Collaborative Law in the French System
Ms. Gladel gives an overview of the history of Collaborative Practice in France, from its origins in the work of two Harvard Law professors to the application in the French system. She notes that the traditional system can be fraught with delays that ultimately violate the petitioners human rights and that the Collaborative method is growing because of its ability to work with the parties more efficiently without the restrictions of the court docket. The goals, advantages and processes are clearly defined and illustrated with charts and diagrams for clarity. Collaborative is also compared to other ADR methods to demonstrate the advantages and the value. A case example shows the application of the process. -gkv.
A. Birth of Collaborative Law :
In the second half of the 20th century, technological development transforms the societies in developed countries into societies of communication.
Communication became a universal main point of relationships, from the social ones to the business ones.
From this era of communication, Alternative Dispute Resolutions, called ADR, was invented and developed.
At the very beginning, they were composed by arbitration, mediation, and negotiation. Communication based on negotiation was the foundation of each.
But the approach of negotiation knew a very important change with the popularization of the win-win method. Studied and developed by Harvard professors Roger Fisher and William Ury, that technique proposes a completely different way to approach negotiating. In fact, before that, it was only perceived like a fight of powers in which the most powerful part could impose its will on the other.
The originality was to propose not to fight against the interlocutor but to work with him instead, considering that a victorious negotiation is the one that permits them to reach an agreement equally satisfying for both.
Collaborative Law was born with this awareness, that’s why the very first definition that we can give of it is the one of a consensual process involving the parties and their respective lawyers trained in the collaborative process (and with the eventual help of experts).
Invented in the 80’s, it was used almost exclusively in Family Law, its peculiar philosophy helping families to resolve conflict peacefully.
B. Evolution of Collaborative Law :
Nowadays, ADR is getting more and more important as an international crisis of the judicial institutions is observed. The lack of means, financial and human, makes the delays of resolution everyday longer. A reality that violates the European Convention of Human Rights (Art 6-1) and the Charter of Fundamental Rights of the Union European (art 47).
In France, the judicial budget is equivalent to the budget of war veterans!! In the last month of October 2013, the court of appeal, social chamber, had to delay some hearing audience because they hadn’t enough staffing to listen to everyone!!
In a world everyday more procedural this tendency is not going to stop, moreover it’s going to increase.
The globalization also led to another need. Harmonization in the laws or moreover safety for the foreign enterprises that want to invest money in our country bring about a growing use of ADR.
In response to these needs, the use of Collaborative Law evolved. It extends its utility to other branches of law, especially in French social law. Arrived in France in 2006, it has counted already 60 practitioners and it’s growing more and more.
In fact, Collaborative Law presents a lot of advantages, which are missing from the other ADR.
Its advantages are also what make its particularity…
As all ADR, the use of collaborative law requires an important preparation. Some are common to all of them, others are particular to this method, but they are always essential.
a. The goal :
ADR must be approached with the idea that the compromise cannot be always a necessity, and less for both parties.
That’s why the question of the parties’ will is particularly important.
First, the lawyer will have to light his potential client’s choice in the meaning to permit to this one, aware of the advantages that this special technic means to him, to be ready to involve himself and work hard for the victory of the process.
There will be two steps for choosing:
– Firstly, the lawyer will have to explain to his client why the alternative way is better than the judicial one.
– Secondly, the lawyer will have to make his client understand why Collaborative Law should be chosen instead of the others ADR method.
i. Judicial way and alternative way:
As we said before, the judiciary institution is facing a generalised crisis which provokes
an extension of the resolution timeline.
As the ADR begin with a private initiative, they are not concerned by the material problems of the judicial way, and can answer so much faster to the clients’ expectations.
If the costs change in function of the ADR chosen, the case in which they are bigger than the judicial ones are exceptional, almost inexistent.
Faster, ADR are generally also cheaper.
The publicity is a fundamental principal of French Law, protected in our procedure codes as in the European Convention for Human Rights, in its article 6-1.
This principle is limited in not many cases, as for example when minors are concerned, but the bad consequences that it could provoke are forgotten. The media hype often violates another fundamental right: the innocence presumption.
This reality could be observed in civil law, as in business law, and French social law.
The ADR do not have to respect this principle of debates publicity. That’s why they are recommended to keep discretion and confidentiality.
From these three elements, comes a fourth. Because of its slowness, its economical costs, and of its publicity which allows media hype, the judicial way choice is synonym of a very high emotional cost.
ADR are not that emotionally exhausting. In fact, they are not only faster, cheaper, and more discreet, they are also more consensual that the classic trial in which a party have to win against another.
Since the method of win-win negotiation had become THE method to use, the ADR philosophy is a consensual and pacific one.
Another element that reduces the emotional costs of the process.
To synthesise, ADR present an advantage in term of:
– Economic costs
– Emotional costs
But in the middle of all ADR method, Collaborative Law shows some particularism, which make its use particularly advantageous.
ii. Collaborative law and other ADR:
To begin, Collaborative Law is, more than any other ADR, based on consensualism. In fact, lawyers and clients commit themselves by the contractual way, to be sincere and to work for the success of the project.
Moreover, lawyers commit themselves to stop the process, and to abandon the record, if the client doesn’t respect these requirements.
The teamwork and the goodwill predominating the debates, this ADR is, without a doubt, the one that better prevents the emotional costs of conflict resolution.
As the calendar is fixed in advance, it allows the organization of the element to discuss, and it make the process particularly fast.
The fact that the interveners are professionals guaranties efficacy and the legal certainty.
We won’t study further these points that will be developed later.
Let’s only remind that the presentation of the different commitments that Collaborative Law implies for the client, as the numerous advantages, is the lawyer’s duty.
Once these advantages are recognised and accepted by the client, and once the process has begun, the lawyer will have to prepare him to the negotiation with the learning of win-win method.
b. Learning of the win-win method:
The first difficulty in Collaborative Law application is to convince the client that the best option to be successful is not to fight his interlocutor but to interact and cooperate with him.
In France, that difficulty is especially important because of a French particularism: there is in our country a tradition of contestation instead of negotiation.
French children are educated in a culture that valorises a very high conscience of their rights and of what they can “legitimately” expect.
Become adults, they will prefer fight to get what they think owed to them, instead of finding a compromise by a pacific negotiation.
That’s why is very important for the lawyer to prepare well his client to the simple idea of negotiating, learning to him a technique that will permits by its application to privilege the consensus.
This challenge is particularly important in special sectors, petroleum industry for example, in which interlocutors meet over and over again, and in which a break would have disastrous effects on relationships necessary after all.
i. A preparation in the preparation:
The win-win negotiation has to be prepared to reach the maximum of its efficacy.
The client, with his lawyer, will have to be able, before the debate beginning, to answer the following questions:
– Where are my interests ? Where are his interests ?
– Which are my options ? Which are his options ?
– What are de criteria of each party?
– What is my MESORE? What is his MESORE?
– What are the propositions?
Firstly, focus on interests instead of positions is one of the primary elements of win-win negotiation, because it permits to pacify the debate.
In fact, it helps to perceive the conflict in a positive way (This is what I want to get/ This is what my interlocutor wants to get), instead of the negative one, consequence of considering the positions (I won’t negotiate on this point/ My interlocutor won’t change his mind in this other/ … etc.).
These interests will have to be identified clearly now that the goal, no longer individual but common, is to joint all the interests of the parties in an unique compromise.
However, be careful, the lawyer will have to make understand to his client that he won’t be able to negotiate on closed position. The speaker will have to stay open minded, flexible, ready to adapt himself and to take the opportunities that may end with a consensual solution.
Then, the party will have to focus on the different possible options. If it’s not possible to maintain his stand, the client will have to think about alternative options which could satisfy equally both interests.
So, an option is a potential deal, or a part of a potential deal. The client, helped by his lawyer, will have to discover most of them.
During this fase, creativity prevails over pragmatism. Quantity is better than quality.
In fact, there are as many chances to end up well the debate and to get successful, as there are found options.
Interesting himself to the criteria, the client tries to conciliate his interests and the ones of his interlocutor, by unifying options of both sides. The goal is to find a balance between the two parties satisfaction by considering criteria predetermined in the preparatory phase.
The client has to know which are the criteria he thinks interesting and why?
The point is not anymore about giving away in front of the other, or to cheat on him, but it’s about a research of what is fair.
More objective are the criteria, more easily they will be accepted by the interlocutor.
Then, the speaker will have to identify his BATNA, Best Alternative To a Negotiate Agreement, in case of a negotiation break.
In fact, negotiation is not always about finding an agreement (which means an end of course), it can be also the way to find if my interest would be better satisfied by a compromise than by my BATNA.
First, the speaker will have to identify this one, because it constitutes a potential element of power in the negotiation.
Once identified, it has to be fortified, the client will have to work on its potential realisation to impose his force.
There are three kinds of BATNA:
– The BATNA porte de sortie: This is the BATNA in which the speaker will have to think to reassure himself if the debate turns bad, the one which will permit to satisfy his interests without a deal.
– The coup de poing BATNA: It’s the alternative solution thanks to which the speaker will be able to pressure the interlocutor despite the negotiation end.
Ex: Interrupted negotiation about a particular disposition of a collective convention between boss and union. The BATNA coup de poing could be here a strike.
– The recours à un tiers BATNA: This BATNA integrate a third person in the alternative solution to promote the speaker’s interests. It may be the use of a judge or of a mediator. However be careful!! In Collaborative Law the recours à un tiers BATNA cannot be the coup de poing BATNA.
It’s also important to identify the interlocutor’s BATNA. The interest known because of the realisation of a compromise for one or the other party, only can be appreciate relatively to the interest known thanks to BATNA.
To have a clear idea of proposition viability for the interlocutor, knowing his BATNA is primary.
Finally, the negotiation preparation will end up on a reflexion on potential propositions.
The difference between propositions and options is that the proposition is communicated to the interlocutor, proposed in fact. It’s important to prepare one, to increase the probability of success. The speaker should make at least three propositions:
– The absolute proposition: It’s a proposition located between equity and the interlocutor’s BATNA. It’s an ambitious proposition which satisfy almost totally or totally the speaker’s expectative. Even if it’s unlikely that the interlocutor says yes, this proposition has to be done. In fact, the interlocutor won’t give to the speaker what he doesn’t ask for, as says the famous adage “he who tries nothing has nothing”.
– The fundamental proposition: In case of fail of the absolute proposition, the fundamental proposition imposes the frontiers in the other side. It constitutes the deal, which satisfies the speaker interest to the minimum, which satisfies the interests on which he cannot compromise.
– The fair proposition: It’s the proposition between the absolute and the fundamental one. It’s generally the one that is picked up.
The lawyer has to make his client understand that he will have to be patient, tolerating, and flexible, to make sure that the negotiation ends well.
Let’s take an example to illustrate the preparatory process:
Charles, former executive for 10 years in the same enterprise, want to get a salary augmentation. In fact, his woman is pregnant, and they will have to change their apartment for another bigger.
Since the very beginning his work gives complete satisfaction to the direction. They maintain a good and trusting relationship.
The enterprise is in economical bad period and George, Charles’ boss, refuses to give him the negotiation.
Charles begins to search for a job, and receives a proposition for an equivalent work, but for a salary bigger than his actual but smaller than what he asks for.
Charles’ salary is more or less the classic salary for the responsibilities he carries, but he hasn’t been improved for 3 years.
|Interests||– Get a bigger place to live- Recognition of his work/efficacy/seniority||– Reduce the costs- Have an experimented person to carry the job|
|Options||– Borrow money + Change his job- Borrow money + keep his job- Receive a prime, or some advantages + keep his job.- Getting his improvement- … etc.||– Improvement + requires extra hours- Not improvement + dismissal- Improvement + alternative economical advantages.- … etc.|
|Criteria||– Money necessary to get a bigger place to live- Experience, efficacy, loyalty of Charles.- Usual salary for this work, with this seniority.- How is the work market|
|BATNA||– porte de sortie BATNA: find another job better paid.- coup de poing BATNA: days off for sickness- Recours à un tiers BATNA: borrow money to family members||– Porte de sortie BATNA : everything still the same- MESORE coup de poing : dismissal ?- MESORE recours à un tiers: contract someone else|
|Propositions||– Absolute proposition : Attribution of the asked augmentation- Fundamental proposition : Help the enterprise to find another guy and accept the other job- Fair proposition: To get advantages that permit to get a bigger place to live + keep the job with a perspective of evolution.|
The fair proposition will allow George to propose to Charles something that will end up with the negotiation: George gives to Charles a bigger house (belonging to the enterprise), as the promess of a negotiation about his salary in more or less 8 months, time estimated for the enterprise to get financially better.
ii. The method itself:
The various obstacles to win-win negotiation are:
– Reactions of the interlocutor:
– Reactions of the speaker
– Position of the interlocutor
– Dissatisfaction of Interlocutor
– Power of the interlocutor
For every of these 5 obstacles there is a phase of win-win negotiation that allows going beyond.
The most important challenge of win-win negotiation is the pacification of the debate.
Impulsivity of speaker and interlocutor may parasite dialogue, and may lead to a break.
The first two phases of win-win method lead to serenity of discussion.
To ensure his own serenity, the speaker must “go to the balcony” witch means he must step back, and use some coldness in his report and analysis of debate.
So, he will protect himself from shifts in the mood that can cause:
– An response that may provoke a fight of power
– Submission to a requirement not reasonable, accepted under pressure
– The break of the dialogue
To go to the balcony, the speaker will have to control his reactions. The interlocutor may try to upset him with:
– Obstruction (refusal of negotiate)
– Personal attacks
However, those tactics are dangerous in the exercise of Collaborative Law as the method is based on an attempt of absolute sincerity.
The parties have to ban the lack of sincerity in all ways and in case of one, they will have to denounce it with calm. Calling a spade a spade, they will bring back honesty in the relationship.
The thing that the conflict resolution is organised in different sessions, fixed before the beginning of the negotiation, permits to take some time to think between the sessions and avoid the impulsive reactions.
The anger, the revenge and all other personal grudges have to be pushed away from the discussion.
To calm down the interlocutor, the main point is to step by his side, making him understand that the goal is common and that him and the speaker are partners and not enemies.
For that, the speaker will have to listen to the interlocutor’s expectative and make him perceive it by the use of maieutique for example, as we will see later, but also by the use of simple methods like reformulation of his answers, adding a “Do I understand well?”.
The interlocutor’s feelings have to be taken in consideration, as the way the debate affects him.
The speaker have to agree as much as possible, without forgetting to express his own point of vue without provocation.
The third step consists in reframing the debate, put frontiers, to show to the interlocutor the reason for which his position is too much rigid and not viable.
The speaker has to use the questions to insure common bases. This technique will be developed later in relation with the negotiation itself and the use of maieutique.
The interlocutor dissatisfaction is linked to his impression of being abused. He doesn’t perceive the deal as a fair one and feels passive in the negotiation process.
This questions has to deal with pride considerations, that’s why William Ury proposes in a fourth step to construct a “golden bridge” to end up with this difficulty.
The golden bridge will play the appearance play. It will permit to the interlocutor to accept the proposition without appearing to give away.
To reach this goal, the speaker will have to imply him in the dialogue asking for constructive critics, tempting to satisfy the subsidiary interests not yet satisfied, and at least helping the interlocutor to save the appearance using objective criteria and experts’ opinions. Their legitimacy and their impartiality must be enough to calm down him.
The power of the interlocutor, or his use of power in his relationship with the speaker may also be an element of debate obstruction. The difficulty will be here for the speaker to show his power without outbidding.
He will have to remind the other that his choice will have consequences, to make sure he doesn’t forget that his satisfaction is also concerned by the process. As we saw, the choice of Collaborative Law is a conscious choice, the method normally allows a solution which will satisfy completely his interests.
Using the BATNA is also a way to rebalance the discussion.
However, be careful! These techniques have to be warnings and not threats.
a. The negotiation for parties
i. Recognise the interlocutor’s personality:
Analyse and identify the personality of an interlocutor permits to control better his reactions, by avoiding some sensitive subjects for example.
Understand how he thinks and perceive the situation will allow an adaptation, which will help finding a deal.
That’s why it’s something that the party has to do very early in the negotiation.
If the win-win method requires making the difference between person and problem, this problematic calls for some nuance. The point here is not to confound the two of them, or to have a wrong vision of the problem, influenced by a closed opinion on the interlocutor and a quality judgement. The point is, in reality, to understand the interlocutor’s way of perceiving the problem, to get to know how transmit the good messages.
We have analysed that there are two principal criteria to consider, for judging the nature of a negotiator.
The first one is the sensitivity. Obviously, feelings and impulsions are enemies of a good, peaceful negotiation. The party will have to wonder if its interlocutor is or not a sensitive person.
The second one is the perception of a situation. We will consider here that there are two ways to perceive a situation, a large one, and a reduced one. The party will ask himself if his interlocutor sees the debate in a global shape, with all its components and details in an objective approach? Or if he is seeing everything from himself and the impact on his person, his pride, his sensitivity, in a completely subjective vision?
The combination that he will obtain will give him one of the four personality types that we will explain further.
|Large perception||The Worried||The Intellectual|
|Reduced perception||The Creative||The Narcissistic|
These four personality types don’t have the pretention to allow a true knowledge of the person behind the negotiator, but at least, it lets the party know how the interlocutor should more or less react to the different situations.
Each of them presents advantages and negative points from the party vision, and implies the avoidance of some comportment, and the research of some others.
|Positive points for the other party||Negative points for the other party||Comportmentsrecommended||Comportments to avoid|
|The Worried||– Perfectionist- Responsible- Moral||-Feeling of guilt- Rigid- Used towork alone||“I understand /share your values”||Some things are not negotiable. Don’t try to insist.|
|The Intellectual||– Logical- Efficient- Stable||– Relentless- Indifferent||“Your interest and mine are in the same place”||Don’t try to manipulate.|
|The Creative||– Enthusiastic- Volunteer- Sincere||– Passionate- Unstable||Play with affects||Don’t provoke|
|The Narcissistic||– Seducer- Credulous||– Manipulator- Pride- Provocative||Flattery||Don’t try to impose something by your power|
The Worried, because of his high awareness of what should be done in regard with morality, could show some rigidity. He examines the situation in its totality, trying to get the better result possible.
In fact, he is worried about things not doing well and feels pressured by his sense of responsibility. He is used to working alone, because he prefers making everything by his own to be sure that it will be ok.
He may not be very energetic in proposing solutions, because this kind of personality is often paralyzed by the fear, however he doesn’t loose sight of his goal, and has in mind a quite clear hierarchy of the interests he has to defend.
This hierarchy is structured by primary principles and values. The party shouldn’t try to negotiate this basis! That would shock his interlocutor and potentially provoke distrust that would paralyze the debate.
To begin and lead a good discussion with this kind of interlocutor the main point is showing him that the two are considering solutions from the very same base, composed by the same principles and values or at least that there is respect AND understanding to the dilemmas he could have to solve, and that the party will help to end up with consideration for his values.
The Intellectual is maybe the most dangerous interlocutor. He is organised and systematic, not touched by emotion, because he perceives only the concrete information. As he examines the situation with the benefit of hindsight, he hardly looses the control of himself and his mood is stable, unchanging.
For these reasons, he is particularly efficient in finding solutions to a problem, he sees quickly all the opportunities that are possible to him and chooses the better, completely relentless to morality, and to the other party. He’s serving the achievement of his goal in a mechanical and systematic approach.
Trying to destabilise him using emotions is a very bad idea, it’s unlikely to work and it could provoke his distrust.
The main point with the Intellectual interlocutor is to convince him that the solution that serves his interests may serve the other too, arguing with objective elements, and structuring logically the reflexion.
The creative is an enthusiastic, volunteer, and sincere interlocutor. He is animated by the will of finding an issue to the debate that lets the two parties be satisfied. He is also sensitive and empathic.
He is passionate so impulsive, instable, he could break the negotiation in a minute because of an attack of anger, or deception.
The very first thing to do with this kind of interlocutor is to pacify the debate, looking for stability to avoid mood’s swings, and limit the debate to prevent the digressions.
The creative interlocutor could easily be manipulated by using the affect, but be careful!!
The Collaborative Law is based on sincerity. Sweet manipulation can be used to help the interlocutor to overcome one of his mental blocks for awhile, but it’s dangerous because it could destroy all the work of pacification of the debate.
The Narcissic is a seducer, which will make the discussion comfortable at the beginning. But surely this won’t be long.
If this interlocutor seems pleasant, never forget that he is also an excellent manipulator who use his charisma to get what he wants. He has strong image of himself, and needs to be constantly assured about it. He likes to make demonstration of his power too, imposing himself on others. However, he is also a very weak interlocutor because credulous, easy to manipulate.
He is very sensitive to flattery !! He could accept some things not that good for him because it caresses his ego, or just because accepting it makes him feel his power in a paradoxical way.
Don’t be ashamed of flattering him, and of deforming the presentation of the debate. You’ve got something ? Thank him a LOT and do not try to show your own power.
ii. Using maieutique :
The maieutique is a rhetoric method, which had been primarily developed by Socrate. It consists in leading the interlocutor to face his own lack of sincerity, and his contradictions by questioning him simply. Maieutique means “the art of giving birth to spirit”. This technique can reinforce the win-win one.
The approach is primarily composed of questions, but obviously is not forbidden to dialogue in a more classical way. To give your point of vue before questioning something for example, often permits to orientate an answer. Reminding an old affirmation oblige your interlocutor to show coherence in his standpoint.
The naïve appearance of the method is misleading. Every question is a way to construct a wall that the debate couldn’t choose later. After a certain number of questions, there will only have one unique way in which the interlocutor will commit himself with enthusiasm as it appears with logic and fruit of his own reflexion.
As the questioned seems the only one to choose, his answer is only an infrachoice (a choice inside another choice) in the general scheme of the debate. His freedom, apparently absolute, isn’t more than a freedom of response, alienated to the question.
The true leader of the debate is the one who asks.
Some techniques permit the systematization of the reflexion. The Four Questions Rule for example.
But before talking about methods, some tricks always work. For example, it’s preferable to promote the ones, which will provoke a simple answer, like the French linguistic concept of “interrogation complete” (questions that may be answered by yes or no). Less important would be the number of possible answers, and easier it should be to provide the following question, and faster the unique solution would appear.
The Four Questions Rule is used at the beginning of the negotiation. It consists in asking four determined questions, in a determined order. The first three of them will permit to limit the borders of negotiation. The fourth will permit to enter IN the negotiation.
Firstly, the most important is to define the object of the discussion. Let’s take a situation, in which a person would have damaged some other who propose an amicable resolution. The object of the discussion will be the quantity of the compensation that the victim would receive from the responsible.
Secondly, it’s good to update the parties’ interests. It allows a peaceful tone for the discussion, as it appears then in an obvious way, that the debate victory can only be collective and not individual. In our example, the victim’s interest is to compensate the damages suffered by a quantity of money. The responsible’s interest is to avoid a long, noisy, and expensive trial. The common interest is for good in the amicable resolution way.
Thirdly, the questions will be about the different impediments that we could also designate as the constitutive elements of the parties’ pretentions. In our example, it should be the suffering endured and the moral and material, or physical consequences for the victim. For the responsible, the principal obstruction may be the limits of his financial possibilities.
Finally, in a fourthly and last step, comes the questions: “How to solve the conflict?” This step corresponds to the movement in which the parties really begin the negotiation. This is illustrated by a first proposition of resolution.
For this fourth and last step, it’s better if the question is a “subjection”, a question to which the negotiator answers himself.
In fact, because of its initiatory nature, the first proposition of resolution has an impact on the following discussions, then it’s obviously better for the interest of our negotiator to be the initiator.
Once the borders have been defined, the actual difficulties begin. Inside the territory delimited by the Four Questions Rule is a true labyrinth. The reflexion becomes more and more complex, and the preparation more difficult.
The primary difficulty is about the research of the proper question depending on the different cases that could exist. The questioner has to know how to theorise this cases, subtract them to the factual details to obtain a substance, a nature.
For example, when a first deny is opposed to a proposition, the questioner will have to look for the roots of this rejection.
Four situations are possible:
|Objective and universal||Subjective and personal|
|I accept this argument||New proposition adapted to the argument in case||New proposition adapted to the argument in case|
|I don’t accept this argument||Explain to the interlocutor why this requirement is not possible for you||Construction of a logic reflexion to face him with his lack of sincerity, his blockings, his non sense, … etc.|
The use of the question, if this one isn’t ask in a inquisitor form, helps to create a trusting climate between the parties. Without being conscious of it, the interlocutor is led to recognise the Other as volunteer, invested, listen to hear him, and sincere.
This is often enough to deactivate a tense situation.
In the same way, it permits to the questioner to take distance from the discussion, to analyse the constitutive elements of the problem more peacefully and then in a more efficient way.
More the goal is important; more the negotiation may be source of stress. Too often, one of the parties gives away because of an impulsion that leads to the end of the negotiating process or to the conclusion of an improper deal. For being master of the dialogue, you have to be master of yourself.
The climate of serenity that this method encourages is particularly recommended for the figures of:
– The Worried: the use of the question will make him understand that he is listened and that his values are not devaluated but, on the contrary, that they provokes interests in the other party.
– The Creative: The distance to the debate that the technique allows to the questioner permit him to impose a climate of stability favourable to the creative.
– The Narcissistic: The distance to the debate permits to the questioner to not react in case of provocation.
At least, the maieutique has the goal to limit the negotiation, and to help the interlocutor to construct a logical reflexion. The simplicity of the questions pushes away style effects (pity, demagogy, feel of guilt, … etc.) or to integrate in the debate information without direct relation with the problem, two processes that paralyze the debate.
The systematic and the pre-eminence of logic is recommended for the figure to :
– The Intellectual: He will appreciate the approach of the problem, because it’s similar to his. As a logic argumentation is the only way to convince him, the maieutique seems to be a good way to reach a deal in a negotiation with the figure of the Intellectual.
To synthesise, the use of maieutique offers a method systematic and demanding that provides peace and logic among all other things in the debate and that permit to overtake the potential impediments due to the parties particularism.
b. The negotiation for lawyers
i. Collaborative Law deontology:
The IACP protocol imposes that every Collaborative process begins with the signature of a Collaborative Participation Agreement.
The Collaborative Participation Agreement has as purpose to offer to the parties a safe delimitation of the rights and duties brought by Collaborative Law.
It has to be signed by all the parties, and the lawyers of the parties, a detail that reminds over again the consensual tone of the technique. It insures some rights not insured by the other ADR methods.
Its model is almost always the same; we will see here the most important elements:
– The confirmation that the choice of Collaborative Law is better than the judicial way by a study of costs: This statement permits to impose the basic principle of the method: a negotiation with respect and dignity in order to get a consensual solution which satisfy both interests.
– The Collaborative Law guideline which engages the contractual partners to :
o Work WITH the other party and not AGAINST it
o Employ all their efforts to find the common deal
o Not pressure the other party with the threat of going to the judge
o Use the model of negotiating chosen
In fact, all requirements are the expression of the same principle: sincerity, or in French law “bonne foi”. In case of lack of sincerity, the lawyer commits himself to give up the record.
– The definition of the Lawyers’ and experts’ role: Lawyers and experts have the duty to abandon completely and irremediably the record in case of they fail to find a deal. It’s motivated by the conviction that professionals who militated for consensualism cannot then be opposed or properly defend a client in the judicial way.
– The exchange of information: It has to be mutual, continue, absolute (every information that could influence the parties’ choice has to be communicated). This duty is for all the persons participating to the process: parties, lawyers, and experts.
– Confidentiality: If the Collaborative Law process fails, then the parties cannot use the information obtained during it for the trial. They cannot ask for experts or lawyers to bring proofs or to testify. Lawyers and experts are submitted to the same requirement, a duty linked to their obligation of giving up the record in case of failure.
ii. French Bar Association deontology:
Being a lawyer implies the respect of a certain number of deontological rules special to the Etat de droit (rule of law?). The Collaborative Law negotiation, lead by lawyers, will have to apply these rules.
We will study three of the most important:
– The professional secret
– The respect of contradictory
– The conflict of interest prohibition
The Professional secret is one of the better-known obligation which comes with the lawyer profession. It’s linked with the notion of public order.
In fact, this duty have to protect a judicial principle very important in the Rule of law (??) : the citizen trust in the judicial institution. Without trust, the litigants would have difficulties to exercise their right to justice as recognised in article 6 of the European Convention on Human Rights (ConvEDH), a treaty of direct application in the national normative system, and of constitutional value.
The Professional secret is protected by the absolutism, which surrounds its observation. It will be general, absolute, and unlimited.
So, firstly, the professional secret is general in its application. In fact, it’s applied to every function of the lawyer, advice as defence:
– The reunion organized by a lawyer for his client
– The communications (Emails, letters, … etc) between the lawyer and his client, or the lawyer and his confreres.
– All the information and secrets received by the lawyer in the exercise of his profession
– The clients’ name and the lawyer’s agenda
– Every single piece of the record
– The managements of funds and assets made in application of article 27.2 of the law of 31/12/1971.
– The information asked by the external auditor (only communicable to the client)
As it’s also an absolute duty, the lawyer cannot get the permission from nobody, not even the client, to not respect it.
At least, as it’s an unlimited duty, there is no prescription. If when the lawyer is about to accept a new case he realises that the secret of his old client case may be in danger, or when his knowledge of this old case may provoke some unjustified advantage for his new client, he will have to refrain himself.
Article 226-13 of French Penal Code says that : « The revelation of a secret information by the person who is depositary of it or because of state or because of profession, or because of a function or a temporary mission, will be punished by a year of jail and 15.000 Euros fine. ».
The lawyer is depositary of information because of its profession. Thanks to the French Code penal, he has to respect the secret. The non observance of the principle is a crime formally recognised and incriminated.
But this obligation is also mentioned in the Guideline of French Bar Association, as a remind of deontological obligations, which come with the gown. The guideline in question deals with it in article 2.
Disciplinary sanctions could get to revocation of the bar.
The principle of contradictory: the principle of contradictory, from latin locution “Audiatur et altera pars”, is a principle, which exists in every kind of procedure (the civil ones, administrative, disciplinary, … etc.), and which means that every party will be able to discuss the other party’s allegations and proofs, by presenting its own proofs and allegations.
It defends the Right to a fair trial, the right to the defence and to the equity of weapons, principles enounced in article 6 of ConvEDH previously invoked.
It presents a certain number of obligations, which Law professionals are the keepers. But in a anternative procedure of conflict resolution, the requirement of its respect by lawyers of the parties is mostly about the necessity of the contradictory nature of the debate and on the mutual information.
We can find this requirement again in the French New Code of Civil Procedure, in article 15 : “Parties will have to make each other know, in the appropriate time, the means of facts in which they base their pretentions, the elements of proof they produce, and the elements of law they invoke, to everyone be able to organise the defence.”.
The observance of this principle for lawyer will be expressed in the following areas:
– Relation with the interlocutor’s lawyer
– Pieces communication
The relationship with the other party’s lawyer will have to be based on comity, loyalty and fraternity principles, which command the profession.
The pieces communication will be done with original or copies. They will be numerated, with a slip (bordereau) dated and signed by the lawyer. They will also carry the lawyer’s tablet.
Among the pieces, it will be the lawyer duty to traduce or to make traduce the ones, which need it. The means of law or facts might be communicated as a notice or a conclusion (as a pleading record also, but this form cannot exist in the Collaborative process).
The violation of this principle exposes the lawyer to disciplinary sanctions by the Order Council as indicated by article 5.6 of Paris Bar Association guideline.
The conflict of interest appears when a physical or a moral person is implied in numerous interests and when this ends with corruption of the others defence action.
On the physical person, here the lawyer, the conflict of interest appears when professional interest and personal interest are opposed.
The judicial concept defended is once more the right to a fair trial, which is declined this time with the respect of neutrality and impartiality duty necessary, and which requires distance from the lawyer to the adverse party and to the object of conflict.
The interdiction of conflict of interest requires also that the lawyer defends his client’s interests and no the interests of all the parties. However, a violation of the principle couldn’t be invoked when the professional is looking for a compromise that reconciles interests formerly opposed.
It’s the lawyer’s duty to refrain himself if he fears the conflict of interest. However, there is an exception.
If after having informed the parties of the potentiality of a conflict of interest, they manifest expressly their will to going on with the procedure with him, the lawyer won’t violate his professional obligation by accepting.
The conflict of interest is not a crime in French law (only the illegal taking of interest that is a consequence of it is sometimes tort). However, it may end with disciplinary sanctions, as its observation is required by the Guideline of the different French Bar. In fact, it’s an immutable deontological rule.
The question of appearance is also important, as the respect of this foundation has for goal, among other things, to protect the trust of citizen in the judicial institution as in its representatives formerly recognised by it.
If this problematic has been invoked in numerous jurisprudences of the European Court of Human Rights about the duty of impartiality of the judge, it hasn’t been done for the lawyer. He must however showing himself impartial in the prosecution of his duty defence as the appearance of partiality could destroy the trust of the parties and make more difficult to assume his professional responsibilities.
a. Interest of the method:
i. Advantages of the obligation of professionals:
Collaborative Law has a potential that the other ADR methods do not have. In fact, it’s developing faster and faster for reasons that we are going to explain.
Collaborative Law is too often confounded with mediation, with the called “procedure participative”, a French young practice. They are in reality deeply different.
Mediation is also an ADR. The parties choose a mediator, third person, to help them to find a fair agreement thanks to his impartiality. The mediator can be anyone; no particular formation or expertise is required to exercise this function.
The “procedure participative”, which enters recently in the French Code civil (art 2062 and followings), appears more to a sort of preparation before getting to the judge, than to an ADR. Every lawyer can practice it without any training.
In the Collaborative Law, ADR, the thirds are as many as the number of parties (usually two), each one representing its party but always with the intent of finding a good deal. The collaborative practitioners are lawyers trained at this special method, respecting a special protocol produced by the IACP.
The advantages in terms of efficacy and safety are important.
First of all, legal certainty is better protected, as collaborative practitioners are all lawyers. Their knowledge about the legal system permits a research of an agreement, according to the positive law, and so a research of a truly fair agreement.
They can compare what may happen if the negotiation is broken and if the parties finally chose the judicial way, and they can interpret properly the situations. Their participation in the process is an insurance to get a deal based in the more impartial base, the law.
Moreover, professionals invited to take part of the process, bringing their particular expertise in an objective and impartial way, will help them.
The presence of a lawyer is an insurance of confidentiality, as they are obliged to keep the professional secret.
The importance of confidentiality is recalled in the French Code penal, in the guideline of French bar associations, and in the Collaborative participative agreement.
Collaborative Law is different from the other ADR by the professionalism and the expertise of its representatives because of their profession and the duties consequences of it, and because of their formation as collaborative practitioners.
ii. Peculiar advantages of the technique:
The Collaborative participation agreement insures consensualism, sincerity, communication, and confidentiality.
The process provides safety protecting the principle of confidentiality with either thanks to the lawyer deontology and to the collaborative practitioner deontology (confidentiality of the proceedings in case of failure, duty of giving up the record for lawyers and experts, duty of the lawyer) and offering to the parties’ solutions accepted by law professionals.
It provides too the insurance of a certain efficacy, thanks to the use of experts, to the protection of the sincerity principle imposing it as a sine qua none requirement, and of course to the current advantages of ADR (financial, emotional, and time costs saving).
But the advantages of Collaborative Law are only about the contractual obligation of the parties. That’s why it might be difficult for the one and other, to demand for damages in the case of a break of these obligations.
b. Legislate the Collaborative Law:
i. Legitimacy of an institutional codification:
As we said previously, Collaborative Law represents some particularism, which ends up with advantages for the ones who use it.
We don’t have to demonstrate its utility for the litigants.
But when the problematic of its codification is mentioned, the question of the potential consequences of the promotion of this practice has to be asked. Let’s think about the following question: What could be the advantages of a formal integration to the French normative system of the Collaborative Law for the French State?
It may be interesting to see here that the satisfaction of private interests satisfies sometimes the public ones.
To promote Collaborative Law by a codification means for French State to encourage and advantage the effects of this practice in the system of conflict resolution.
As an alternative way of resolution, it permits to unclog the trials, and so, it permits a faster treatment of the cases resolved by the judicial way. Now that France has been condemned several times by the European Court for Human Rights because of its violation of article 6 and its guarantee of resoluting conflict in a reasonable delay, the promotion of the alternative way of resolution appears as a good solution to limit the problem.
But the use of Collaborative Law and its requirement of professionalism is also an insurance of efficacy which serve the protection of legal certainty as it allows:
– A conscious opinion
– Solutions judicially adapted
If l’Etat de Droit pretends to promote Justice, it does it through Law. Positive Law is the expression of a state vision of what is fair.
The litigants resolving a conflict with Collaborative Law will be confronted to solutions corresponding to the same positive Law (eve if its application and its interpretation will be more flexible).
Consequently, by promoting Collaborative Law, the French State would propose to its litigants an alternative way of conflict resolution which would protect legal certainty, constitutional principle, and which would create solutions that would correspond to the particular state vision of Justice and of what is fair.
Collaborative Law is also the promoter of some important notions for the French judicial institution : sincerity (bonne foi), confidentiality, … etc.
In fact, the requirement of confidentiality for the Law professionals is particularly important in Collaborative Law.
As we know that the break of this obligation in the exercise of certain particular professions is a crime incriminated by French Code penal, to encourage a practice which control it even better is equal to to better protect it, and consequently to better protect public order.
But moreover the consequences that Collaborative Law INRINSEQUE qualities may provoke, the consequences of the simple promotion of this practice presents numerous advantages.
In fact, by proposing to the litigants an easy way to know what is and how use Collaborative Law (by searching in the codes, or other legislative texts), The state reduces discrimination risks on information. The knowledge of the collaborative practice may be done through some texts DISPONIBLE POUR TOUS, instead of by LE OUCHE Z OREILLE as it is now.
Most of them are from the same element: the litigant’s trust.
By codifying the collaborative practice, French Law give to it a bigger legitimacy because of its new institutional value.
But, this action is also the proof of some state will insuring the foreign investors.
In social law, France is perceived by the foreign investor as a hostile territory. Even if the country has advantages (French savoir faire, market, productivity, … etc.) it’s also one of the less favourable for the employer of the European ones. High tax costs, tradition of contestation for the employees and the unions, and maily a particularly protective law for employees.
It’s normal that with this landscape, the foreign investors don’t show enthusiasm to invest time and money on the national territory.
By favourising the use of a discreet, fast, cheap and conventional practice, the French State shows its will to insure a stable, protected and protector area for making the foreign investors feel safe by establishing an efficient method of conflict resolution, far from the obstacles coming from French particularism.
At least, the institutional supervision of Collaborative Law could permit to incorporate new requirements, which without attempting to its flexibility, could ensure in a better way the very fundamental rights of litigants as its use would be, obviously, less discretionary.
In fact, the benefits of a legislation supervising the practice of collaborative law are not only about the win of legitimacy, but also because of material contributions that we will see now.
i. Support and contributions of the institutional codification:
The participative process, alternative way of conflict resolution, sort of French version of Collaborative Law, was codified in 2010 and became effective in 2012.
As we saw, it is different from Collaborative Law because of the lack of obligation to abandon the record in case of fail but also by the formal interdiction of its application to certain social law cases as said in article 2064 of Civil Code: “ There is no convention (of participative process) which could been concluded to resolve conflicts which rise in a work contract submitted to the Work Code dispositions between the employer, or their representatives, and the salaried they employ”.
However, this practice presents obvious similarities with the collaborative one, especially that the parties engage themselves on a contractual base.
Let’s study the way it’s treated on the Civil Code, and on the Civil procedure code:
– Article 2062 of Civil Code deals with the definition of the Participative Procedure convention. This definition could perfectly fit for the Collaborative Participation Agreement as its requirements are to be:
o Wanted by all parties
o Realised without a judge or an arbitrator intervention
o Based on a joint commitment of research and sincerity for finding a resolution
– Article 2063 is about the imperative nature of the written convention, under penalty of nullity. It’s also about the content of this convention:
o Its term
o The conflict subject
o Necessary pieces and information to solve the problem
Article 1545 of Civil Procedure Code is also about this requirement and adds the mention of names, family names, and address of the parties and their lawyers.
To fix the content of the Collaborative Participation Agreement, as a model, an unchangeable structure, would allow to standardize the practice, and so to avoid that other uses may be called “Collaborative Law”.
– Article 2064 deals with the different kind of conflicts, which could be resolved by the participative process, and excludes the conflicts between employer (or representatives) and his employees in a Work contract.
If it’s primary to determine the scope of application of Collaborative Law, is also important to underline that the resolution of a social conflict, in the meaning of conflict in the working area, cannot be pushed away for it.
In United States, 70% of this conflict are resolved by ADR. In fact, this solution faster and cheaper is preferred to the judicial way.
This tendency is becoming more and more important. Conflict in the working area presents hidden costs. By affecting the employees’ mood and their way to perceive their future in the structure of the enterprise, this conflicts have consequences on variable such as productivity for example (For example, 50% of the employees declare to loose time during the working hours by worring about the possibility that the conflict starts over again.).
– Article 2065 pretends protect the good development of participative procedure by declaring the nullity of the recourse to the judge during its progress.
The recourse to the judge is however possible to make execute the conventional final decisions when it’s not respected by the parties.
Parties to the process would also be able to ask, in emergency cases, for temporary or conservative injunctions.
About nullity of the judge recourse as long as the participative process is not over, a parallelism could be done with the obligation to not recourse to the judge during the collaborative process that the parties committed to respect by signing the Collaborative Participation Agreement. If this obligation is not observed, then the process will immediately end. It couldn’t be another way as it’s based on sincerity, volontarism and mutual trust of the parties, some principles destroy by the unilateral decision of abandoning the procedure. The parties couldn’t be forced to negotiate.
However, the formalisation of the judge recourse interdiction during the process, by its codification, would give to it a new legitimacy that could form one more element in favour of the procedure respect until the last session, fixed in the Collaborative Agreement.
– Article 2066 reminds the possibility to homologate the consensual resolution accepted by the parties during the participative process.
This action reinforces the enforceability to which they already have being ok.
In case of the process fail, parties could use the judicial way directly, without passing by previous mediation or conciliation, even if they are required by law as said in article 1558 of Civil Procedure Code.
It’s important, even necessary, to invoke formally which are the alternatives possible for the litigants in case of collaborative process fail.
There is a third option: the one of the partial compromise, the parties could recourse to the judge, the most diligent party, or the two of them, in the purpose to make homologate by him the resolved part and to make him decide for the other following the expected in article 1559 of Civil Procedure Code.
The enforceable nature is not effective in a automatic or previous way. It depends on the parties’ will, and comes after the birth of an agreement approved by all.
This element formalisation would allow to inform parties about the way to protect the acquired of collaborative process.
We will conclude that Participative Process, as Collaborative Law, could lead to compromises or other agreements enforceable, only with the parties acceptation.
However, about Collaborative Law, the interest of formalising the possible attribution of an enforceable nature, and the one to enumerate the different kind of ends for the procedure (lack of agreement, partial agreement, complete agreement) may better inform the parties of the supplementary precaution they could take, to make observe the dispositions agreed at the end of the last session.
In the hypothesis of a Collaborative Law codification, the elements that make it different from the participative process will have to appear.
So, it’s about the lawyer commitment to abandon definitively the record if there is a process fail, and about the possible application of this alternative way of conflict resolution in the working area.
But there is also an element that we don’t have talked about: the participative process doesn’t encourage enough the negotiation, as it makes too easy the passage from the alternative method to the judicial one. That’s why the unilateral recourse to the judge as the process is not over, would end on the nullity of the action and the nullity of the alternative process (in opposition to the participative process which only pronounces the nullity of the recourse).