A new alternative to dispute resolution, “Collaborative Family Practice“, is now the third resource in a lineup consisting of litigation, mediation,
and collaboration. And like mediation, its closest neighbor, it is
distinguished from litigation by employing non-adversarial techniques.
In a collaborative practice, the clients themselves conduct settlement negotiations with the lawyers by their sides so that client ownership of the process is combined with legal
protection. These negotiations often take place during four-way
meetings in which the lawyers act as advisors to the clients instead of
taking charge of the process. The lawyers are present more as
negotiation exemplars than as actual negotiators; when they do
negotiate, they stop short of taking control away from their clients.
the parties can’t reach agreement, then the lawyers must withdraw, and
neither they nor any member of their firms may represent the clients in
subsequent litigation. This is to ensure that there is no “holding
back”: the participants are committed to reaching a reasonable
settlement, and there’s no room to maneuver for litigation leverage. The
lawyers’ attitude, which they must demonstrate to their clients, is
that there will be no cross-examination later — not even a thought of
it. The matter will settle.
|According to a paper presented at the 1998 Annual Conference of the Academy of Family Mediators, collaborative lawyers should:
can bring to the negotiations their knowledge of the law, their ability
to analyze problems in the legal context, and their experience in
generating options to solve them. These attributes make vital
contributions to the success of the collaborative approach. But
collaborative law requires additional skills; for most lawyers, these
are new skills. Having renounced the possibility of litigation, one
cannot employ adversarial techniques — such as threatening to “go to
court” — to advance the negotiations. One must find other means of
persuasion; in a collaborative practice, the means of persuasion swing
180 degrees to adopt cooperative strategies.
four participants, with the clients themselves as the principal
negotiators, work cooperatively to reach a mutually acceptable
resolution of the issues. In order to carry out their roles, the clients
usually require a crash course in communication skills and the
rudiments of interest-based negotiations. Only so much of this can be
instilled across the desk in the office; it is better learned by
observing the lawyers at work in the actual negotiation sessions. This
is the key to collaborative practice: the lawyers, through their own
communication and their assistance in the negotiations, demonstrate how
to resolve conflicts and reach agreement. Knowing that they’re modeling
techniques for their clients, the lawyers must be careful to act in the
way they want their clients to act.
collaborative method has an immediate appeal to many lawyers. Instead
of using confrontation tactics and intimidating demands, the method
reaches for the basic goodness in the individuals and looks for win-win
solutions. Instead of accepting a byproduct of bitterness as the almost
inevitable result of the process, it aims to create a renewed respect
for — or a better understanding of — the other party, and a general
feeling that the agreement was a job well done. And hopefully, the
lessons learned about dignified conflict resolution will carry over to
solve future problems.
course, not all negotiations will end in agreement, but most will —
simply because of the determination of all participants (including the
collaborative lawyers) to reach that goal through fair and open dealing.
But if, despite all this, settlement eludes them, the parties will have
the satisfaction of knowing that they made every reasonable effort, and
that the lack of success was not for want of trying. They’ll also have a
clearer understanding of the issues involved so that if the matter must
be litigated, they’ll be in a better position to instruct their trial
counsel on the crux of the case — saving both time and money.
MacDonald is a retired-partner of the family law practice at MacDonald
& Partners in Toronto. He was Chair of the Steering Committee on
Collaborative Family Law (Toronto), and was the founding chairman of the
national family law section of the Canadian Bar Association and
founding president of the Family Mediation Service of Ontario.