Collaborative Law – A New Take on the Delivery of Legal Services
By Sandra Crawford, Attorney, Mediator and Collaborative Professional
Concisely, Collaborative Law is a "no court" limited-scope representation model of dispute resolution. Although, like the mediation model of dispute resolution, Collaborative Law (a/k/a Collaborative Practice) had its origins in the area of family law, it now has application in areas as diverse as probate, business partnership dissolution, 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 agreement without resort to litigation (i.e. without resort to the court system);
- the withdrawal of the professionals if either party decides to litigate (a/k/a "the disqualification clause");
- engage in direct and open communication and information sharing; and,
- create shared solutions which take into account the needs and interests of all of the stakeholders (example: in a family law matter the needs and interests of the children as well as the spouses).
This written commitment is referred to as the Collaborative Participation Agreement (the "PA"). If there is no PA with a disqualification clause then there is no Collaborative process.
It is highly recommended by those who have developed the model over the past 20 years and who are shepherding the growth of the model around the world1 that lawyers have at least a 2-day Collaborative Practice Basic-Skills training and a 40 hour mediation-skills training before undertaking representation using this model. This additional course work is critical as the tools used in Collaborative negotiation differ significantly from those used to negotiate in settlements in litigation or arbitration. The Collaborative model calls on lawyers to think differently about their role in the conflict continuum. It calls on them to work as a "team" and partner with their clients, and often with other professionals (i.e. mental health or financial practitioners), to help the disputants craft unique and sustainable solutions which are future-focused and aimed at keeping them out of the court system in the present and in the future.
What everyone should know about the evolution of the Collaborative model is: (1) there has been a favorable American Bar Association Formal Ethics Opinion on the topic since 2007 (Opinion NO. 07-477); (2) the National Conference of Commissioners of Uniform State Laws has promulgated the Uniform Collaborative Law Act (UCLA) which has been passed in several jurisdictions, including Texas, Nevada, and Washington D.C.2; (3) there is an international organization, the International Academy of Collaborative Professionals (approximately 5,000 professionals worldwide, see www.collaborativepractice.com), which has promulgated ethical standards for Collaborative Practitioners and those who offer training in the model. Locally here in Illinois there are various groups which provide training, mentorship and networking opportunities for lawyers who choose to work with this dispute resolution model. This form of unbundled legal services allows clients a more cost-effective and speedier alternative to litigation. Like mediation, Collaborative Law is a voluntary process and reaching resolution within that container cannot be mandated by a Court. Under the UCLA lawyers who practice this model are obligated to advise clients of the risks and benefits of all dispute resolution process alternatives and to obtain informed consent from the client before undertaking representation under a PA.
1. Collaborative Law is now practiced in 25 countries worldwide.
2. Illinois is poised to introduce the Uniform Collaborative Law Act in the 2013 legislative session.