THE
PROMISE AND
PERILS OF COLLABORATIVE LAW,
DISPUTE
RESOLUTION MAGAZINE FALL 2005
Getting people
to use an interest-based approach in
negotiation has
been a difficult problem. Experts provide
helpful
suggestions for changing the game, though these
are usually
limited to case-by-case efforts within a
culture of
adversarial negotiation. Collaborative law (CL)
is an important
innovation that establishes a general norm
of interest-
based negotiation and intentionally develops
a new legal
culture. This article describes CL’s promise
and potential
perils, focusing particularly on the perils
to complement
the literature touting the promise.
The promising
performance of CL
CL reverses the
traditional presumption that negotiators
will use
adversarial negotiation. CL parties and lawyers
sign a
participation agreement establishing the rules for
the process.
Under these agreements, lawyers and parties
(negotiators)
focus exclusively on negotiation, disclosing
all relevant
information and using an interest- based
approach.
Negotiators work primarily in four-way meetings
in which
everyone is expected to participate actively.
A
“disqualification agreement” clause provides that CL
lawyers
represent parties only in negotiation and are
disqualified
from representing them in litigation.
(Although CL
lawyers cannot litigate a CL case, CL parties
can withdraw and
hire other lawyers to litigate.) This
disqualification
provision creates strong incentives for
all negotiators
to stay in CL. Practitioners consider this
the essential
feature of CL.1
Although CL
principles could be applied in almost any civil
case, virtually
all CL cases have been family law
matters.2 Many
CL groups promote a multi-disciplinary
approach
throughout the case, using a team of
professionals in
allied fields, including neutral financial
and child
development experts as well as mental health
professionals
serving as “coaches” for each party.
Since the CL
movement began in 1990, it has grown rapidly.
There are more
than 150 local CL groups, which develop
local practice
protocols, train practitioners, build demand
for CL and form
referral networks. The International
Academy of
Collaborative Professionals, an organization
with more than
1,000 members, publishes a newsletter,
manages a
listserv and Web site, does public relations,
holds annual
conferences and sets standards.3 Legislatures
and courts have
enacted rules exempting CL cases from
normal
case-management procedures.
CL negotiators
generally use interest- based negotiation,
according to a
landmark study by Professor Julie
Macfarlane.4 Her
three-year study involved 66 initial
interviews with
clients, lawyers and other professionals
in the United
States and Canada. The researchers then
conducted
in-depth case studies of 16 cases in four
cities,
involving 150 interviews.
Macfarlane found
that CL negotiators generally did not
engage in
adversarial negotiation and when they did so,
they usually had
more information and a more constructive
spirit than in
traditional negotiations. She found that,
in general, CL
agreements contain provisions comparable to
those reached
through traditional negotiation, though CL
parties
sometimes develop more creative provisions
tailored to
their interests. Macfarlane found no evidence
that weaker
parties in CL received less favorable terms
than they
probably would have in traditional negotiation.
In general, CL
parties benefited from improved
communication
and were satisfied with the process and
their lawyers.
CL lawyers were generally quite pleased
with the
process, which enabled them to practice more
consistently
with their values and provide better service
to clients.
The potential
perils of CL
CL practitioners
are experimenting with new roles and
procedures in an
innovative process. Innovators inevitably
make some
mistakes, but we can hope CL practitioners will
learn from
research and experience to reduce the following
risks.
1. Setting
unrealistic expectations. When considering
whether to use
CL, parties need realistic understandings
of the nature of
the process and the lawyer’s role.
Macfarlane found
that CL lawyers generally used three
different
approaches: (1) a traditional legal advisor who
commits to
cooperation, (2) a friend and healer who
focuses more on
helping people heal emotionally than
serving as an
advocate for individual clients, and (3) a
member of a team
committed to preserving the integrity of
the CL process.
Although CL
lawyers may combine several approaches, many
lawyers have a
general preference for one of them. Each
approach has
potential benefits and risks. Lawyers using
the healer and
team-player roles face particular risks
because they
deviate from traditional expectations of
lawyers and are
more likely to violate professional
conduct rules.
The degree of
risk depends on whether the lawyers
effectively
communicate realistic expectations at the
outset, and the
clients provide real informed consent. In
some cases,
Macfarlane found a “mismatch” of expectations,
which frustrated
clients. Some CL lawyers were so
committed to a
“harmony ideology” that they were not
sympathetic to
their clients’ desires for emotional
expression or
particular results. Clients generally
took a pragmatic
approach, concerned primarily about the
cost, time and
resolution of the matter.
Macfarlane found
that some clients were disillusioned when
the process was
not as fast or inexpensive as they were
led to believe.
Some were disappointed when their lawyers
did not provide
specific legal advice, emotional support
or advocacy.
Indeed, in some cases clients felt that their
lawyer “ganged
up on them” with the other side, leaving
them without
support or advocacy. Some clients did not
understand what
information it would be necessary to
disclose—for
example, the existence of a romantic
relationship.
Moreover, some CL lawyers had inaccurate
understandings
of rules governing confidentiality and thus
generated
misleading expectations.5
To some extent,
inadequate or misleading disclosures are
predictable for
a complex new process in which many
practitioners
have only limited experience. Over time, CL
lawyers should
routinely provide clients with realistic
expectations,
which requires CL lawyers to be aware of
their own values
and expectations and communicate them
effectively.
Practitioners should provide candid advice to
prospective
clients including potential disadvantages of
CL and
contra-indications in their cases.6
2. Creating
excessive settlement pressure. Some pressure in
negotiation is
inevitable and often desirable. Parties may
not make
reasonable decisions— or any decision—without
some pressure.
Parties are often inexperienced and under
stress, and
their lawyers often have a better
understanding of
what would satisfy clients’ interests.
Thus it is often
appropriate for lawyers to press clients
to reconsider
decisions or to agree to reasonable requests
from other
parties.
Macfarlane found
that some parties feel significantly
empowered in CL
but others do not, sometimes due to the
lawyers’
approach or the structure of the process. CL
lawyers
participate in virtually every conversation in the
negotiation
process, including the four-way meetings and
also the
conversations with clients and the other lawyers
before and after
the four-ways. One CL lawyer said, “I
think it’s very
clear, we still have a ton of control . . .
in fact, more
control maybe than we had, in a sense, than
before. Not of
the outcome, necessarily, [but] over
process and over
behaviour in the meeting and so on.”7
CL lawyers also
can exert major influence on substantive
decisions. For
example, Macfarlane found that some CL
lawyers
sometimes impose their own views about “healthy
family
transitions” on their clients. This finding
suggests that
some clients may feel pressured to accept
agreements that
the lawyer believes are in the interests
of the whole
family rather than focus primarily on the
clients’ own
individual wishes and interests.
Similarly, some
clients may feel pressured by lawyers whose
primary goal is
to avoid litigation and who thus attempt
to impose a
false harmony.
Pauline Tesler
writes that CL lawyers should “represent the
highest-
functioning client, and . . . take no
instructions
from the ‘shadow client.’”8 CL lawyers can
use this theory
to ignore clients’ stated desires as
coming from the
shadow client—that is, one who is governed
by feelings such
as anger, fear and grief—not the “true
client.”
The CL process,
through the disqualification agreement, is
purposely
designed to put pressure on parties to stay in
CL. Macfarlane
found that although CL lawyers explained
the
disqualification agreement at the outset, some clients
felt “entrapped”
because they had invested so much time
and money in CL
that it was too hard to switch to
litigation. This
dynamic gives power to a party who stalls
the process or
outlasts the other. It also gives power to
a party who
suggests ending the process, if the other
party does not
want to litigate.
CL practitioners
should respect clients’ ultimate
decision-making
authority and thus limit their pressure on
clients.
3. Violating
rules of professional conduct. It is hard to
assess
definitively whether CL practice complies with
lawyers’ rules
of professional conduct. CL implicates rules
governing
competence, diligence, zealous advocacy,
limiting the
scope of representation, representation of
multiple
clients, conflicts of interest, confidentiality,
client’s right
to settle, withdrawal, prospective waivers
of liability and
joint advertising.9 Courts and ethics
committees must
rely on imperfect analogies in
interpreting
rules premised on the model of traditional
representation.
Moreover, CL procedures vary, and
determinations
of compliance typically depend on the facts
of particular
cases.
The
disqualification agreement, a central element in CL
theory and
practice, may be especially problematic.
Professor Scott
Peppet has doubts whether such agreements
comply with
ethical rules. “By requiring that both parties
hire new
attorneys in the event that they cannot settle
their dispute,
mandatory mutual withdrawal provisions
effectively
permit one party to fire another party’s
lawyer.”10 He
argues that this “seems at odds with the
most fundamental
premises of the legal ethics codes, which
strive at every
turn to protect the lawyer-client
relationship.”11
Moreover, CL participation agreements
probably violate
ethics rules if they authorize lawyers to
withdraw if
clients do not follow the lawyers’ advice.12
Professor
Christopher Fairman argues that CL is a distinct
form of practice
calling for new ethical rules.13 However,
unless
authorities do adopt new rules, CL lawyers should
comply with
existing rules.
4. Resisting
choice and innovation. Some CL practitioners
are so committed
to their approach that they ignore other
options that may
be more appropriate for their clients.
Macfarlane found
that some practitioners have
“quasi-religious”
passion for their approach, and that
local groups
generally develop uniform practices for their
members. A
uniform approach can provide benefits of strong
commitment to
the process and development of clear
understandings.
When practitioners feel limited tolerance
for variation,
however, they are less likely to raise
questions that
could lead to improvements. Moreover, allegiance to a
single
ideological
approach can deprive practitioners and parties
of a greater
choice of processes, a fundamental value of
dispute system
design.
Instead of
limiting offerings to a single ideological
approach,
practitioners should develop clear explanations
of a broad range
of options. Practitioners should respect
client process
choices rather than impose their
ideological
preferences on clients. Macfarlane argues that
“if CFL
[collaborative family law] is to develop integrity
as a process
choice for family transitions— particularly
as a process
that trumpets the autonomous decision-making
role of the
client—it is critical to remove the taint of
ideology. .
..”14
CL’s ideological
nature is demonstrated by insistence on
using
disqualification agreements. CL groups have been
unwilling to
offer “cooperative law”—a similar process
that does not
include the disqualification agreement—even
though it might
serve some clients better than CL.15
Macfarlane also
found that some CL lawyers do not advise
clients whether
they would benefit from mediation. In
everyday
conversation, some practitioners refer to
litigation as if
it is inherently a form of evil rather
than a
problematic but essential form of dispute
resolution.16
These practices give priority to
practitioners’
ideological preferences over the interests
of clients who
might prefer cooperative law, mediation, or
traditional
litigation.
CL practitioners
should provide clients with the balanced
information
needed to make informed decisions, and they
should then
respect clients’ decisions. Similarly, CL
practitioners—
and all dispute resolution
professionals—should
respect practitioners with different
ideologies of
dispute resolution.
Achieving CL’s
potential
CL is an
important innovation offering great promise and
posing real
risks. It creates a mechanism for
institutionalizing
interest-based negotiation as the norm,
reversing the
presumption of adversarial negotiation.
Local CL groups
provide ongoing training and peer
consultation to
continuously improve the quality of
services.
CL leaders and
practitioners can manage risks if they
openly
acknowledge and address problems. Practitioners can
elicit truly
informed consent from prospective clients and
refrain from
overselling CL. They can provide realistic
expectations,
including frank acknowledgment of potential
problems and an
explanation of other processes that clients
might prefer.
Practitioners can comply with professional
conduct
requirements, and they can limit pressure on
clients to
accept the practitioners’ procedural and
substantive
preferences. They can respect diverse dispute
resolution and
CL procedures, and they can advise clients
primarily based
on clients’ needs rather than the
practitioners’
ideological preferences.
As CL develops,
we can hope practitioners will achieve the
potential and
minimize the risks of this important
innovation in
dispute resolution system design.
Endnotes
1 For analysis
of disqualification agreements, see 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 (2003).
2 For an
excellent analysis explaining why parties have not
used CL in
business cases, see David A. Hoffman,
Collaborative
Law in the World of Business, COLLABORATIVE
REV., Winter
2004, at 1. For suggestions to adapt CL for
civil cases, see
John Lande, Negotiation: Evading Evasion:
How Protocols
Can Improve Civil Case Results, 21
Alternatives to
High Cost Litig. 149 (2003).
3 See
International Academy of Collaborative Professionals,
www.collaborativepractice.com/
index.cfm.
4 Julie
Macfarlane, The Emerging Phenomenon of
Collaborative
Family Law (CFL): A Qualitative Study of CFL
Cases (2005), at
http:
//canada.justice.gc.ca/en/ps/pad/reports/2005-
FCY-1/2005-FCY-1.pdf.
5 See Lande,
supra note 1, at 1341-43.
6 An official
comment to the Model Rules of Professional
Conduct states:
“Ordinarily, [informed consent] will
require
communication that includes a disclosure of the
facts and
circumstances giving rise to the situation, any
explanation
reasonably necessary to inform the client or
other person of
the material advantages and disadvantages
of the proposed
course of conduct and a discussion of the
client’s or
other person’s options and alternatives.” Model
Rules of Prof’l
Conduct Rule 1.0(e) cmt. 6 (2002).
Some statements
promoting CL do not promote such informed
consent. For
example, the International Academy of
Collaborative
Professionals website identifies advantages
but no
disadvantages of CL and its section “Is
[collaborative
practice] for you?” includes no cautions
about
contraindications. See
www.collaborativepractice.com/index.cfm.
In a recent
appearance on
the nationally televised Today Show, CL
lawyer Neil
Kopek said that there are “no real risks” in
CL. See
www.collaborativelawny.com/today_
show.php.
7 See
Macfarlane, supra note 4, at 42 (omission of words in
original).
8 PAULINE H.
TESLER, COLLABORATIVE LAW: ACHIEVING EFFECTIVE
RESOLUTION IN
DIVORCE WITHOUT LITIGATION 161 (ABA
Publishing
2001).
9 For detailed
analyses, see Pa. Bar Ass’n Comm. on Legal
Ethics and
Prof’l Responsibility, Informal Op. 2004-24,
2004 WL 2758094
(2004); Lande, supra note 1, at 1330-60.
10 Scott R.
Peppet, Lawyers’ Bargaining Ethics, Contract,
and
Collaboration: The End of the Legal Profession and the
Beginning of
Professional Pluralism, 90 IOWA L. REV. 475,
489 (2005); see
also Lande, supra note 1, at 1344-60.
11 Peppet, supra
note 10, at 489.
12 See Lande,
supra note 1, at 1345-49. For an example of
such a
provision, see Macfarlane, supra note 4, at 69 n.85.
13 Christopher
M. Fairman, Ethics and Collaborative
Lawyering: Why
Put Old Hats on New Heads?, 18 OHIO ST. J.
ON DISP. RESOL.
505, 522-28 (2003).
14 Macfarlane,
supra note 4, at 35-36.
15 For
discussion of cooperative law and comparison with
other dispute
resolution processes, see John Lande & Gregg
Herman, Fitting
the Forum to the Family Fuss: Choosing
Mediation,
Collaborative Law, or Cooperative Law for
Negotiating
Divorce Cases, 42 FAM. CT. REV. 280 (2004).
There are a
small number of groups offering cooperative
law. See, e.g.,
Divorce Cooperation Institute, http:
//cooperativedivorce.org.
16 For an
excellent critique of a tendency in the dispute
resolution field
to castigate the courts and litigation,
see David A.
Hoffman, Courts and ADR: A Symbiotic
Relationship,
DISP. RESOL. MAG., Spring 2005, at 2.
DISPUTE
RESOLUTION MAGAZINE FALL 2005 31