bring into a dispute is creative problem-solving skill. With two lawyers working together to find mutually acceptable solutions, both clients benefit from the double professional talent engaged toward the same goal. For many lawyers, both aware and unaware of the collaborative law process, therein lies a significant potential for a conflict of interest and/or abandonment of the lawyers role and duty to their client alone.
Collaborative law is not a panacea nothing is. It is not for every client and it is not for every lawyer. There will always be clients who need to take their cases to court and there will always be lawyers ready and willing to assist them. For those lawyers who worry about the damage done to clients, their families, their lawyers and our communities from unthinking, unavoidable adversarial conflict in divorce, collaborative law is a model worth learning about.