What every lawyer should know about Collaborative Law (a.k.a., Collaborative Practice)
Simply, Collaborative Law is a “no court” process of dispute resolution. Although, like mediation, Collaborative Practice had its origins in family law, it now also has application in areas as diverse as: probate, business partnership dissolutions, medical errors, labor and employment disputes. No matter the nature of the legal dispute the model is being used to resolve, the core component of the model does not vary. That component is an up-front written commitment of the professionals and the disputants:
• To negotiate a mutually acceptable settlement without resort to litigation (i.e. the court);
• To the withdrawal of the professionals if either party decides to litigate;
• To engage in open communication and information sharing, and,
• To create shared solutions that take into account the highest priorities of all the stakeholders (example: in family law matters the priorities of the children as well as the spouses).
The written commitment is widely referred to as the Participation Agreement. If you don’t have a signed Participation Agreement you don’t have a Collaborative Law/Practice case.
It is highly recommended by those who have developed the model, and are shepherding the growth of Collaborative Practice around the world, that lawyers have at least a two-day basic skills education course specifically in Collaborative Practice and also have mediation skills or other communication skills training before attempting representations using this model. This additional course work and training is necessary because the tools used in “Collaborative negotiation” differ significantly from those used to negotiate a settlement in the context of litigation or arbitration.
The Collaborative model calls on lawyers to think differently about their roles in the conflict continuum. It calls on them to use interest based negotiation not positional bargaining techniques. The model also calls on lawyers to work as a “team” and to partner with their clients, and with other specially trained professionals (mental health or financial professionals), to help the clients craft unique and sustainable future-focused solutions aimed at keeping them, the clients, out of the court system now and in the future. As one of the leading legal scholars in this area, Pauline Tesler, so eloquently states “where lawyers think differently, they behave differently and counsel their clients differently.” (See, Pauline H. Tesler, Collaborative Law: Achieving Effective Resolutions in Divorce Without Litigation, American Bar Association 2nd Ed., 2009. For reading on non-family “civil” Collaborative Practice, see Sherrie R. Abney, Avoiding Litigation: A Guide to Civil Collaborative Law, Trafford Publishing, 2006).
What every lawyer should also know about Collaborative Law is: (1) there is a favorable American Bar Association Formal Ethics Opinion (Opinion No. 07-447) on the topic; (2) there has been since October, 2010, a Uniform Collaborative Law Act, promulgated by the Uniform Law Commission, a.k.a., the National Conference of Commissioners of Uniform State Law. That Act has been adopted in several states; and, (3) there is an international organization, the International Academy of Collaborative Professionals (approximately 4,500 professionals in 17 countries, see < ) which has also promulgated Ethical Standards for Collaborative Practitioners. Locally in Illinois there are various groups which provide training and mentorship in this emerging area of practice. Networking through the local and international Collaborative organizations is considered essential to the development of a client base in this practice area. Basic training in the Collaborative model is a condition of membership in the local organizations which are working to actively promoting the model to the general public. ■