Bar News - December 13, 2013
Collaborative Law: Not Just for Divorce
By: Kristen Senz
The high cost, long timelines, destroyed relationships, and narrow resolutions associated with litigation have led some attorneys in New Hampshire – particularly family law attorneys – to find new ways to resolve conflicts between parties.
Over the past five years, collaborative law has gained a foothold as a less acrimonious way of resolving divorce cases, while preserving the role of the lawyer as advocate. Now, collaborative law attorneys in New Hampshire are exploring how to apply the process to civil cases, including business and employment disputes.
The Collaborative Law Alliance of New Hampshire (CLANH) was formed in the mid-1990s by attorneys interested in a multidisciplinary approach to dispute resolution. While the primary focus in the Granite State was on divorce cases, a group of Massachusetts attorneys in 2000 began exploring whether the collaborative approach could be used in business disputes, as well as in environmental, real estate, employment, insurance, and professional malpractice cases.
Resolving these types of civil cases without going to court is the way of the future, says Massachusetts attorney Michael Zeytoonian, who championed the idea at a meeting of the new CLANH civil collaborative practice group in Manchester last month. “Litigation, I think, is going to grow old in a hurry, much faster than lawyers are prepared for,” he predicted.
Londonderry attorney Bruce Dorner, one of the founding members of the Collaborative Law Alliance and a member of the civil collaborative practice group, says collaborative law is the best dispute-resolution alternative for some clients, because it provides a flexible process that fosters open communication and creative solutions. Expanding collaborative law to include civil cases gives collaborative attorneys another option to offer their clients, and having more options often makes clients more comfortable.
“It’s kind of like an attitude where you’re looking at peacemaker versus gladiator. Each has a role, each is valuable, and there are times when you have to move toward one end of that spectrum or the other,” Dorner said. “… I think what it boils down to is the practice of law is evolving and changing much faster than it ever has in the past, and we need to look at these new methods and what opportunities they present.”
Zeytoonian is a former partner and is now of counsel at Massachusetts-based Hutchings Barsamian and still litigates cases in that capacity. But in his work as Dispute Resolution Counsel LLC, he uses collaborative processes to resolve conflicts for his clients and tries to spread the word about collaborative law to attorneys and other professionals.
For the uninitiated, the collaborative process is often facilitated by a coach who specializes in communication and relationships. Parties commit to resolving their dispute outside the court system, agree to full disclosure of all relevant information, and jointly hire neutral experts. They also agree to a disqualifying rule that forbids them from using the same attorneys if negotiations break down and a lawsuit is filed. Civil cases in which the parties have a common interest, besides money, or a reason to continue a relationship after the case concludes – a divorce involving children or the dissolution of a family business, for example – are the best candidates for the collaborative model.
“Our feeling within the civil arena is that this is going to give parties more control; it’s more efficient… and it’s going to be more cost-effective overall,” said Loretta Brady, a mediation-trained collaborative law coach and clinical psychologist.
The collaborative law process isn’t inexpensive, but it does avoid some of the more costly drawbacks of litigation, eliminating discovery disputes and other conflict points. “We take a very holistic approach by involving neutral professionals to facilitate the discussion and the determinations about accuracy of information for both or all parties,” Dorner said. “In doing so, we avoid the ‘My expert is better than your expert’ battle, which generally leads to a cost savings.”
In Massachusetts, the biggest obstacles to applying the collaborative model to civil cases has been a lack of awareness or misconceptions about collaborative law and how it works. “People think, ‘Oh, this is a bunch of hippie peacemakers who get together in a room and pray or something,’” said Zeytoonian, who also chairs the Massachusetts Bar Association’s ADR Section.
Recently, the Massachusetts Collaborative Law Council has made some headway in its effort to educate the public and earn credibility. Last year, the council began a two-year pilot project with the Massachusetts Commission Against Discrimination (MCAD), the governmental agency that enforces discrimination laws and handles complaints. The council has trained MCAD investigators to identify cases for which the collaborative model might be suitable. About seven cases have entered the collaborative process so far and one has settled, Zeytoonian said. The project aims to provide collaborative law attorneys with valuable experience (the cases are essentially pro bono) while increasing the awareness of the model among state officials and members of the public.
“You’ve got to look for those opportunities that will give you credibility,” Zeytoonian told four attorneys and two collaborative law coaches, including Dorner and Brady, who attended the practice group meeting in Manchester last month.
One hallmark of collaborative cases in the civil context is the flexible nature of the process. In some cases, the coach – usually a trained organizational consultant or a person otherwise skilled in organizational dynamics – can function more like a mediator for a portion of the process. In others, the coach role is removed. In all cases, the parties actively participate in developing the resolution, which can take on a wide variety of forms.
“The beauty of collaborative is that you’ve got the freedom to tailor the process to the case,” Zeytoonian said. “And you can schedule it around the parties’ needs.”
Dorner said the Collaborative Law Alliance of New Hampshire has found it challenging to introduce collaborative practice in the state. Just within the past year, he said, the alliance has finally been allowed to distribute brochures at New Hampshire courthouses. “Judges don’t tell people about collaborative,” Dorner said.
Similarly, it took decades for mediation and arbitration to gain traction and credibility in the court system. And convincing litigators to consider a collaborative process for civil cases is likely to be challenging as well.
Collaborative law removes the concept of “winning” from the dispute equation and, in many cases, reduces the number of billable hours associated with a case. In theory, because cases are often resolved more quickly through the collaborative process, an attorney practicing collaborative law could take more cases and still make a living. But that isn’t the reality today, in Massachusetts or New Hampshire.
“We can’t seem to get the volume going in New Hampshire,” Dorner said. “We’ve got a core group (of attorneys), but we still aren’t getting the cases.”
Neither New Hampshire nor Massachusetts has adopted the ABA-approved Uniform Collaborative Law Act (UCLA) as other states, such as California, North Carolina and Texas, have. The New Hampshire group hasn’t put the UCLA forward as a legislative priority.
“Trying to advance this would take a major time commitment and a lot of education,” Dorner said. “We haven’t had the resources to get into it in-depth. Getting legislation passed is not an easy process.”
But both the Collaborative Law Alliance of New Hampshire and the Massachusetts Collaborative Law Council are affiliated with the International Academy of Collaborative Professionals, which has more than 5,000 members from 24 countries, according to its website. The collaborative law movement, as practitioners often refer to it, has caught on more quickly in other countries, despite the early enthusiasm for it here. Zeytoonian attributes that to America’s litigious culture.
“We’ve got a lot of work to do to educate people,” he told the practice group. “The next generation of lawyers is going to benefit from what you are doing.”
New Hampshire has five regional collaborative law practice groups that meet regularly and deal mostly with the model’s application in divorce and other family law cases. The civil practice group meets from 6-7:30 p.m. on the third Wednesday of every month at Dyn Inc. on Dow Street in Manchester.
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