Collaborative Law Deserves a Place at the Table

by RICH CASSIDY on MARCH 26, 2010

The Collaborative Law movement is some 20 years old, yet remains unknown to many lawyers and clients. The idea is relatively simple: the clients, and their lawyers, commit themselves to trying to settle a dispute on a cooperative basis. To do so, they sign what’s sometimes called a “four party agreement,” or “participation agreement.” It commits them to making an effort to reach an agreement, and underlines that commitment by agreeing that in the event of failure, the lawyers will not go to court to litigate the matter.

Negotiations proceed at four party meetings and involve direct communications among all the participants. Of course, sometimes such efforts fail. The parties then would need to start (or continue) the litigation process with different lawyers, presumably adding expense and delay to the process. By committing themselves to such a process, the clients have insured that lawyers participating in the negotiation have every incentive to make it work. If it fails, they will not get a bonus in terms of fees for going to court.

Most Collaborative Law activity has occurred in family law cases, and obviously, it has particular appeal in disputes like divorce, where the parties often need to preserve a good relationship as they leave a marriage — or even build a better one — for the sake of their children. But it is by no means limited to family law cases.

Plainly, it’s not a dispute resolution technique suited to every dispute or every client. For that matter, it’s not an approach that every lawyer would be willing to undertake.

Collaborative Law took a step towards the mainstream several years ago, when the Uniform Law Commission began drafting a “Uniform Collaborative Law Act.” The Commission, (NCCUSL Home) a 118 year old law reform organization also known as the “National Conference of Commissioners on Uniform State Laws,” is made up of lawyers, judges, and law professors appointed from each of the states and territories. It develops carefully crafted legislative proposals for state law, primarily in areas where it is useful if the law from one state to another is the same or similar. It is most well-known for the Uniform Commercial Code, which is now the law in virtually every U.S. state and territory and is being adopted in other countries as well.

The Commission proceeded as it usually does, appointing a drafting committee made up of Commission members, a reporter, (a legal scholar charged with doing most of the actual writing), and bringing interested stakeholders to the table to work through the issues and come up with a consensus draft.

The committee’s draft was presented at two annual meetings of the Conference, and read, as is the usual practice, line by line, to permit each commissioner in attendance to question, comment, and propose amendments. The Commission adopted the Act by the unanimous vote of the states and territories present at its Annual Meeting in Santa Fe, New Mexico, in July of 2009.

Uniform acts are traditionally presented to the American Bar Association House of Delegates for its approval. The Uniform Collaborative Law Act was placed on the agenda for the House of Delegates meeting in February of 2009 in Orlando Florida.

In the days before the meeting, the ABA’s Litigation Section announced its opposition to the Act, and hot and heavy debate about whether the Association should support the Act became the lead topic of the House of Delegates listserv. Once the meeting in Orlando began, caucuses of various groups of delegates met and discussed the Act and became apparent that the Act would be the most controversial issue on the House’s agenda.

Arguments against the Act seemed to fall into three basic categories. First, it was suggested that some clients would try to game the Act by engaging in a Collaborative Law process for the purpose of disqualifying their opponent’s chosen counsel. Second, it was suggested that the Act was inconsistent with a lawyer’s ethical obligation to represent his or her clients zealously. Finally, it was suggested that, by encouraging state legislatures to adopt legislation on the subject so closely related to the regulation of the practice of law, the Act undermines judicial control of the legal profession.

After a number of ABA entities, including the Young Lawyers and Judicial Divisions, announced opposition to the Act, it was withdrawn from the agenda by its supporters. The Uniform Law Commission referred the Act back to its Drafting Committee to consider whether some changes might be appropriate. Its future before the House of Delegates remains uncertain, although it’s likely that the Act will be reconsidered there as soon as next February.

Of course some cynics will say that the real source of opposition is the fear of litigators that successful negotiations will reduce litigation, and cut into their earnings. As I listened to the debate in Orlando, I did not sense that money was the real motive of most opponents.

But I do think that fear of change, and of the unknown, were among the factors that caused opposition. I’m sure that many delegates had never even heard of Collaborative Law before they started to prepare for the meeting.

On the merits, I come down firmly with proponents of the Act. Of course, as a Uniform Law Commissioner myself, I’ve had more time to consider the proposal, and a good deal more exposure to the considerations that surround it, than the average member of the House Delegates.

That’s not to say that there is no merit to the opponent’s arguments. Tens of thousands of cases have already been resolved through the Collaborative Law process. Certainly, among the cases that have not settled, and if one worked through the details of some of those failures it would probably correct to say that more than one reflects the kind of “gaming the system” that worries opponents. That’s a risk that participants must take if they are going to try the Collaborative Law Process.

But clients and lawyers face choices in dispute resolution processes all the time. The Collaborative Law process, as defined by the Uniform Act, rests on a familiar tool to help clients decide whether to take the risk. Lawyers advising their clients about Collaborative Law must obtain their clients’ informed consent before committing.

Informed Consent is by no means a novel idea. It underlies much of lawyer client relationships and the profession’s Model Rules of Professional Conduct. It is the idea that clients get to make the ultimate decisions about their cases, but that their lawyers must provide them with the information, and sometimes education, they need to make their own decisions.

Of course it’s not a perfect process and some lawyers fail to meet their obligations to help clients give informed consent. But in life, nothing is perfect and, overall, informed consent serves clients and lawyers well. There’s no reason to believe that most lawyers can’t or won’t review the risks of Collaborative Law with clients or to believe that clients can’t make an informed choice once they have that information.

And of course the Model Rules of Professional Responsibility never say that lawyers are obligated to “zealously,” represent their clients. Surely there’s an obligation to represent clients diligently, and loyally, but the model rules never say that every dispute must be resolved through total litigation warfare. In fact, the ABA’s Ethics Committee has issued an opinion endorsing the concept of collaborative law and so have the ethics committees of 8 states.

Perhaps the best argument the opponents presented is that, if presented in its present form in every legislature, the Uniform Collaborative Law Act would, in some states, undermine judicial control over the practice of law. But that’s an argument more about the form of the Act than its substance. Many uniform acts are, and have been, presented not to the state legislatures but to state judiciaries exercising their rulemaking authority. Where appropriate, that’s exactly what should happen with all, or parts of the Uniform Collaborative Law Act.

Most important, from my perspective, is the overriding obligation of the legal profession to meet the needs of our clients. We live in a large country with a huge population, and the numbers and varieties of disputes that come up among our people and institutions are almost endless. As a profession, we need a broad repertoire of useful dispute resolution techniques.

Arbitration and mediation have come a long way in expanding the menu of available dispute resolution techniques. But the public will be best served if the dispute resolution menu is expanded, not narrowed.

That’s not to say that the Collaborative Law will rise or fall based on whether the ABA House of Delegates adopts or rejects the Uniform Collaborative Law Act. Collaborative law is already happening without its support, and it will keep happening whether or not the Act is approved.

Some states, California and North Carolina among them, have already adopted legislation regulating Collaborative Law, and the development of state law on the subject is to continue whatever the House of Delegates does. Even if the House refuses to endorse the Uniform Act, it’s likely to be considered and adopted in some states.

Certainly Collaborative Law is not for every case. And certainly Collaborative Lawyering is not for every lawyer. But as a profession, we’ll be better off if Collaborative Law is given a place at the table of dispute resolution techniques.

The practice of Collaborative Law, and I would submit, the practice of law in general, will be improved if the ground rules for collaborative law are reasonably clear and widely understood. The Uniform Collaborative Law Act would make a contribution to that end, and so I hope that the House Delegates will get another chance to endorse the Act and will choose to do so.

Rich

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