Adding Cooperative Practice to the ADR Toolkit, Part Four (4/29/08)
Gini Nelson

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here. [Earlier Parts to the series are posted here: Part One, Part Two, Part Three]

Part Four: The Divorce Cooperation Institute And How DCI Lawyers Do Cooperative Practice.

The last part of this blog [Part 6] describes why the ADR field should add Cooperative Practice to the “ADR toolkit.” This part describes how lawyers can add it to your own practices. Mediators should also be interested because Cooperative Practice often involves mediation when people have difficulty resolving disputes.

Lawyers interested in offering Cooperative Practice may use or adapt DCI’s approach, as appropriate. Although DCI uses the process only in divorce cases, it can be readily adapted in other types of cases.

DCI members normally use an explicit process agreement at the outset. The agreement requires people to: (1) act civilly, (2) respond promptly to reasonable requests for information, (3) disclose all relevant financial information, (4) obtain joint expert opinions before obtaining individual expert opinions, (5) obtain expert input before requesting a custody study or appointment of a guardian ad litem, and (5) negotiate in good faith to reach fair compromises based on valid information. Here’s the full version of DCI’s principles.

DCI members value Cooperative Practice because they can tailor the process to the parties’ needs. In Cooperative cases, they use many of the elements in Collaborative Practice – such as commitment to full disclosure of relevant information, four-way meetings, joint experts, and individual coaches. Many DCI members – including many who use Collaborative Practice – find Collaborative process to be too formal and rigid and believe that it sometimes involves more of these process elements than needed. DCI members report using them only as needed in Cooperative cases and so they believe that a Cooperative process generally produces good outcomes as efficiently as possible.

For more information about my study of Cooperative Practice in Wisconsin, click here.

John’s series will continue later this week with “How Cooperative Negotiation Is Different From Negotiation In Litigation”.

Report from the Wingspread Conference on Domestic Violence and Family Courts (3/31/08)
Clare Dalton, Nancy Ver Steegh
In February of 2007 the National Council of Juvenile and Family Court Judges and the Association of Family and Conciliation Courts brought together a working group of thirty-seven experienced practitioners and researchers to identify and explore conceptual and practical tensions that have hampered effective work with families in which domestic violence has been identified or alleged. Five central sets of issues were raised at the conference and are discussed in this report. These include the following: differentiation among families experiencing domestic violence; screening and triage; participation by families in various processes and services; appropriate outcomes for children; and family court roles and resources. The report emphasizes the need for continued multidisciplinary collaboration in order to better serve families affected by domestic violence and it includes an appendix of consensus points as well as suggestions for formation of ongoing work groups.

The Client-Centered Process: Common Ground for Mediators And Collaborative Professionals (3/24/08)
Chip Rose
The Client-Centered Process: Common Ground for Mediators In his “Letters to a Young Poet,” the Czech poet, Rainer Maria Rilke counsels a young man who sent some of his work to the aging artist seeking his opinion. In one of the most memorable portions of the correspondence, Rilke encouraged his young artist friend to find comfort by “living in the question”—trusting that to do so was a far more productive endeavor than obsessing about the answers. I cannot think of a more appropriate point of professional departure for those of us who work with interpersonal, relational conflict than to practice the art of “living in the question.”

John Lande Awarded the CPR Institute’s 2007 Award for Outstanding Original Professional Article (3/04/08)
Gini Nelson

Congratulations to John Lande for receiving the 2007 CPR Award for Outstanding Original Professional Article in the 24th Annual Awards for Outstanding Scholarship in ADR. I posted about John’s article, “Principles for Policymaking About Collaborative Law and Other ADR Processes” here.

From the press release:

New York, NM, January 18, 2008 — The International Institute for Conflict Prevention & Resolution (CPR Institute), a membership-based, nonprofit alliance of global corporations, law firms, scholars, and public institutions dedicated to the principles of conflict prevention and alternative dispute resolution, announced the winners of the 24th Annual CPR Awards Program at a dinner held at New York’s Waldorf-Astoria on Thursday, January 17…

The award for Outstanding Original Professional Article recognizes an article published by academics and other professionals that advance understanding in the field of ADR. The 2007 CPR Award for Outstanding Original Professional Article was awarded to John Lande, J.D., Ph.D., Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri-Columbia Law School, for his work “Principles For Policymaking About Collaborative Law and Other ADR Processes”, Vol. 22:3 Ohio St. J. on D.R. 619 (2007)…

The Client-Centered Process: Common Ground for Mediators And Collaborative Professionals (2/25/08)
Chip Rose
In his “Letters to a Young Poet,” the Czech poet, Rainer Maria Rilke counsels a young man who sent some of his work to the aging artist seeking his opinion. In one of the most memorable portions of the correspondence, Rilke encouraged his young artist friend to find comfort by “living in the question”—trusting that to do so was a far more productive endeavor than obsessing about the answers. I cannot think of a more appropriate point of professional departure for those of us who work with interpersonal, relational conflict than to practice the art of “living in the question.”

The ABA Approves the Oxymoron of Collaborative Litigation (1/21/08)
Victoria Pynchon

The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:  

“When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”

The oxymoron?  Litigation is definitionally a "contentious tactic" pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.

Why is litigation a "contentious" tactic?  Because its entire purpose is to overcome the will of another.  It is not an invitation to dinner to discuss the dispute in an attempt to find common ground.  Does litigation  sometimes lead to collaboration?  Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence -- all of which can serve to bring the parties to the bargaining table.

I am all in favor of collaborative processes for the resolution of disputes.  It's what I do for a living for heaven's sake.  But I am also an advocate for the preservation of meaning in the English language.  Collaborative litigation is a contradiction in terms.  And if you want your client's informed consent to anything, it would be best to remember that the "litigation" part of collaboration remains the iron fist inside the velvet glove.

Collaborative Law – The Magic of Counterpart Counsel (11/26/07)
Laurie Israel
At some point during a divorce process, everyone meets -- there is a four-way meeting of the divorcing parties and their attorneys. In a litigated case, the first in-person four-way meeting might be at a court hearing on a motion, or at the pre-trial conference with the judge. This meeting might occur after many negative experiences with the opposing side. These include depositions, discovery of documents, letters by opposing counsel (forwarded by a party’s own counsel) and reports of negotiations between counsel and/or demands and ultimatums on very painful points. There may be no history of collaborative work between the attorneys on behalf of their parties, and there is no guarantee that this first four-way meeting will be anything but unpleasant.

Collaborative Law As Limited Scope Representation (11/06/07)
Phyllis Pollack

       In one of my earlier blogs, I discussed an Ethics Opinion issued by the Ethics Committee of the Colorado State Bar determining that collaborative law is per se unethical because it creates a conflict of interest that cannot be waived.
 

      Recently, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (“ABA Committee”) issued its Formal Opinion 07-447 (August 9, 2007) determining that a lawyer may represent a client in the collaborative law process:
     

       “Before representing a client in the collaborative law process, a lawyer must advise the client of the benefits and risks of participation in the process. If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process. A lawyer who engages in collaborative resolution processes still is bound by the rules of professional conduct, including the duties of competence and diligence. (Id. at 1).

 

       In reaching this conclusion, the ABA Committee noted that collaborative law “is a type of alternative dispute resolution. . . [having] its roots in, and [sharing] many attributes of, mediation.” (Id.) Created in Minnesota in 1990, collaborative law practice has spread throughout the United States, Canada, Australia and Western Europe. While different protocols of this type of practice exist, they all share the key element of using a “disqualification stipulation” or “four-way agreement” in which “. . . the parties commit to negotiating a mutually acceptable settlement without court intervention” (Id. at 2) by using open communication and sharing information. If the matter is not resolved, the attorneys withdraw so that the clients must obtain new counsel to pursue the matter in court.
            

       The ABA Committee noted that with the exception of the Colorado State Bar, most state bars which have issued opinions have analyzed collaborative law practice as a “species of limited scope representation,” discussing the duties of lawyers in such situations.
 

      Taking its lead from these other state bar opinions, the ABA Committee agreed that collaborative law practice and the provisions of the four-way agreement represent a permissible limited scope representation. The ABA Committee specifically rejected the notion (of the Colorado State Bar) that collaborative law presents a non-waivable conflict of interest.
 

      Rather, the ABA Committee concluded that as long as the lawyer meets his obligations of competence, diligence and communication, the limited representation of a client in a collaborative law setting is permissible. Among other things, the informed consent of the client must be obtained. This requires
     

       “. . . that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the limited representation. The lawyer must provide adequate information about the rules or contractual terms governing the collaborative process, its advantages and disadvantages, and the alternatives. The lawyer must also assure that the client understands that, if the collaborative law procedure does not result in settlement of the dispute and litigation is the only recourse, the collaborative lawyer must withdraw and the parties must retain new lawyers to prepare the matter for trial.” (Id. at 3).

       The ABA Committee then noted that when a client gives her informed consent, the lawyer’s agreement to withdraw if the matter is not resolved, is actually consistent with the scope and purpose of the limited representation. Thus, as long as the attorney fulfills his ethical obligations of competence and diligence, he has fulfilled his obligations within the scope of the limited representation. In this light, no conflict of interest arises and the client is free to pursue all available alternatives should the collaborative law process not resolve the dispute.
     

       . . . Just something to think about.  

Tips For Parents Engaged In The Collaborative Family Law Process (10/29/07)
Gay Cox, Honey Sheff
You are to be commended for choosing Collaborative Practice as the means to solve any problems that you and your children’s other parent might have because you decided to separate. It is evident that you want the best possible outcome for your children and see this as a means of achieving it. Based on experience with families who select this method of problem-solving, it is apparent that they tend to have some very important common values and goals. It may be helpful to you to learn what parents who have been successful in accomplishing these goals have used as their strategies.   1 Comment

Collaborative law: attorneys who mediate and negotiate, not litigate (10/15/07)
Diane J. Levin
As family lawyer Diana Skaggs recently alerted readers, the nation's leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In "Lawyers who mediate, not litigate: Collaborative law doesn't have to be an oxymoron", a column in today's Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers--an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law -- and other nonadversarial processes like mediation -- may not be for everyone, many divorcing couples are electing these as a way to avoid the costs -- monetary and otherwise -- that litigation can produce.

Mediators Can Enhance Collaborative Practice (9/13/07)
Beth D. Danehy
Skilled neutrals have a distinct and valuable role to play at the Collaborative table, particularly in complex or high-conflict cases. While Collaborative practitioners do at times call on neutrals to work with them on specific issues or to assist when the process has reached an impasse, integrating skilled mediators more routinely into the Collaborative process and acknowledging the distinctive benefits of working with a mediator can support the evolution of Collaborative Practice toward an increasingly effective, conscious and client-centered practice.

The Basics of Collaborative Family Law - A Divorce Paradigm Shift (5/02/07)
Sherri Goren Slovin
Collaborative Family Law (CFL) is a revolutionary approach to divorce that has quickly spread throughout the United States and Canada. Often misunderstood and occasionally maligned, it has the potential to dramatically change the field of family law.

The Spiritual Aspects Of Collaborative Law (5/01/07)
Dale L. Raugust
The good news is that within the last few years there has been an explosion of new approaches to the resolution of conflict within the family. The adversary system is now regarded by most far sighted individuals as an outdated and ineffective method for resolving conflicts within the family. Most of the time the adversary system makes the problem worse, as the members of the family are forced to talk trash about the other member to “win” their case and obtain custody of the children or a better financial settlement. One new method of dispute resolution is collaborative law.   2 Comments

Imagine... A Collaborative Approach To Divorce (5/01/07)
Gary Direnfeld
There is a movement in family law whereby divorcing couples can sign agreements with lawyers to not go to court. More specifically, the process is known as Collaborative Family Law (CFL) and the agreement to not go to court is binding upon the lawyers, not the couple. If one or both clients are unsatisfied, either may still march the dispute to court. They will however have to find new lawyers.

Lessons for Collaborative Lawyers and Other Dispute Resolution Professionals from Colorado Bar Association Ethics Opinion 115 (4/16/07)
John Lande
In February 2007, a Colorado Bar Association ethics opinion found that four-way Collaborative Law agreements between lawyers and clients constitute per se violations of ethical rules prohibiting conflict of interest, but that similar Cooperative Law agreements do not violate the ethical rules. Although the opinion’s reasoning and conclusion are problematic, it does highlight the importance of ethical issues in Collaborative Law. It also gives recognition to Cooperative Law, which is similar to Collaborative Law, but does not involve a disqualification agreement. (The disqualification agreement precludes the parties from retaining their Collaborative Lawyers if they decide to litigate.) Adding Cooperative Law to the roster of commonly-available ADR processes has the potential to create great benefits for parties, practitioners, the dispute resolution field, and society.

Colorado Ethics Committee Concludes Collaborative Law Per Se Unethical, Cooperative Law Not (3/12/07)
Gini Nelson
As previously posted in EngagingConflicts here, there is a significant ethical critique of Collaborative Law, and a growing movement for the practice of Cooperative Law. The main issue is Collaborative Law’s requirement of mandatory attorney disqualification if the process is unsuccessful. Cooperative Law is defined in the Colorado Ethics Committee’s Opinion as identical to Collaborative Law, but without the mandatory attorney disqualification agreement.

This is the Conclusion from Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts (Adopted February 24, 2006)(note: date is probably a typo, as this Opinion has just been released):

The Colorado Rules of Professional Conduct prohibit a lawyer from participating in Collaborative Law so long as a contractual obligation exists between the lawyer and the opposing party whereby the lawyer agrees to terminate the representation of the client. Absent such a contractual obligation, a lawyer may participate in the process referred to as Cooperative Law provided that the lawyer complies with all of the Rules of Professional Conduct.

The Opinion lays out the Committee’s analysis, and also provides an extensive discussion of the “myriad potential ethical pitfalls” in a Cooperative Law practice, which include provisions relating to terminating the attorney-client relationship; communications with the client (concerning the applicable range of alternative courses of action in the client’s case); considerations of whether the client is under a disability (particularly if there is a history of domestic abuse in the family law context); and Cooperative Law organizations (as possibly impermissible referral services). These issues are also potentially relevant in jurisdictions where a Collaborative Law practice is not per se unethical.

Colorado does not have a mandatory bar association, and the Committee’s opinion is not per se binding on attorneys. However, it is a powerful statement about the practice of Collaborative (and Cooperative) Law in Colorado, and of the potential issues everywhere.

This is how the Colorado Ethics Committee describes itself (from its website):

The Colorado Bar Association Ethics Committee is a standing committee of the Colorado Bar Association, staffed by approximately 90 Colorado attorneys, existing for the purpose of giving ethics advice to Colorado attorneys. The Committee will answer written requests for ethics advice subject to certain exceptions such as those listed below. The Committee will issue Formal Ethics Opinions concerning topics of general interest. . . .

The Ethics Committee is NOT associated with the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel. Committee Opinions, whether informal written opinions or published formal Ethics Opinions, are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, Attorney Regulation Counsel, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.

The opinion is not yet posted at its website. If you would like a copy, please send an email to gn@gnconflictmanagement.com, with “Opinion” in the subject line, and I’ll send back a copy.

Understanding The Basics Of Collaborative Family Law (1/25/06)
Sherri Goren Slovin
The process you choose to end your marriage will have a far-reaching impact on the custodial, financial and emotion outcome. Depending on where you live, you may have the options of mediation, Collaborative Family Law (Collaborative Practice), traditional negotiation, or litigation. The following is an overview of the Collaborative Family Law process.

How To Market Your Collaborative Law Practice (12/05/05)
Elizabeth Ferris
How do certain ideas, services, products or messages advance from a position of unfamiliarity in the market to a position of popularity and recognition? I believe Collaborative Law is nearing a tipping point in which it may start to rapidly transform the way disputes are resolved in the U.S, Canada, and beyond.

Collaborative and Cooperative Law — Promise and Perils (9/30/05)
John Lande
Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. 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.

The Collaborative (R)evolution (12/12/04)
Chip Rose
In the field of conflict resolution, the contemporaneous emergence of the modern mediation movement began a course change that is nothing short of revolutionary. If we tracked the arc of that change like a Saturn rocket, mediation was the first stage lift off and Collaborative Law is the second stage booster.

The Creative Solution: Sibling Non-Rivalry (7/28/03)
Chip Rose
Either the Collaborative Law (CL) movement has already sprouted in your community or it will in the near future. The growth of this latest entry into the dispute resolution field demonstrates meaningful similarities to and differences from the emergence of the modern mediation movement beginning in the early 1970’s. In every sense, these two movements are siblings, evolving from a common gene pool.   1 Comment

Making Sense of Collaborative Law (2/17/03)
Robert Wildau
To most attorneys including this one, on the first hearing "collaborative law" sounds like a contradiction in terms. Lawyers go to court to find out who's right and who's wrong, so what's to collaborate about? Or if people are truly collaborating, why should they need to resort to law at all?   2 Comments

Collaborative Family Law: A Path Beyond Winning (6/17/02)
Gay Cox
This paper is written in furtherance of the goal of increasing the number of practitioners willing to engage in the practice of law collaboratively so that the pool of attorneys available to the ever-increasing number of clients seeking the service is adequate to meet the demand.   4 Comments

Collaborative Concepts (3/11/02)
Chip Rose
As the Collaborative Family Law model moves into its second decade of expansion, we can observe how far it has come and how far it has yet to go. The two most frequently expressed frustrations I hear while training around the country and across Canada are, the difficulty in getting cases, on the one hand, and the difficulty in keeping the case collaborative, on the other. As was true for mediation in the decades of the 80's, the desire of the professionals is out pacing the consumer demand.

The Role of Law in Conflict Management (1/28/02)
Alan Simpson
The task of this paper is to explore the relationship between law and conflict management. This paper has four components: stated assumptions of law, underlying values that affect the relationship, the impact of the legal process on present day forms of dispute resolution models, and questions for future ponderings. The conclusion of this paper expresses the beliefs of this learner's present and developing understanding of law and its relationship to conflict management.   2 Comments