Thank you to Brad Reid and the Huffington Post for this blog article.
Collaborate law is a variation of non-adversarial alternative dispute resolution. Specific collaborative law techniques have been discussed for about thirty years and fifteen or so states have enacted the Uniform Collaborative Law Act of 2009. While primarily focused on family law and divorce, collaborative law may be utilized in other disputes such as employment, insurance, mergers and acquisitions, or issues between family members in closely held businesses. Always consult an experienced attorney in specific situations.
In broadest overview, the parties voluntarily sign a collaborative participation agreement and are represented by attorneys whose representation ends if a traditional contested judicial proceeding begins. While participation cannot be court ordered, courts retain authority to issue emergency orders to protect health, safety, welfare, and financial interests. Attorneys must make a full disclosure of the advantages and disadvantages of collaboration in the specific situation so that a client may make an informed participation decision. There are limited institutional exceptions to the end of attorney representation when a free legal services clinic or governmental entity is involved in the collaborative representation. The parties agree to disclose all relevant and material information (although the agreement may limit the scope of disclosure) and promise to exercise good faith while negotiating. Disclosed information is deemed privileged and may not be utilized in subsequent litigation, subject to modification by the collaborative participation agreement. Exceptions to disclosure exist to prevent bodily harm or a crime, abuse or neglect of a child or adult, and to address professional misconduct or malpractice. The parties may engage appropriate professional experts to assist in the dispute resolution process. Courts may enforce an agreement that does not meet all of the formal requirements in the interest of justice when the parties intended to engage in the collaborative process.
Collaborative law, unlike arbitration under which a third party makes a binding decision, leaves the decision to the parties themselves. “Coaches” may facilitate direct communications. Unlike much alternative dispute resolution, collaborative law is pre-litigation. Hence, it may be less emotionally draining and more relationship preserving. The most serious criticisms of collaborative law center on attorney disqualification. Critics are concerned with potential attorney withdrawal at the very moment (litigation) when attorney services are most needed. An additional criticism is that collaborative law adds another layer of time and expense to disputes that end in litigation. However, attorney codes of ethics uphold the attorney withdrawal provisions and advocates of collaborative law assert that litigation rarely results at the end of a collaborative process. It is additionally asserted that privacy, control of the process by the parties themselves, and the individualized situational based aspects of the process are significant benefits.
Psychological and sociological knowledge underlies collaborative law. The following several paragraphs provide a few of many basic concepts. Fear of the collaborative process is perhaps best overcome by trust that is created by individual self-awareness and mutual self-disclosure. However, creating trust is hard work and the personal relationships may already be so damaged that trust, hence collaborative law, is impossible.
Additionally, the parties themselves may be at various points in the familiar progression consisting of denial, anger, bargaining, depression, and acceptance. There may be non-party individuals that have a high degree of unrecognized influence over the parties. Controlling parents, new boyfriends or girlfriends, and friend confidants are examples.
Furthermore, one must distinguish an individual’s interests, positions, and goals. Interests are concerns or matters of importance that drive persons and they may be unrecognized emotions such as sadness, anger, or shame. Skilled advocates help their clients develop self-knowledge and understanding that leads to attainable goals. Inquiring about “what you assume will happen,” “what is your expectation,” and “precisely what will that look like to you,” are recognized techniques to get beneath the surface.
Individuals may engage in irrational, self-sabotaging behaviors due to projecting their problems on others so that they avoid changing their behavior, defensive habits, creating excitement or chaos to override depression by stimulating the body’s physical chemical responses, and to acquire status or approval from others. Sometimes deeper psychopathology may be present that creates real risks of physical harm to themselves or others.
The parties must have common ground rules for negotiation and the attorneys themselves must be self-confident centered persons who are able to manage their own stress as well as the unique stressors of the particular situation. Professionals must be prepared to address such expected problem areas as an individual’s resistance to disclosing needed information or delaying the process either consciously or unconsciously.
Professionals must be able to recognize “transference” and “countertransference” when feelings are unconsciously redirected from one person to another. Self-knowledge, relying on facts not opinions, and discouraging posturing and positions are all helpful professional techniques. Initial meetings and the collaborative participation agreement set the stage for everything that follows. Common courtesy, mutual respect and constructive negotiations are vital to success. Certainly, however, collaborative law is not possible or even best under all circumstances.
Thankfully, an individual professional need not know and be everything as a collaborative team is likely. Particularly in family law and divorce situations, a variety of financial, wealth management and tax experts may be involved. Ideally the transparency of the collaborative process will allow efficient data collection and the development of and commitment to mutually beneficial financial goals and commitments. However, non-financial professional assistance in the form of child and adult therapists, addiction specialists, as well as family, friends, and clergy may be of equally important. The expectation is that professional individuals will bring their best neutral professional judgment to the process.
In broad conclusion, collaborative law is advocated as cost effective and relationship oriented and has spread globally. There are a number of professional organizations and training associations. These organizations may overlap and cooperate with family advocacy and mental health groups. Courts have been creating both local and state-wide rules to govern the collaborate process. Minimum professional training before one may practice collaborate law is frequently required. Consult an experienced attorney to determine the status of collaborative law in a particular state.
Collaborative law aligns with a recognizable movement to make legal services and dispute resolution more accessible and cost effective. Standards for attorney and non-attorney professional specialization, for example, licensed legal technicians, are developing. The “unbundling” of legal services so that attorneys are not required to personally engage in every client encounter, much like the current activities of a physician’s assistant or nurse practitioner, are the contemporary trend. Additionally, a host of specialized courts that have non-traditional powers and may grant unique remedies or divert parties to extra-judicial entities are increasing. Individual just-in-time services provided in a multidisciplinary package are coming to law. Increasingly, it appears that in the long-term the Anglo-American adversarial system of justice, while not totally replaced, will be reserved for certain unique problem areas. Even criminal law, uniquely adversarial, is not immune from these developments.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney and other professionals in specific situations.
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