Collaborative Practice is an out-of-court, non-adversarial/consensual, client-centered conflict resolution process that is remarkably different in multiple ways from any dispute[i] resolution processes. For more than 30 years, as I’ve continued to teach law students about alternative dispute resolution (ADR) processes, I have repeatedly amended, revised and updated the curriculum in response to the constant growth, expansion and proliferation of creative options for the resolution of disputes. When I first designed the curriculum in 1989, Collaborative Practice didn’t exist. Collaborative “Law[ii]” first emerged as an “idea” in 1990 and since then this remarkable interdisciplinary process has grown and expanded to the extent that there are now thousands of Collaborative Professionals throughout the United States and the world. Interdisciplinary Collaborative Practice arguably does not fit within the context of a course that is limited to law students studying ADR.[iii] Nevertheless, because of its widespread popularity, an ADR course is not complete without at least including it as a module in the course curriculum.
To educate law students regarding the various dispute resolution process options my course curriculum consists of three modules and the multiple processes are organized on a spectrum categorized as adjudicative or consensual[iv]. The first module focuses on adjudicative processes (meaning any process in which someone other than the parties has the authority to decide or the “power to judge”) and the legal negotiation practices of lawyers in those processes. Students engage in exercises to simulate those negotiation practices “in the shadow of the law[v].” Each attorney gathers evidence, evaluates the strengths or weaknesses of the case and establishes negotiation positions in the form of “claims” or “demands” knowing someone other than the clients is empowered to decide if the case doesn’t settle. Such adjudication-related settlement processes are technically “consensual.” But the active involvement of the clients is often limited particularly when the focus of the dispute involves competing “prophesies” of attorneys regarding the “likely outcome” of a trial[vi]. These initial exercises provide a basis for students to distinguish ADR processes on the spectrum which are “lawyer-centered” compared with “client-centered” processes addressed in the rest of the semester.
The second module introduces students to a variety of Mediation theories and practices. Distinguishing key aspects of these various theories and practices of mediators is indispensable to the study of Collaborative Practice as illustrated by the standards of the International Association of Collaborative Professionals (IACP) which require Collaborative Professionals to have “training in client centered, facilitative conflict resolution of the kind typically taught in mediation training (interest based, narrative, or transformative mediation programs).[vii]” (Emphasis added.) Studying multiple Mediation theories, approaches of mediators, and involvement of clients in Mediation highlights the importance of client self-determination[viii] in “client-centered, facilitative conflict resolution processes” compared with adversarial, “evaluative,” lawyer-centered processes.[ix] Moreover, helping students distinguish between the various theories and approaches of mediators illustrates a remarkable feature of Collaborative Practice, namely, the collaborative lawyer’s intentional commitment to integrate facilitative, client-centered conflict resolution practices fully into the collaborative lawyer’s toolbox[x]. With this foundation in place, students are introduced next to some of the essential aspects of Collaborative Practice.
Essentials Of Collaborative Practice
Some of the essentials of interdisciplinary Collaborative Practice introduced in the third module include: the collaborative paradigm shift; select provisions from a typical collaborative participation agreement; and important aspects of working in an interdisciplinary collaborative team. In addition, students are introduced to the UCLA[xi] and the IACP Standards And Ethics[xii].
The Paradigm Shift
The collaborative “paradigm shift” is an essential feature of Collaborative Practice. According to Webster’s Dictionary, the word “shift” means “to move or to change a position, direction, opinion or belief.” The practical meaning of this “shift” or “change” is readily apparent when facilitative, client-centered, non-adversarial negotiation practices of collaborative lawyers are compared with competitive negotiation practices of lawyers representing clients in the traditional adversarial litigation “paradigm.” Compared with such competitive/adversarial judgment-oriented negotiation practices, the collaborative lawyer avoids the potentially counterproductive impact of injecting competitive adversarial opinions and judgments into the process. Focusing upon client self-determination, the collaborative lawyer’s identity is redefined as a “helping professional.[xiii]” The collaborative paradigm involves more than merely helping clients avoid the damaging effects of adversarial litigation. The essence of judgment involves power, force and, as some theorists suggest, a potential for violence[xiv]. Helping involves healing and the potential for peace. Thus, defining the collaborative lawyer’s role in the collaborative paradigm as a helping professional redefines the practice of law as a healing profession and the role of lawyer as peacemaker.
The Collaborative Participation Agreement
At the outset of each matter, the clients and the professionals enter into a Collaborative Participation Agreement. An essential feature of that agreement is a clause which provides that if the matter does not settle, the Collaborative Professionals shall be disqualified from proceeding further with the matter. Importantly, this is a mutual commitment of all lawyers in a matter who would otherwise remain free to move the unresolved conflict into the litigation arena. Experienced and successful collaborative lawyers fully embrace this redefined advocacy role and do not view it in any way as a hindrance. Instead, once that contractual (and personal) commitment has been made, a metaphorical door opens to allow all of the Collaborative Professionals to enter into authentic relationships with their clients and each other as conflict resolvers to help their clients. Collaborative Professionals fully understand and acknowledge how transparency, confidentiality and privilege apply to each professional’s participation[xv].
Other important provisions in the agreement include: a commitment to voluntarily disclose all information which is relevant and material to the matters to be resolved; promises not to use threats of litigation to force or coerce a particular outcome; to negotiate in good faith; and to take a thoughtful and constructive approach on all unresolved questions in the interest of reaching agreements. While collaborative lawyers certainly continue to represent clients in accordance with appropriate ethical standards, this “redefinition” of the nature of “legal advocacy” offers a refreshing alternative for lawyers seeking to align their professional identity and practices with their highest personal values.
The Collaborative Team & Structure of the Process
The interdisciplinary collaborative team typically includes mental health professionals and financial professionals, all of whom have mediation training[xvi]. The process is flexibly designed usually to include group meetings with all professionals and clients as well as separate meetings among the professionals. Clients in conflict often encounter seemingly insurmountable obstacles and in such situations, Collaborative Professionals utilize their best conflict resolution skills and training to help clients address and resolve the issues in dispute. Before each meeting, the collaborative team engages in pre-briefing to identify potential sources of conflict and to create an agenda and plan for constructively approaching difficult issues. The professionals also meet after each group meeting for important discussion and de-briefing with each other. Throughout this process, a significant degree of trust and civility is required to move beyond impasse.
In family matters, the insight, training, and skills of mental health professionals are indispensable to assist with issues involving children, emotional trauma, or other psychological dynamics. Likewise, the financial neutral will gather documents and discovery information in one place resulting in a significant savings of professional fees that would otherwise be spent in the discovery process. After the financial professional gathers and organizes financial data, informational reports are presented to everyone from a neutral perspective. When negotiations begin based on this neutrally constructed presentation of information and facts, there is less likelihood that clients will become entrenched at the outset in separate, competitive positions.[xvii] The collaborative team is most effective when each member of the team respects and acknowledges each other as equals. No Collaborative Professional is superior to any other and no individual is more “in control” of the process than any other. Collaborative Professionals unanimously agree that the team is indispensable to the collaborative process and when obstacles are encountered, they trust the process and the other members of the team. These important aspects of the interdisciplinary collaborative team process are quite different from the dominant role lawyers enjoy when practicing within the litigation paradigm. Thus, experienced trial lawyers sometimes find it difficult to embrace fully all aspects of the collaborative paradigm shift. This presents less of an issue for students because they have yet to develop such litigation-oriented habits and expectations.
Compared with adjudicative processes which focus backward upon proof of historic facts and persuasion of the decision-maker, consensual processes focus forward on constructive conflict resolution. Each generation of new lawyers is encouraged to explore the ever-changing landscape of alternatives for the resolution of disputes and to fulfill the following hundred year-old (and timeless) pledge of Justice Holmes which causes me to return to the classroom each year: “Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it.[xviii]
[i] At the outset, distinguishing between the terms human “conflict” and legal “dispute” is important for the study of Collaborative Practice in the context of an ADR course. See generally, Bernard Mayer, The Dynamics Of Conflict Resolution: A Practitioner’s Guide, Jossey-Bass, Inc. pp. 4-5 (2000); Kenneth Cloke, Mediating Dangerously: The Fontiers Of Conflict Resolution, Jossey-Bass, Inc. (2001); Dispute Resolution And Lawyers, A Contemporary Approach, 6th ed., Riskin, Guthrie, Reuben, Robbennholt, Welsh, Hinshaw, West Academic, pp. 2-6 (2019).
[ii] The term “Collaborative Law” reflects the early adoption of the collaborative process among lawyers while the term “Collaborative Practice” denotes the inclusion of practitioners from multiple disciplines, including collaboratively trained mental health professionals and financial professionals (“collaborative practitioners.”)
[iii] Formal training for interdisciplinary Collaborative Practice typically involves trainers from multiple disciplines. For this reason, I invite collaborative practitioner/colleagues from various professional disciplines to join classes focused on collaborative practice.
[iv] The study of “negotiation” is encompassed within all processes on the spectrum.
[v] See Robert H. Mnookin and Lewis Kornhauser, Bargaining In The Shadow Of The Law, 88 Yale L.J. 950 (1979).
[vi] “The prophesies of what the courts will do in fact…are what I mean by the law.” Oliver Wendell Holmes, The Path Of The Law, 10 Harv. L. Rev. 457, 461 (1897) in Collected Legal Papers, The Lawbook Exchange, Ltd., (2006).
[vii] IACP Minimum Standards For Collaborative Professionals, Sec. 2.3 (Rev. 2014).
[viii] Model Standards of Conduct For Mediators, Standard One. (“A mediator shall conduct the mediation based on the principle of party self-determination.”)
[ix] Many scholars and commentators have attempted to describe, categorize and explain various Mediation theories and practices of Mediators and participants in Mediation. See e.g., Leonard Riskin, Understanding Mediators’ Orientations, Strategies, And Techniques: A Grid For The Perplexed, 1 Harv. Neg. L. Rev. 7 (1996); Leonard Riskin, Replacing the Mediator Orientation Grids, Again” The New New Grid System, 23 Alternatives to High Cost Litig., 127 (2005); Joan B. Kelly, A Decade of Divorce Mediation Research, 34 Fam & Conciliation CT. Rev. 373 (1996). A detailed exploration of Mediation is beyond the scope of this article.
[x] Unlike the contractual commitment of collaborative lawyers, attorneys representing clients in mediation do not necessarily make a deliberate, intentional commitment to facilitative negotiation.
[xi] As of the date of this article, the Uniform Collaborative Law Act has been passed in 23 states.
[xii] The IACP has adopted Standards And Ethics which includes “Minimum Standards For Collaborative Professionals.” See, https://www.collaborativepractice.com/.
[xiii] Pauline H. Tesler, “Collaborative Family Law,” Pepperdine Dispute Resolution Law Journal, Vol. 4, Issue 3, pp.2-3 (2004) (Discussing Collaborative Practice as a helping profession.)
[xiv] Cf. Marshall B. Rosenberg, Non Violent Communication, A Language Of Life, PuddleDancer Press, (2005) (Describing judgment as a form of violence.)
[xv] The Agreement also specifies the conditions under which a professional may resign or the Collaborative Process will terminate based on non-compliance with the IACP Standards and Ethics.
[xvi] The specific make-up of a team may vary depending upon the customs and practices within different a particular community. At the very least, a “collaborative matter” requires two collaborative lawyers.
[xvii] In many settlement processes, lawyers typically prepare comprehensive “claims for relief” or “proposed orders” prior to the beginning of the process, thus immersing everyone in positional negotiations before the negotiation process has begun.
[xviii] Holmes, Collected Legal Papers, p. 194 (1920.)
Mark Soboslai is a lawyer in Westport, Connecticut. He began working as a Mediator in 1980 while employed with the State of Connecticut Superior Court, Family Relations Division. Since 1989, he has been an Adjunct Professor of Law at Quinnipiac University School Of Law. After many years in private practice of Family Law and Mediation, his practice now focuses primarily upon Collaborative Practice and Mediation. He is a member of the IACP Education And Training Committee and Practice Group Development Committee; the American Bar Association Dispute Resolution/Collaborative Law Subcommittee; the Connecticut Bar Association Dispute Resolution Committee and Family Law Section. He is a member of the Connecticut Council For Non Adversarial Divorce and two Collaborative practice groups: Collaborative Divorce Professionals of Fairfield County and Collaborative Divorce CT. He is also a member of MyCollaborativeTeam (MCT).
Leave a Reply