Time For A Better Way
Lots of lawyers aren’t going to like this column. It’s about a new way for the rest of us to think about legal representation.
Up front let me say, there’s always going to be conflict. People who disagree over business, property, divorce or next door neighbor stuff. But what if, rather than hire high priced lawyers to duke it out in court over months or even years, conflict was solved in a better, faster more productive way? It would still be legally binding – it just wouldn’t necessarily take so long or be so expensive. It definitely wouldn’t be so gut wrenching.
Enter the idea called “collaborative law.” Here’s how it works:
The guiding principal with lawyers who practice collaborative law is that everyone agrees upfront to work together in a
Putting the Puzzle Pieces of Agreement Together
respectful way to reach a settlement. No pit bull lawyer tactics are allowed. No promising to wring dry the opposition, filing mounds of paperwork or hiring private detectives to dig up dirt.
And clients of collaborative law counselors sign an agreement promising there will be no yelling, name calling or bickering about the past. Let’s face it, when you’re getting a divorce or suing your business partner or fighting with your family over an estate, it’s human nature to want to lash out with personal insults. That’s really counterproductive behavior. In collaborative law cases clients know that if the process becomes too combative both the lawyers will resign rather than participate in the ugliness. And both lawyers promise not to be involved in any litigation that might result.
Agree to Agree - The New Lawsuit Tactic
Collaborative law is all about the gentle compromise, the smoothest and quickest route to get clients out of unworkable situations. And if your case needs special expertise in a particular area – maybe a financial, labor law or even medical malpractice expert – the collaborative lawyer has a team of like minded associates who will join the process.
The only time you go to court is at the end of the process to simply get the state’s approval of your agreement.
In the past professional mediators have tried to fill this role but many aren’t lawyers and mediation sessions are often structured so the complaining parties sit in different rooms while the professional runs back and forth delivering messages and trying to make progress toward a solution. No doubt mediation has proved to be extremely useful but it can be a cumbersome process.
Now, with the collaborative law movement taking hold in states across the country even top notch mediators, like Lee Jay Berman, President of the American Institute of Mediation in Los Angeles, are embracing the trend and calling it a breath of fresh air for those in the conflict resolution business.
“It brings lawyers back to being Counselors at Law and putting their clients’ needs first – by its very definition,” Berman
Berman, Pres., American Institute of Mediation
told me. “And it brings outside consultants (therapists, accountants, etc.) into the issue in the way that they were intended – not as competing experts, paid to say the opposite, but as expert consultants assisting the team in reaching a mutually agreeable resolution.”
While all this might sound like a great new idea the fact is it was conceived twenty years ago by a Minnesota divorce lawyer named Stuart Webb. He was frustrated about the constant adversarial approach to legal problem solving so he started a new practice seeped in the idea of cooperative compromise. His web site’s opening line says it all: “Resolving divorce issues with dignity and support.”
Webb’s revolutionary idea of everyone joining hands for the client’s sake has already taken off. There are about 22 thousand lawyers trained in collaborative law worldwide. “I just heard there are lawyers now practicing collaborative divorce law in Iran,” he told me in an astonished voice.
When I told Webb my theory that many lawyers might not be embracing his idea for fear it would limit their billing hours he gently said, “The lawyer will still be making an hourly fee. They’d just be filling up their day with collaborative law cases. And they’d feel better about it at the end of the day.”
Webb was calling me during a break in a meeting of about 30 lawyers. “We were just talking inside about how we all got into collaborative law … how it re-energized those of us near burnout. I guarantee litigation lawyers don’t sit around and do that!”
In this financial day and age anything that can resolve disputes outside the court system will help ease the burden of ballooning dockets and save taxpayers money. As citizens first I’d think even the American Bar Association could get behind that.
I say let the collaborative movement spread! The next time you need a lawyer look for one in your state who practices this type law. I think you’ll find a lawyer who’s more interested in achieving a just settlement than watching the meter run.
{ 17 comments… read them below or add one }
ABQ Journal Reader Gretchen Walther writes:
"I want to write you a quick note to thank you for the wonderful Op-Ed piece you did on Collaborative Practice on Saturday January 16, 2010.
I am one of the founders of the movement in New Mexico and since 2001, I and my fellow collaborative lawyers have been doing all we can to get the concept of Collaborative Practice out to legal consumers. Your Op –Ed piece helps immensely with that.
One of the primary reasons divorce lawyers like doing collaborative divorce is because it is such a client centered process. It feels good to us to be using our time and energy to fashion productive results that concentrate on the ongoing nature of the family relationship once the divorce is over. We feel productive instead of destructive and it is very rewarding. Your article does a great job of explaining the client centered approach.
We collaborative lawyers believe that every lawyer should enter a case with the concept of the client’s long term relationships and goals. When we lawyers close our files and put them in storage, we need to remember that these families need to go on existing together for years to come. It is not fair or reasonable for us to create much destruction in a case and then wipe our hands of it while these families have to go on dealing with each other. It is presumptuous for a legal professional to have such a profound effect on a family with no regard for the outcome. With the collaborative movement, more lawyers are embracing this concept. This in itself is significant progress for the legal profession.
Thank you so much for spreading the word about Collaborative Practice.
Hi Diane, when this collaborative law movement started, many of us all ran to take a CLE on it – it was the next "big" thing. However, as I sat there and listened to the instructors (all lawyers), it sounded like mediation with a new label. Mediation and collaboration will only work, just as litigation, when the parties to the suit are amenable and willing to settle the matter. True, there are many blood-sucking colleagues who prefer to bite on glass than sip chardonnay; however, more often than not, the tension in most conflicts is caused by the parties to the lawsuit and their unrealistic demands and expectations.
In collaborative law, if the parties don't abide by the process then the lawyers step away, so what is resolved? Nothing. It is up to litigious Americans to turn the tide rather than look toward lawyers who generally are just lending life vests to people sinking in a watery black hole.
Lady Litigator – absolutely right! But we lay people take our cues from the "legal beagles" don't we? To me collaborative law is different than "plain" mediation because the facilitator sitting at the table KNOWS THE LAW – PRACTICES LAW and knows the best, fastest way to settle something so that all parties are protected. Mediators, as necessary and good as they are, are only looking for the compromise points.
I think collaborative law practice interests me because its a paradigm shift in thinking – not just for the warring parties but for the lawyers too. I'm always for finding a new way to accomplish something. And you have to admit, Lady Litigator, that our legal system could use a boot in the butt in several different areas – from legal services to court systems to the prosecutor's office – oh, don't get me started!
Sitting on the other side of the fence, I respectfully disagree with you on who's driving the bus, at times. More often than not I have tried to encourage a client to settle the matter but it's their ego which has been wronged and they just will not listen to reason. I have seen people spend/waste $15000 to settle a matter just prior to trial for $2500. It is good for me, of course; but at the end of the day client's always say: "I wasted $15K on my lawyer and had to pay that other guy anyway; what did they do for $15K?"
BTW – any mediator I have known has been a lawyer. I don't know where clients find non-lawyer mediators?
The man I quoted in the story, Lee Jay Berman, who runs a big mediation concern in LA is not a lawyer. He informs me that many mediators are not – that its two different skill sets.
I guess the point here is that those clients who seek out Collaborative Law lawyers are already in a mindset of non-confrontational problem solving. I wonder what would happen, Lady Litigator, if you took out a yellow pages ad touting your training in Colllaborative Law? I wonder if you'd attract less ego-driven clientele?
I love Diane's idea about how attorneys hold themselves out attracting clientele that are matched to their practice style! In my experience, there are two key variables that determine the likelihood that a dispute can be resolved without litigation. The first is a strong attorney with good "client control", a term of art used in the legal profession to describe a lawyer's ability to effectively manage their client's expectations. The second is a good match between the personality of the client and the personality of their lawyer (and then mediator, if they engage one). Diane is right that lay people take their lead from their legal experts and dispute resolution experts, which requires all of us to be strong in leading them. Strong, opinionated clients require strong, opinionated counsel. The trick is to find them strongly collaborative legal representation.
Facebook Friend Gabriel Dayan writes:
" It makes perfect sense. Lawyers who appear to be at each others throats in the courtroom are often the best of friends outside that environment. Also, a typical long threatening letter full of strong legal points will often conclude with: "With warmest regards, I do remain, yours very truly and sincerely."
Facebook Friend Karen Van Vactor writes:
" Like it!"
Facebook Friend Michelle Bart writes:
"Wow, should have seen this 2 years ago…Arbitration almost 2 years stinks. Thanks for the information, Diane"
Facebook Friend Andrea Mikulin Winters Kalbfleisch writes:
" What a novel approach to law – constructive instead of destructive!"
Reader Marsha Lichtenstein writes:
"Thanks for letting everyone know that among attorneys there is a growing interest in collaboration. It is a signal that we as a culture are ready for more dialogue in resolving disputes and less polarization (us versus them) and hostile confrontation.
I am a professional mediator and would like to correct your description of what mediators do and who are the mediators. First mediation is not a cumbersome process. It is much simpler than any other conflict resolution process including any process that involves using lawyers. Secondly, the cost is almost always lower because mediators charge less than lawyers charge (with the exception of lawyer mediators) and usually work solo. Thirdly, many lawyers have not been trained in mediation but feel they have they can advertise themselves as mediators because they have had many opportunities to negotiate with other attorneys. Attorneys who think they can mediate may be trying to adapt their adversarial skills to a collaborative model without ever having been trained in mediation, so what you are getting is a kind of mixed model, hit or miss approach.
Next, you are correct that many mediators are not lawyers. Since law has typically been an adversarial process, people that want to go into the field of mediation are different from the type of people that have been attracted to a career in law. We are generally interested in building relationships, creating dialog, and helping parties resolve disputes in ways that ensure everyone has some degree of satisfaction with the outcome (that is, we don’t share the ‘win/lose’ mentality of most lawyers). When I meet a lawyer who has become a mediator, that is, taken sufficient basic and advanced training to call himself a mediator…wow, that is a special person who has been able to grow beyond the socialization experiences of law school education.
While a handful of mediators may use “shuttle diplomacy”, where parties are in different rooms while the mediator travels back and forth, the predominant mediation model puts all the parties in the same room in order to reach agreement. Mediation is an alternative dispute resolution (ADR) process. ADR includes mediation, negotiation, settlement conference, early neutral evaluation, arbitration, and several hybrids. Mediation is the ADR process which allows parties the greatest amount of control over outcomes. What differentiates mediation from other forms of alternative dispute resolution is its “best practice” of party self-determination, the practice of supporting parties to make voluntary, non-coerced decisions.
And by the way, mediators may also have a team of experts: financial advisers, attorneys, real estate appraisers, accountants, and any other type of expertise needed to successfully resolve a dispute. Most mediators are process specialists although some are both, content and process experts. For example, I am a family mediator and in addition to my professional training in mediation, I have a background in family systems, adolescent development, family substance abuse, child abuse and neglect, etc.
The Association of Conflict Resolution is a major professional organization for mediators. You can find a lot of information at that site (http://www.acrnet.org/). "
Reader Marsha Lichtenstein writes:
"Thanks for letting everyone know that among attorneys there is a growing interest in collaboration. It is a signal that we as a culture are ready for more dialogue in resolving disputes and less polarization (us versus them) and hostile confrontation.
I am a professional mediator and would like to correct your description of what mediators do and who are the mediators. First mediation is not a cumbersome process. It is much simpler than any other conflict resolution process including any process that involves using lawyers. Secondly, the cost is almost always lower because mediators charge less than lawyers charge (with the exception of lawyer mediators) and usually work solo. Thirdly, many lawyers have not been trained in mediation but feel they have they can advertise themselves as mediators because they have had many opportunities to negotiate with other attorneys. Attorneys who think they can mediate may be trying to adapt their adversarial skills to a collaborative model without ever having been trained in mediation, so what you are getting is a kind of mixed model, hit or miss approach.
Next, you are correct that many mediators are not lawyers. Since law has typically been an adversarial process, people that want to go into the field of mediation are different from the type of people that have been attracted to a career in law. We are generally interested in building relationships, creating dialog, and helping parties resolve disputes in ways that ensure everyone has some degree of satisfaction with the outcome (that is, we don’t share the ‘win/lose’ mentality of most lawyers). When I meet a lawyer who has become a mediator, that is, taken sufficient basic and advanced training to call himself a mediator…wow, that is a special person who has been able to grow beyond the socialization experiences of law school education.
While a handful of mediators may use “shuttle diplomacy”, where parties are in different rooms while the mediator travels back and forth, the predominant mediation model puts all the parties in the same room in order to reach agreement. Mediation is an alternative dispute resolution (ADR) process. ADR includes mediation, negotiation, settlement conference, early neutral evaluation, arbitration, and several hybrids. Mediation is the ADR process which allows parties the greatest amount of control over outcomes. What differentiates mediation from other forms of alternative dispute resolution is its “best practice” of party self-determination, the practice of supporting parties to make voluntary, non-coerced decisions.
And by the way, mediators may also have a team of experts: financial advisers, attorneys, real estate appraisers, accountants, and any other type of expertise needed to successfully resolve a dispute. Most mediators are process specialists although some are both, content and process experts. For example, I am a family mediator and in addition to my professional training in mediation, I have a background in family systems, adolescent development, family substance abuse, child abuse and neglect, etc.
The Association of Conflict Resolution is a major professional organization for mediators. You can find a lot of information at that site (http://www.acrnet.org/). "
"Thanks, Marsha!
You've added great information to my restrictive 800 words or less format.
I'm with you in hoping we really have evolved as a culture and are at a time when more and more people are ready to TALK about resolving disputes!"
ABQ Journal Reader David Levin writes:
"Congratulations on a clear, thoughtful piece on Collaborative Law!
There is a true need for the public to learn of alternatives to the traditional legal method of dispute resolution. You have made a significant contribution to New Mexico. I would like to discuss "mediation," a term which covers many different processes and styles.
One style, which one could call litigation mediation, is practiced mainly by lawyers and emphasizes shuttle diplomacy. This style does fit some circumstances. Another style which is more commonly taught is more facilitative, and emphasizes joint sessions with occasional individual sessions. Mediation can also bring in experts with subject matter knowledge. Mediation is not always "cumbersome" or designed to separate people. There are other styles.
We need to support all forms of ADR (Alternative Methods of Dispute
Resolution). There are cases where traditional litigation is
appropriate and needed. There are even more cases where an appropriate form of ADR would be helpful. We need to help people become informed about all ADR methods. We need to support people making thoughtful decisions about which method fits for them. A tenet of ADR is informed and fair self determination. A first decision needs to be about which process to use, from traditional litigation through the spectrum of ADR.
New Mexico has been a ADR leader and an innovator. ADR is not a static field. New methods and best practices are constantly emerging, such as Collaborative Law among others. There is an on-going public need for more information. Your article helps legitimize an exciting ADR development, Collaborative Law. Bravo!
I look forward to reading your pieces. If I may be of any assistance, please let me know.
Thank you.
David Levin
Director, Court Alternatives
Second Judicial District Court
State of New Mexico
Co-Chair, ADR Committee
State Bar of New Mexico
Thanks for the extra enlightenment, Mr. Levin. I'm always for thinking out side the box and I'm proud my home state of New Mexico is such a leader in this field.
Thanks for taking the time to write! ~DD
Never heard of this before dd, but I think it would be a wise way to go, this way you would not have Lawyers dragging out Lawsuits for 7 months within a court system, only to bill and make money for themselves! and I think you know what I am talking about huh? Great story my friend !
I think we all know what you are talking about Adrian! You were very brave to tell your story, the world needed to know the other side to the constant PR spin. It’s a pity that 12 people didn”t listen in 2005!