Last week, while working essentially in a role of settlement counsel in a business transaction dispute, I came across another situation that highlighted the value of using Collaborative Law (“CL”). Unfortunately, this case was already in litigation, and has already crossed state lines via a change of venue motion which was granted.
But the good news is that the parties recognize that it would be in everyone’s interests to resolve this case early, rather than sink a lot of time and money into its litigation. There are a couple of legal issues which may either need a judge to ultimately decide them, or may at some appropriate point be handled by the parties with the help of a good mediator.
The question which has come up though, as it often does, is that of determining the right time to utilize the vehicle of mediation to help resolve disputes. Too early and the parties don’t have enough factual information to be able to assess the situation; the lawyers don’t have enough information to be able to wisely advise their clients in the mediated negotiations. Too late and the parties lose out on some of the primary benefits of mediation – saving money, saving time, avoiding the draining of human and emotional resources and damaging relationships.
Once the discovery process begins in a case, it tends to take on a life of its own. There is no mechanism in the litigation process to be able to stop when you have gathered all the relevant information you need and go into negotiation mode. It is also difficult for lawyers to make the strategic, mental and emotional shift mid-case from a gladiator fighting an adversarial win-lose war to negotiator looking for solutions that satisfy the interests of both parties, and facilitate enough of a win-win to reach resolution.
This is where CL comes into that middle ground between early mediation and protracted litigation. There are cases that aren’t right or not yet right for mediation and should not and don’t need to be litigated. CL gives the parties what they need – a streamlined structure and mechanisms for quick and efficient disclosure of relevant information – without also burdening them what they don’t want or need – a long, drawn out, expensive and damaging litigation process.
In Collaborative Law, the parties are required to immediately exchange all relevant information. That is mandated by the process agreement all parties sign at the beginning of the CL process. Unlike early mediation, the process provides a vehicle for the exchange of relevant information. It also provides the enforcement teeth: If parties don’t comply with the disclosure requirement, the process is terminated, the CL lawyers must withdraw as their representation is limited to the CL case, and the parties must then engage in litigation and retain new litigation counsel. This limited representation also solves the problem of lawyers having to make the shift from adversarial warrior to conflict resolution advocate and then back to hired gun. This is representation and advocacy without the war.
In the case I referred to earlier, CL would now give us the agile discovery process we need to get sufficient information to be able to counsel our client wisely at the negotiating table. And it would not call upon the lawyers to fill both the roles of fighting to win at all costs and negotiating to a solution that meets the parties’ interests and do some creative problem solving. And it would have done it without the several months spent drafting and filing pleadings, motion practice for a change of venue, changing states and courts, waiting for an initial court conference and getting to a point where the parties would like to mediate and reach resolution, but recognize that they need more information before they can adequately advise their clients with respect to what would be a good settlement.
These are just some of the reasons why CL is often the better equipped process to use to resolve many types of disputes.
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