Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts have provided helpful suggestions for 'changing the game,' though these ideas 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. 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 in the participation agreement 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.)
Professor Julie Macfarlane's landmark study 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 CL parties generally benefited from improved communication and were satisfied with the process and their lawyers.
This article identifies four potential perils of CL. First, CL clients may have unrealistic expectations about the lawyers' role, the time and expense involved, and implications of the disqualification agreement. Second, the CL process may result in excessive pressure to settle. Third, CL practitioners may violate rules of professional conduct. Fourth, CL practitioners may develop a quasi-religious orthodoxy that inhibits innovation and discourages clients from exercising legitimate process choices.
This article concludes that CL is an important innovation offering great promise and posing real risks. It offers suggestions for minimizing the risks.
John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation. The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. His website, where you can download his publications, is http://www.law.missouri.edu/lande.