(First of Two Parts)
Collaborative law has grown rapidly in Washington as an innovative and highly successful alternative dispute resolution process. The growth has predominantly occurred in divorce cases, but collaborative law is beginning to make some inroads into civil practice.
Recently, the American Bar Association issued a formal ethics opinion approving of the practice, the Washington State Bar Association has followed suit with an informal ethics opinion and, due to its enormous growth nationally, the National Conference of Commissioners on Uniform State Laws is drafting a Uniform Collaborative Law Act. The King County Bar Association now has a Collaborative Law Section.
One of the hallmarks of the collaborative law process is that attorneys are contractually disqualified from representing their clients in court. Lawyers without collaborative law training (and even some trained lawyers who lack much experience practicing collaborative law), often find the collaborative law process a bit mysterious. This article, by an attorney who is experienced both in litigation/adversarial settlement processes and in collaborative law, answers common questions.
The Collaborative Law Process
Q. Is collaborative law new or unproven?
A. Collaborative law was developed in 1990, so it is now 18 years in existence. It is about as new and unproven as no-fault divorce was in Washington in 19911 or the Parenting Act of 1987 was in 2005.
Nationwide, more than 20,000 attorneys have been trained in collaborative law. Internationally, thousands more have been trained. The collaborative law process has successfully resolved many tens of thousands of cases. It is a process that is accepted by the American Bar Association and the American Academy of Matrimonial Lawyers. Collaborative law has been the subject of many law review articles and studies, showing generally greater satisfaction by clients than adversarial processes. Several law schools are now teaching collaborative law courses.
Q. Isn’t collaborative law the same as what good attorneys do anyway?
A. All good attorneys try to settle their cases, in conventional and in collaborative law cases. However, that is where the similarities end. Here are some of the differences:
- Collaborative law is a unique process, with its own rules, conventions and methodologies that are designed to create a safe and unpressured environment that allows the parties to fully explore settlement options in a manner that is simply not possible (and often not even conceivable) in an adversarial negotiation.
- A basic premise in collaborative law is that the clients are able to make their own decisions and can best express their wishes and desires themselves.
- The measure of success in a collaborative law case is a durable agreement that does not require enforcement. (Settlements are, of course, enforceable if that becomes necessary.) To achieve durability in a settlement, the resolution has to have the quality that both parties are able to understand and fully own the agreement.
To do this, collaborative law uses different procedures and has a different focus from adversarial negotiations. In collaborative law, there can be no coercive day-before-trial settlement conferences with retired judges leaning on the parties, as that tends to only create resentments about their CR 2A agreement the next day. For example, because emotions in a divorce run so deep, collaborative law attorneys encourage clients to take time with any tentative agreements before finalizing them, to ensure that the agreement will be durable.
- Effective advocacy in the collaborative law process looks and feels very different from advocacy in an adversarial process. Adversarial and positional advocacy is both ineffective and counterproductive in the collaborative law process — this is part of the different sets of rules.
- As a unique process, collaborative law requires study and experience to achieve mastery. Experienced collaborative law attorneys become settlement specialists, devoting considerable time and effort studying and working with the intricacies of human conflict, so they can bring that understanding to preparing and educating their clients, and facilitating negotiations.
Q. Is collaborative law basically a marketing scheme?
A. If you consider letting people know you take litigated cases to be a marketing scheme for adversarial representation, then letting people know you are trained and experienced in collaborative law would also be marketing. Regardless of the outreach from individual lawyers, collaborative law is a different and unique process, with its own conventions and rules.
The international standard for minimum training is 42 hours before starting a first, easy case. Many consider it necessary to have advanced training and experience with dozens of collaborative law cases to start gaining real proficiency. There are not any known marketing schemes that have the steep learning curve of collaborative law.
Q. Do collaborative law cases take longer to settle?
A. Most collaborative law cases settle in a fraction of the investment of professional time that adversarial representation takes. In a collaborative law case, 100% of effort is spent helping the clients settle the case. No effort is wasted on preparation for a trial that is highly unlikely to occur.
Q. Is collaborative law mostly suited for couples who are basically in agreement and get along?
A. Collaborative law is a dispute resolution process that is well suited for people who have very significant disputes. The only thing that the clients need to agree on is a desire not to use an adversarial dispute resolution method. The training of collaborative law attorneys is about helping parties who have profound disputes reach resolutions, including those who may find it difficult to sit in the same room together.
Q. If the collaborative law process isn’t working well, are the clients stuck?
A. Collaborative law is a voluntary process. Although the attorneys are not allowed to represent the clients in any subsequent adversarial process, either client may terminate the process at any time for any reason.
Q. Do collaborative law professionals coax clients into settlement?
A. Because the goal is to achieve a durable agreement instead of a temporary cease-fire, any pressure by professionals would run completely contrary to the professional’s goals, training and practices. Instead, the professionals educate the clients about their situation and normally encourage clients to take their time to consider their options before finalizing any decision.
Ethics
Q. What are the basic ethical issues concerning collaborative law?
A. In 2007, the WSBA issued Informal Ethics Opinion No. 2170, which found the collaborative law process to be ethical, so long as the client gives informed consent. This opinion follows ABA Formal Ethics Opinion No. 07-447, approving of collaborative law.
Several states have examined the ethics of collaborative law and all have found it to be ethical. Even Formal Opinion No. 115 of Colorado’s voluntary bar association (sometimes incorrectly cited for the proposition that collaborative law is “unethical”) held that collaborative law is perfectly fine so long as attorneys do not also sign the participation agreement with the clients. The ABA opinion noted that even that restriction was based on a “faulty premise.”
Q. I practice litigation; should collaborative law matter to me?
A. RPC 1.4 requires all lawyers to consult with clients about the means by which the client’s objectives are to be accomplished to the extent reasonably necessary for the client to make informed decisions concerning the representation. Official Comment 5 notes that the client should be provided with sufficient information to intelligently participate in decisions concerning the objectives of representation and the means of representation.
Official Comment 5 to RPC 2.1 specifically provides in part:
… [W]hen a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.
Hence, under the RPCs, you are probably required to inform your clients about collaborative law so your client can make an informed decision about the process to pursue. If the client is to give informed consent, you need to be able to provide sufficient information in a fair and balanced manner.
Q. Are collaborative law clients informed about the limitations of the representation or possible risks?
A. The RPCs apply to all attorneys, including collaborative law attorneys. Hence, collaborative law attorneys ensure that their clients commence the process only with informed consent. This means that clients need to understand the limited scope of representation, the risks and the benefits of the process, and other available processes that are available to the clients, all described in a fair and balanced fashion.
J. Mark Weiss is a Seattle collaborative law attorney and mediator. He has practiced law since 1987 and is a Fellow of the American Academy of Matrimonial Lawyers. Weiss was named 2005 “Ken Weber Attorney of the Year” by the Washington State Bar Association Family Law Section. Weiss currently is a trustee of the King County Bar Association and a director of King County Collaborative Law. Weiss is a frequent speaker on family law matters and a collaborative law trainer. © J. Mark Weiss 2008.
1 The Washington Legislature adopted no-fault divorce with the Dissolution Act of 1973.
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