COLLABORATIVE LAW: INTRODUCTION
The Ohio Rules of Professional Conduct remind us, that as attorneys we function not only as advocates in adversarial situations, but also as negotiators, evaluators and advisors. The Rules outline our affirmative duty to provide information reasonably necessary to inform clients or other persons seeking our advice of the advantages and disadvantages of proposed courses of conduct which includes discussion of the client’s or other person’s options and alternatives. The Rules also provide that it is our clients who determine the scope of our representation and that we must respect our clients’ decisions concerning the objectives of that representation. Moreover, the Rules recognize that a lawyer’s advice, couched in narrow legal terms, may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant; simply put, “Purely technical legal advice, therefore, can sometimes be inadequate.” 
Collaborative law is a method or process, if you will, which enables attorneys to fulfill their professional responsibilities as proscribed by the Rules of Professional Conduct in a way unlike any other. The skills and knowledge necessary to function as a lawyer in a formal Collaborative Process include knowledge of legal standards and procedure, communication skills and an aptitude for empathetic listening which will enable a lawyer to understand the underlying goals and interests of a client. Collaborative law embodies a nonjudgmental approach to problem solving and it requires of most lawyers a significant “paradigm shift” in the way they think about their roles and how they can help accomplish the task at hand. With the advent of collaborative law, clients are asking their lawyers to practice their learned profession in ways not taught in law school.
Our clients come to us is for assistance with solving problems. These problems present themselves as conflict in the lives of individuals, families and businesses. Whether it is a medical malpractice claim; a contract dispute; a will contest; a small business break-up; a motor vehicle accident with multiple parties and competing interests; or, a family dispute, conflict presents itself in all of our lives, and as members of communities we have historically turned to “the law” to provide context and procedure for resolution. Indeed, the Code of King Ur-Nammu of Ur (2112-2095 BCE), is the oldest known surviving tablet containing a code of law.
Today, parties have a continuum of process options available to them when they face conflict. The first choice is often to avoid the conflict. This is often the easiest choice, but obviously a choice with the direst of consequences. If, however, a decision is made to change the status quo, and take on the conflict, parties have an array of choices ranging from a self-help “kitchen table” approach (akin to duking it out at the OK Corral), or they can hire intermediaries and undertake mediation, collaboration, arbitration or litigation; all are accepted forms of conflict resolution with their own best times and places.
When individuals, businesses and, indeed, lawyers, are facing conflict, we can respond with aggression and suppression, accommodation and surrender, avoidance and apathy, compromise and conciliation, or collaboration and dialogue. “Between stimulus and response there is a space. In that space lays our freedom and power to choose our response. In those choices lie our growth and happiness.” Think of the Exxon Valdez case; the BP Oil Spill; Congress; your most recent protracted litigation file; your last dispute with a spouse, parent, child or law partner. What happened? What do you wish would have happened?
When you consider how the 2011 amendments to the Ohio Rules of Professional Conduct apply to your practice and you take into account the practical considerations and effects on people when recommending a specific course of action, think about what Abraham Lincoln prophetically advised young lawyers in 1850, in his Notes for a Law Lecture:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
HOW IT WORKS
Collaborative law is a voluntary, contractually based dispute resolution process for parties who wish to negotiate a resolution of their conflict, rather than having a ruling imposed upon them by a court or arbitrator. The first distinctive feature of collaborative law, as compared to mediation, is that parties in a Collaborative process are always represented throughout by lawyers (collaborative lawyers); the presence or participation of a facilitative neutral is not required (although, as I will explain below, there are various roles for neutrals to play in appropriate circumstances in most Collaborative Process cases).
The second pillar of collaborative law is that the collaborative lawyers, hired by their clients to conduct the Collaborative Process, are hired only for the limited purpose of negotiating agreements. Most clients in most instances are only looking for an efficient and effective way to get beyond their conflict. As participants in a Collaborative Process, the collaborative lawyers’ services are unbundled. If impasse is reached, and the matter subsequently requires decision by a third party trier of fact, different lawyers, who do not have a business relationship with the original collaborative lawyers, must be retained by each party to handle any ensuing litigation. The tie that binds, and what makes this dispute resolution process different from all others, is that the parties agree in advance, that their respective collaborative lawyers will be disqualified (the disqualification clause) from further representation if agreements are not reached during the Collaborative Process. To take the next step and litigate, each party must retain new litigation counsel and the collaborative lawyers will not participate in any further discussions or actions involving the matter in dispute.
The structure of the actual Collaborative Process is set forth in the parties’ formal written agreement to collaborate (the Participation Agreement). The Participation Agreement becomes the interim rule book, so to speak, and it will contain the parameters of what will become for the disputants, a formally defined process to facilitate resolution of their particular dispute. Pursuant to the terms of the Participation Agreement the process will only begin after the agreement is signed by all parties. A Participation Agreement’s essential elements include: (1) identification of the matter to be resolved; (2) identification of the collaborative lawyers and any other participants; (3) the “disqualification clause” referenced above; (4) a provision requiring full and complete disclosure of all material information; and, (5) a clause conferring evidentiary privilege, with certain exceptions, for process participants and all of their collaborative communications made during the settlement process. The agreement will also typically reiterate the premise that if either party, at any time, for any reason, chooses to withdraw from the Collaborative process, it will be terminated, and litigation may follow. Thus, the disqualification clause provides added incentive, to both clients and lawyers, to remain at the negotiating table in search of creative, mutually acceptable solutions despite incidental difficulties which inevitably arise during the untangling of conflict; it is not without tangible consequences that anyone says, “Well, we’ll just let the judge decide.”
The actual problem solving which takes place during a Collaborative Process is a five stage endeavor that occurs primarily in group sessions scheduled as needed. The first step is collective gathering and exchange of all material information about the conflict. This creates an opportunity for each party to understand the other’s perspective and allows time, and a place, for each party to hear directly from the other party about their concerns, goals and interests. The second step is brainstorming. Again, with all parties present, this step is aimed at developing as many options for resolution as possible. The legal counselors present, who do not have a financial, or emotional stake in litigated results (and the preparations therefor) help reassure the clients that this exchange of ideas is a safe exercise and will not jeopardize any positions. Next, the third phase involves joint consideration of the consequences of the various options for all disputants. At this point communication between lawyers is essential so each understands the fears and concerns of the other client. Fourth, there is usually a reconsideration of the options in light of the fully vetted consequences (balancing competing interests). Finally, the fifth step is to create a settlement which will be mutually acceptable to all. The more work done that is completed in a group setting the better are the chances for a successful result. It is also crucial to recognize that during the process, there will be constant looping back, to gather more information; to refresh recollections; to re-consider options; it is not linear and participants are not perfect inasmuch as this is a very human endeavor.
The paradigm shift which must be made by lawyers who expect to be successful in a Collaborative Process is difficult to explain to anyone who has not experienced it. It is a shift in behavior, attitude and mentality. Some lawyers will tell you, “It is the same thing I have been doing my entire career.” If you hear this, or are thinking this, please consider if you, or they, have ever limited your representation by way of contract in your retainer agreement or a Participation Agreement. The limited scope of each lawyer’s representation, and each client’s stated goal of mutual agreement, requires a new definition of “winning”. The familiar option, “We’ll just see you in court!” has no place in the Collaborative Process, just as Tom Hanks’ character explained in A League of Their Own, that “there is no place for crying in baseball.”
Once a set of clients choose a Collaborative Process, winning is no longer getting the clients the most money and it is certainly not about accumulating mountains of evidence to level blame at the other party. Winning is now about creating an environment for dialogue which allows the parties, their advocates and expert advisors to work together, and to the greatest extent possible, it is about providing a chance for each client to realize individual interests and goals which may in all likelihood, are only now being heard for the very first time. It has been said that the Collaborative Process is about creating an opportunity for finding the two best possible solutions and not just one possibly satisfactory answer. Winning is about building bridges from the lowest of low points, the place where relationships have deteriorated into an abyss of conflict, to higher points of agreement and understanding and hope for something better.
ADVISOR, ELVALUATOR, ADVOCATE AND NEGOTIATOR
Balance in our approach to the various duties we owe our clients is essential for success, just as balance is essential in all areas of life; from sporting endeavors to child rearing. As outlined above, our Rules of Professional Conduct require us to provide a wide range of information to our clients. We must be prepared to give advice, help evaluate options, advocate interests and negotiate solutions.
I need your advice. I need your opinion. I need a lawyer. I need someone tough. I need someone who will fight for me. Will you be like Paul Newman in The Verdict, or do you have a Julia Roberts as in Erin Brockovich? What are my choices? What will happen? How much will it cost? Will I win? What does the law say? What would you do? What should I do? These are the questions posed to lawyers every day. How you respond may very well determine whether you are retained, whether your firm maintains an existing attorney-client relationship and ultimately, how any given client’s conflict gets resolved. The advisor role begins before you are hired and continues until representation terminates. The advisor role transcends all stages of the Collaborative Process as well. Our duty as advisor is to help clients choose the best process for resolution of their conflict and to provide them with the information they need to make the best decisions procedurally as we move through the five stages of the Collaborative Process; when options and consequences are weighed and final resolutions negotiated substantive advice will be requested and a return to stated goals and interests will be required.
“The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel.”
Recognizing that collaborative law is a novel field of law and that attorneys in Ohio have a duty to keep abreast of changes in the law and its practice, complete advice (from litigators and collaborative lawyers alike) will include informing clients of all the various process options available to them to resolve their conflicts, including but not limited to the possibility unbundling of your own services, and if you do not desire to so limit your services, that there are others who will. So, at the very beginning of your representation when there is choice to be made by the client; how to proceed? An attorney’s advice should always include the entire range of choices: mediation with a neutral; collaboration with attorneys who will agree to limit their representation to settlement negotiations; traditional attorney negotiation without the protection of full disclosure, disqualification or privilege; arbitration; or straight out litigation from the get go. The value of the relationship between the disputants (both past, present and future), the nature of the dispute, the needs for privacy or a timely resolution, and the strength and nature of emotions in play will all determine what process an attorney might recommend, when asked, in any given situation. It is also always incumbent upon each attorney to know whether his or her own strengths, skills and knowledge match up with what may be best for his or her client and manner in which the client wishes to address his or her concerns.
An attorney’s role as advisor continues throughout the Collaborative Process, albeit, tailored to that particular process as opposed to any alternative advice which might be given in litigation, arbitration, traditional attorney negotiation; and, even mediation. Advice will necessarily include information about the five stages of the process, the duties of full disclosure, and how “the law’ can be considered, or even not considered.
“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social, and political factors, that may be relevant to the client’s situation.”
Because every case will ultimately turn upon its facts, the Collaborative Process’ Participation Agreement will also include provisions for involving individual factual experts in the collaboration during the information gathering phases. This is a primary ancillary benefit of the Collaborative Process. Disputants and their counsel are able to deftly avoid notorious and costly battles of the experts. Important expert opinions can be provided simultaneously to all participants when agreement is made to hire a single expert to provide unbiased neutral analysis; the cost savings are obvious when only one expert is shared. In custody cases, a child psychologist can help parents determine best interests; in a will contest, a geriatric physician can help families understand competency; licensed therapists can help parties stuck in principled positions; engineering firms can provide unbiased opinions; actuaries can be hired without building in costs for testimony; accountants can calculate damages and business values. To insure availability of the most dedicated and competent experts, the Participation Agreement provides evidentiary privilege not only to the parties and the collaborative attorneys, but also to any experts mutually hired by the participants and named in the Participation Agreement. If settlement is not reached and litigation ensues, information otherwise discoverable is not barred by privilege, but the expert is insulated from cross-examination, unless privilege is waived by all. Experience has demonstrated that appropriate experts are much more willing to participate in a non-adversarial process aimed at resolution as opposed to polarization and diminution.
As options are generated, the collaborative participants, as nonjudgmentally as possible, consider the consequences of each choice, for each party. The process calls for this to be done in a group setting. If the collaborative lawyers remain committed to their collaborative roles the evaluative process can be transparent, nonjudgmental and safe because we will not have begun negotiating or weighing competing interests at this stage. We can still explore the various consequences from each party’s perspective, communally, as a collaborative team.
This is the part that is difficult to explain and hard to believe until it is experienced; the reason being is that both lawyers must trust the process and trust each other’s abilities to keep clients on task; the collaborative task. It is very easy to slip back into strategic self-interest mode and call this approach naïve. It takes great effort and self-control to take this new and different approach, on an “if come” basis. In a Collaborative Process no one is going to decide for anybody else when the going gets tough, and this is where the collaborative lawyers earn their pay; tough stuff indeed. What allows it to work is staying committed to the process and the time it takes for people to deal with conflict; by staying aligned with the goal of settlement, goals usually are met.
The relative safety created by the Participation Agreement’s disqualification clause, enables all legal opinions to be shared without personal threat while, and the full disclosure clause enables all material information (“discovery” in the litigator’s lexicon) to be considered in a timely fashion. The group sharing of information leaves no room for doubt about what one person is or is not considering when evaluating choices. The cost and consequence of alternatives to settlement can be discussed and, if counsel is honest and undaunted in admitting to the uncertainty of any certain litigated result, reasonable minds will usually carry the day. The honesty and self-confidence required come from a trusting and respectful relationship between counsel. The monetary, emotional and practical costs can then be considered at the same table, in the same room.
While evaluating options it is also incumbent upon the lawyers involved to understand to what extent each attorney’s personal standards of fairness might be influencing the client’s standards? Have we insured that our Collaborative Process has provided the time and space necessary for our client’s own senses of fairness to develop and evolve after adequate information, options, and consequences have been developed? Have we paid attention to the stages of problem solving and stuck with it, or have we skipped steps due to our own personal insecurities about this new way of practicing law? What will be our answer when the client inevitably asks, “What would you do?” You will hear collaborative law referred to as the client’s process; this is what that means: It is for the client to make his or her own choice in accepting or rejecting any of the options generated by in the collaboration. By sticking with the process steps and protocols, the professional participants become guardians of the process on behalf of the clients, which if done conscientiously, will create the opportunity for the clients to make their own lasting agreements.
We were trained in law school in the arts and science of advocacy. The building blocks come naturally to most of us who are attracted to the profession by our familial role models, by popular literature (ex.: To Kill a Mockingbird), movies (ex.: Justice of All; Inherit the Wind ) or television (ex.: Perry Mason).
According to Webster’s Dictionary, “to advocate” means “to plead in favor of a cause of another.” So, in fulfilling the role of advocate, the collaborative lawyer in a Collaborative Process must mindfully determine what are “the causes” which need to be advocated and, how can I effectively do that. There is no third party trier of fact, so effective advocacy will require a new direction; a direction that will bring two parties closer to understanding what could be done to satisfy one another and to relieve the stresses and strain of their conflict. For success in this realm of representation, our attention turns to the clients’ stated goal: finding a mutually agreeable resolution which satisfies as many competing interests as possible. This requires re-framing of issues and digging deep into exactly what the clients’ words mean, so as to uncover underlying motivations. What are our own client’s interests? What are the other client’s interests? Who needs to hear what? And, if we slip, and we will, how quickly can we realize that despite the best laid plans, our new advocacy has degenerated back into argument? To achieve our stated goals, new perspectives and new directions for our words and energy will be required.
Again, our newly minted 2011 Rules of Professional Conduct provide guidance a lawyer’s responsibility in the advocate’s role. Rule 1.3.Adocacy, states, “A lawyer shall act with reasonable diligence and promptness in representing a client.” This rule on advocacy does not include a duty of “zealous representation.” Reference to acting “with zeal in advocacy” is deleted from the Comments because “zeal” is often invoked as an excuse for unprofessional behavior and despite the title of Canon 7 of the former Ohio Code of Professional Responsibility, and the content of EC 7-1, no disciplinary rule requires “zealous” advocacy. Indeed, an attorney would be violating Canon 7, if the attorney failed to carry out a contract of employment entered into with a client for professional services; i.e.: by ignoring the terms of the Collaborative Participation Agreement. More specifically, per Canon 7, “in a lawyer’s representation of a client, a lawyer may… (w)here permissible, exercise his professional judgment to waive or fail to assert a right or position of his client;” Thus, so long as the client acts with informed consent in making the choice of process, the ethics of our profession absolutely anticipate a place for interest-based negotiation to the exclusion of strategies based upon advocating legal positions. Being an effective advocate is not necessarily what it takes to be an effective collaborator, and advocating for interests does not make the discussion adversarial; interests need not be mutually exclusive and the process does not necessarily have to involve a zero-sum outcome.
Mediator and author Bernard Mayer as recognized that “…all negotiations have distributive and integrative aspects, but at any given time, one of these dimensions tends to dominate the spirit of the discussions.” Mayer explains, if, a “ …negotiation is about gaining as much as possible of what is available it is distributive…alternatively, people can try to meet their needs through increasing what is available for all and making sure everyone’s needs are adequately addressed; this is an integrative approach.” 
“As negotiator, a lawyer seeks a result advantageous to the client and consistent with requirements of honest dealings with others.” Collaborative law is an interest-based negotiation; a “win-win” result is the goal. Again, it is not a zero-sum game. This is what makes collaborative negotiation so different, and why it so difficult, nuanced and rewarding. The definition of an advantageous result is more than just counting dollars.
In all negotiations, including collaborative ones, it relatively easy to measure and weigh distributed sums of cash from a finite “pie”, it’s not so easy to measure and weigh a distribution of various non-monetary and emotional interests which are integrated into the conflicts we all encounter and which we are trying to help resolve in accordance with what the clients have told us they want.
Indeed, collaborative law is an integrative approach with a distributive result. The Collaborative Process is the means for identifying the interests, weighing the competing consequences and putting together a solution which meets as many of the most important interests of each party. The collaboration, the act of working together, is what creates the best chance for a result which can be called a win-win by the parties, because the clients, not the lawyers or single trier of fact, are the determiners of what is acceptable. How clients measure and weigh their interests, is the grist for their integrative mill; it’s what collaborative meetings are all about. Settlement by its very nature requires an integrated resolution; one that satisfies the parties’ interests. And yes, there will be a distribution, a give and a take. For a “successful collaborative result” the distribution must be considered “fair” by each party.
Hired as a collaborative lawyer, we understand that our client is seeking something other than the traditional lawyer-leveraged result. By accepting limited representation we have promised something different and the clients have “purchased a seat at the table”. They want to be active participants in a process which will hopefully resolve their conflict; the professionals, as guardians of the process, insure that all voices are heard. All parties and counsel are at the table for substantive discussions. And, if we are true to the process, the lawyers strategize only about process, and they limit their role to that of a “wingmen”; it is up to the clients to take aim and pull the trigger on resolution.
This does not mean that in the Collaborative Process the distributive nature of negotiation is not present or that it should be ignored. In contrast, it simply means that in the commonly understood way of going about accomplishing the distribution does not necessarily require advocacy in the traditional sense; it requires other skills. Collaborative lawyers must be good listeners. They must be patient and devote the necessary time, before and after meetings, to discuss with their collaborative colleagues all that they have heard from each client in the course of the meetings. These are the necessary skills, which enable understanding, integration, and internalization of the information developed in meetings with clients. Ultimately, the members of the collaborative process team are trying to understand what both clients need, including their process needs, and their substantive needs, in order to settle the case. In addition, lawyers need to use their experience to help clients understand that what they originally thought they needed (to fight, to win, to not pay or receive a specific amount) is not always the same as what they need to reach ultimate settlement. For the negotiation to be successful, communication often needs to be very directive.
How “the law” is discussed and presented by the collaborating lawyers to the collaborating clients is an essential to whether collaboration will fail or succeed. I have found that the key to this “lock” comes in the form of collaborative dialogue between counsel before and after each meeting during each of the five stages of the problem solving process. Known as either the “choreography” (if the conversation is prior to a meeting) or the “debrief” (if the conversation is after a meeting) these pre- and post-meeting conferences between counsel provide opportunities for review and evaluation of progress towards resolution. Conversations may include agendas; discussions about sticking points in the law, candid exchange of any concerns or fears about process and substance clients may have shared only with individual. These are the difficult conversations which typically do not occur without the protection of the Collaborative Participation Agreement. This type of transparent and candid strategizing, between professionals, and then clients, is what floats the collaborative boat. It enables counsel to guide the clients through the difficult emotional currents of deep conflict.
Currently, most clients do not know about the Collaborative Process. Indeed, most lawyers do not know about it either. It is a new area of the law developed in response to what clients want: timely treatment, effective communication and lasting agreements. They do not want to waste money on unproductive court appearances, duplicative and vexatious discovery techniques, and I dare say, more than what is due them; they say they want “only what is fair”. If attorneys are willing to unbundle their services and provide exactly what the clients want there will be a permanent place for them in the marketplace of legal services. It seems just as easy for attorneys to align with the values of settlement, as it is to align with the time tested benefits and pitfalls of litigation.
During the initial meetings with clients, I focus on creating rapport. I attempt to be a calming presence at a time of fear and turmoil. My years of experience, in litigation as well as collaboration, provide a comfortable safety net. I encourage clients to take a deep breath, and then to spend a moment considering how they wish to problem-solve. By emphasizing a client’s power to choose how he or she wishes to go about addressing their conflict, I am helping to provide a sense of control to the client, exactly when the client is feeling most out of control. By offering reassurance in a time of doubt, I am able to provide an anchor. I often ask the client to imagine their worst nightmares, and then we take the time to defuse those fears stemming from what they have heard from others or imagined for themselves. If the problems are real, we create strategies for dealing with them. A timetable of what to expect and a discussion of alternatives go a very long way toward calming a client down.
The explanation of collaborative law and how it compares to litigation, mediation, arbitration and traditional attorney negotiation is the next step. A client’s most important decision at this moment is how to go about dealing with their problem without creating a bigger problem. Again, I emphasize the power and control which the Collaborative Process provides to clients and how the decision about how to proceed is a first opportunity to gain such control. I explain how we approach the problems from the clients’ perspective as opposed to a judge’s or lawyer’s perspective.
Questions about how much and how long are reframed; questions about the client’s family, spouse, work, and life are raised. Allowing the client to tell his or her personal story is essential. Then, general areas of concern can be covered, without getting into specifics or establishing firm expectations before all facts have been heard, including the other disputant’s point of view. It is even possible to have your client explain the situation from the other client’s point of view. I role paly will yield results and I have had no shortage of clients choosing the Collaborative Process.
Civil Collaborative Law
Collaborative Law has found acceptance primarily in the field of family law. It is also a viable alternative dispute method whenever time is of the essence; when employers and employees are in conflict; when medical error has occurred; when serious disputes arise in religious or charitable organizations, when government agencies are in conflict with the people they serve or there is conflict amongst those who are serving; whenever it is important to have options available in the event of future disputes. Any matter that can be litigated can, in theory, be resolved through a civil Collaborative Process. Law has emerged as societies have grown; collaboration is the way societies grow. Collaborative law proponents realize, as did Abraham Lincoln, who also knew when war was necessary, that form needs to follow function and that the function of law is peacemaking.
Typically, property and causality and professional malpractice insurance carriers instruct their policyholders to “deny and defend.” Clients are told to cease any communications with those who may have suffered a loss. Injured parties are left in the dark not knowing what really happened. The protections of a Collaborative Participation Agreement, however, enable the parties to bring to light their interests, concerns, and goals. Assumptions regarding motivations and actions can be dispelled, perspectives can be exchanged and apologies can be sincerely and appropriately delivered.
By way of example, in the healthcare industry, medical professionals and hospitals strive to deliver the best medical services available and to keep patients healthy, satisfied and returning; to gain and maintain good will, respect and a reputation for excellence in their communities; to promote sound business relationships; and to earn profits. Notwithstanding these goals and objectives, disputes will inevitably arise in the form of malpractice claims or disputes among healthcare professionals, their hospitals and insurance companies. The same can be said for colleges and universities, their faculty and their students. Employment issues, sexual harassment and age discrimination cases are just of few of the complex and potentially litigious issues facing all organizations from non-profits, to family owned businesses, to international conglomerates.
By executing a Collaborative Participation Agreement, such as the one appended to this article, businesses and institutions, their insurers and those they serve are able to resolve their disputes in a less disruptive and cost-effective manner by engaging in good faith interest based negotiations anchored by a commitment not to litigate. The process is voluntary and confidential; it protects reputations and addresses concern to the welfare of the individual by addressing the interests of all parties involved. The parties, their lawyers, financial advisers or other specialists can work together to generate options that best meet the interests of the parties. Claims can be addressed in a timely and cost efficient fashion and the privately offered explanations and apologies can be proffered without fear of sincere sentiment being treated as an admission against interest. This offers opportunity for preservation of relationships and continuity of business. Insurance companies are able to settle legitimate claims earlier than a trial process normally allows and they can contain legal fee and expenses. The Collaborative Process offers disputants a better chance to return to their shared interest of delivering excellent product and services.
Testamentary documents, partnership and operating agreements, construction contracts and employment agreements all can include clauses which require all parties to consult with trained collaborative lawyers before proceeding to any other form of dispute resolution. In this way, all potential disputants are reminded, that at least when their relationship began, it held the promise of a respectful and dignified way of dealing with one another; even in the event of conflict. The clause can offer a moment in time, for cooler heads to prevail.
Collaboration, decision making and conflict resolution are not the sole province of the legal field. Academicians, politicians and business leaders around the world have recognized the benefits of finding new ways to solve problems. And with the advent of collaborative law, the legal profession is no different. Progressives in all fields of human endeavor have recognized that recent research in evolutionary biology, psychology, sociology, political science, and experimental economics suggest that people behave far less selfishly that most assume.
In a prisoner’s dilemma game, where two players will be better off if they cooperate, but neither can trust the other to do so, game theory predicts that both players will choose not to cooperate instead of taking the risk of losing out by cooperating. Extensive experimental work has shown that people actually cooperate more than the theory predicts.
In a study conducted on American college students and Israeli pilots, by Lee Ross and his colleagues, half the players were told that they were playing the Community Game and the other half were playing the Wall Street Game. In the Community Game, 70% started out playing cooperatively and did so throughout the experiment. In the Wall Street Game, 70% did not cooperate and 30%, who started out cooperating, stopped when the others didn’t respond. What this told the researchers is: (1) that all people are not alike: 30% of the players cooperated even in the Wall Street Game, and another 30% acted with self-interest even when they were told they were in the Community Game; (2) that many of us can be influenced by context.
According to the researchers, the framing of the games influenced 40% of the sample. The players who thought they were acting in the context that rewarded self-interested rationality behaved in a manner consistent with that expectation; and, participants who felt they were in a situation that demanded a pro-social attitude conformed to that scenario. So, any lawyer who does not explain alternative dispute resolution in general, or the Collaborative Process specifically, risks losing 40% of the clients seeking a cooperative solution.
Change is not easy; for individuals, groups, organizations, or communities. History and habit often stand in the way. The work we have done thus far in the Collaborative arena can provide context to a new direction. Attached please find a Model Collaborative Participation Agreement. For more information about Collaborative Process please consult the International Academy of Collaborative Professionals’ (IACP) website, www.collaborativepractice.com.
This piece is published with the permission of Ohio Association of Civil Trial Attorneys;
it also appears in their Members’ Only publication, the “OACTA Quarterly Review” 2012 Summer Issue“.
 A LAWYER’S RESPONSIBILITIES; SCOPE, Ohio Rules of Professional Conduct, Preamble (2)
 Ohio Rules of Professional Conduct, Rule 1.0, Terminology, (f) Informed Consent, Comment (6)
 Ohio Rules of Professional Conduct, Rule 2.1, Advisor, Scope of Advice, Comment, (2)
 Ohio Rules of Professional Conduct, Rule 1.1, Competence, Maintaining Competence, Comment(6)
 Abney, Sherrie, Civil Collaborative Law: the road less traveled. Bloomington: Trafford Publishing, 2011.
 Cloke, Kenneth, Mediating Dangerously. San Francisco: Jossey-Bass, 2001, Print. Chapter 12, Power, Rights, and Interests.
 Frankl, Viktor, Man’s Search for Meaning. Boston: Beacon Press, 1959, Print.
 ABRAHAM LINCOLN, LIFE AND WRITINGS OF ABRAHAM LINCOLN 329 (Philip V. D. Stern ed., 1940).
 Prefatory Notes, Uniform Collaborative Law Rules and Uniform Collaborative Law Act, last amended 2010, National Conference of Commissioners on Uniform State Laws. Santa Fe, 2010.
 MacFarlane, Julie, The New Lawyer: How Settlement Is Transforming the Practice of Law. Toronto: UBC Press, 2008, Print.
 Abney, Sherrie, Civil Collaborative Law: the road less traveled. Bloomington: Trafford Publishing, 2011.
 Ohio Rules of Professional Conduct, Rule 1.0, Terminology, (f) Informed Consent, Comment (6)
 Ohio Rules of Professional Conduct, Rule 2.1, Advisor
 Ohio Rules of Professional Conduct, Rule 1.3 Diligence, Comment (4)
 Mayer, Bernard, Dynamics of Conflict Resolution, San Francisco: Jossey-Bass, 2000, Print.
 Id. at p. 146
 A LAWYER’S RESPONSIBILITIES; SCOPE, Ohio Rules of Professional Conduct, Preamble (2)
 Benkler, Yocahai, The Unselfish Gene, Boston: Harvard Business Review, July-August, 2011.