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Bar News - November 17, 2000 Collaborative Law Introduced By: Honey Hastings LITIGATION IS A better method of conflict resolution than shootouts on Main Street, but it is likely poison to the relationship between the parties. Thus, it is a poor choice for family disputes (such as divorce, custody and probate) and business disputes where future relationships are necessary or desirable. An increasing number of divorcing couples are seeking a "non-adversarial" divorce. Many such folks are afraid to even consult lawyers, thinking that doing so makes a hostile divorce inevitable. This is one reason for the increase in "double pro se" cases (neither side has a lawyer). One result is repeated use of the courts to "fix" agreements written by lay persons who have received no advice on their legal rights. (See "Frequent Filers," Oct. 6, 2000 Bar News, p.1.) Collaborative law is a new form of alternate dispute resolution that offers divorcing couples a hands-on settlement with legal representation. It is a method of resolving divorce issues with the active participation of a lawyer for each party. By contract, both parties and both lawyers agree not to litigate. If negotiations break down, the lawyers are disqualified from representing their clients in litigation. The parties would have to hire litigation counsel. In collaborative law, appraisers, custody evaluators and other experts are retained jointly and are also disqualified should litigation occur. This "disqualification provision" is the key to the success of collaborative law. It means that all four participants are committed to settlement. No settlement means failure. A lawyer cannot use the threat of litigation to pressure for settlement. Experienced collaborative law practitioners in other states report a very low rate of cases ending in litigation. The lawyers work cooperatively to structure the process and facilitate settlement. Most of the negotiations are conducted in four-way meetings with agendas planned in advance by counsel. Discovery is by agreement; a commitment to full and open discovery is part of the basic contract. If a particular issue is resistant to settlement, a mediator may be brought in; some agree to use a private judge to resolve that issue. Experienced practitioners say that both of these situations are rare. According to Stu Webb, the "inventor" of collaborative law, the advantages of the new form of dispute resolution include: • Each party is represented by an attorney of his or her choice from the outset. This is usually not the case in private mediation, where clients do not bring in attorneys until after the mediation has begun or possibly even at the conclusion of mediation. • The process allows lawyers to focus on the settlement of the case without the threat of going to court lurking in the background. Frequently it is the norm to bypass settlement in the initial stages because the parties are preoccupied with posturing and the lawyers are absorbed by the discovery process. • There is continuity between settlement and processing the final dissolution. This is all too often not the case in mediation, with the resulting problem of the lawyers not liking the mediated settlement. • With the focus on settlement and avoiding court, the lawyers and clients are motivated to learn what works to achieve settlement; how to problem-solve without getting "plugged in" to the emotional content. Lawyers who participate in this program will be motivated to develop win-win settlement skills such as those practiced in mediation. A group of New Hampshire family lawyers has been meeting monthly to plan for making collaborative law part of their practices. (In 1997, an attempt to develop a family law collaborative law community of interest in central NH failed. Lessons learned are being applied in this new effort.) To date three NH lawyers have been trained in collaborative law: John Cameron, Honey Hastings and Karen Levitt. The New Hampshire group, which includes these three, is presenting a five-hour training on Dec. 14 at the Bar Center in Concord from 9 a.m. to 3 p.m. This training session will give lawyers the basic knowledge and skills needed to include collaborative law services in their practices. It will highlight collaborative law basics, ethics and professionalism, and offer attorneys advice on how to conduct a collaborative law case. The session will be conducted by Cameron, Hastings and Rita Pollak, an experienced CL attorney from Massachusetts. 5.0 hours of NHMCLE credit has been applied for for the session, including 1 hour of ethics credit. Honey Hastings is a family law attorney whose practice is in Amherst. She is the author of The New Hampshire Divorce Handbook. |
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