The purpose of this article is to provide a general overview of the interdisciplinary model of conflict resolution known as Collaborative Law, also referred to as Collaborative Practice. This model of dispute resolution has developed over the past 25 years and is now actively practiced in an estimated 25 countries globally and in every State in the U.S., including Illinois. This article will provide: a description of the elements of the Collaborative Practice model and how it differs from mediation; a brief historical overview of the development of and the scholarship around the practice and theory of the Collaborative model; and, information about what Illinois lawyers can do to retool their practices to include this limited-scope representation model as an additional service they can offer to clients.
II. Collaborative Practice – Defined
Briefly, Collaborative Practice (CP) is a consensual non-litigation process in which parties in conflict and their chosen professionals (attorneys, mental health and financial professionals) enter into a written agreement to focus all efforts, energies and resources on problem solving without reference to a third-party adjudicator (judge or arbitrator). CP is a form of limited-scope representation. In this article the focus will be on the application of the model in the area of family law, although the model has application in areas such as probate and business disputes.
Some other basic elements of CP are:
- Informed consent by all participants in the process;
- A commitment by the professionals to withdraw if either client chooses to go to litigation;
- Voluntary, good faith and honest exchange of all information needed to resolve the conflict; and
- A commitment to strive for solutions that take into account the interests of all the stakeholders
One question which is repeatedly posed by lawyers on first hearing about the model is – “how is it different from mediation?” There are several significant differences between
CP and mediation. In mediation, the mediator is a neutral professional (not necessarily a lawyer) who does not dispense advice but rather facilitates communication and negotiation between the parties directly. Conversely, CP lawyers act as advocates, legal advisors, and negotiators.
CP calls on lawyers to think differently about their roles in the conflict resolution continuum. It calls on them to use interest based negotiation skills not positional bargaining techniques. The model also calls on lawyers to work as a “team” and to partner with their clients, and with other specially trained professionals (mental health or financial professionals), to help the clients craft unique and sustainable future-focused solutions aimed at keeping them, the clients, out of the court system now and in the future. As one of the leading scholars in this area, Pauline Tesler, so eloquently states, “When lawyers think differently, they behave differently and counsel their clients differently.”
III. Historical Background
Collaborative Law is the brainchild of Minnesota attorney Stu Webb. In the 1980’s Webb, then a long-time practicing family law litigator had grown weary of the contentious and bitter nature of trial practice. On January 1, 1990, he declared himself a “collaborative lawyer.” For Webb, this meant that if the attorneys are “settlement lawyers”, and it (the dispute) does not settle then those attorneys have to get out and turn the case over to the trial lawyers. This model of practice is similar to the British solicitor-barrister model in which the solicitors work up the case for settlement and the barristers take the case to trial if it does not settle.
Just as Webb is considered the “godfather” of the movement, San Francisco attorney, Pauline Tesler, and mental health professional, Peggy Thompson, are considered the “godmothers.” Tesler’s book, Collaborative Practice, Achieving Effective Resolution in Divorce without Litigation, published by the American Bar Association, is now in its second edition. This book is a “must have” on the bookshelf of any lawyer contemplating “retooling” his or her practice to include Collaborative Law services. Tesler and Thompson have also written a book directed to the public to educate more fully about Collaborative Practice as a consumer choice.
Out of the minds and hearts of a small handful of disheartened litigators and mental health professionals has grown a worldwide organization, the International Academy of Collaborative Professionals (IACP). With the direct advocacy from many within IACP, the Uniform Collaborative Law Act (UCLA) was formulated and adopted by the Uniform Law Commission in 2010. The UCLA has now been passed into law in eleven States in the United States.
IV. Standards of Practice and Training for Collaborative Professionals
The IACP has set forth Standards for Collaborative Practitioners and Ethical Standards for Collaborative Practitioners. Both sets of standards echo the years of continuous efforts to cultivate, revise, and adopt common practices among CP professionals.
A clear understanding of the Principles of Collaborative Practice is an essential first step for any professional looking to become a Collaborative Practitioner. A twelve to fifteen hour introductory training in CP and additional communications skills training (generally in the area of mediation) are the recommended first steps. Such training educates professionals in the core elements of Collaborative Law and how these are different from settlement negotiations in the context of conventional litigation.
The Collaborative model is a uniquely client-driven process which produces the best individualized results for each unique situation. At the center of the model is the understanding that each client has the support, protection, and guidance of his or her own lawyer and the other professionals who form the interdisciplinary team. The other professionals can include: a Neutral Child Specialist, a Financial Neutral, or a Collaborative Divorce Coach (sometimes also referred to as a Communications or Process Coach). Professional teams are configured to fit the particular circumstances of each case. Introductory training in CP Law is essential for all the professionals, not just the lawyers. Clients benefit throughout the process from the assistance and support of their professional team. The professional team by virtue of their common training in the model, speaks the common language of CP. With the help of an understanding and responsive professional team (which can address all facets of their dispute-legal, financial and emotional) clients are better able to negotiate their own agreements honestly and in-person and to create arrangements that are voluntary, future-focused and mutually beneficial.
There are several key points to understand about the Standards for Collaborative Practitioners. To begin with, these Standards are voluntary guidelines which professionals aspire to reach rather than a specific criterion to be followed. The intention of the Standards is to create a better practice and to build confidence in the CP process. It is important to remember that the Standards are a work-in-progress and are expected to evolve and change as the model grows in acceptance and application.
Along with the minimum standards, the IACP has developed Ethical Standards for Collaborative Practitioners. CP aims to bring about a greater amount of diversity in the clients, which can lead the practitioner to better face the client’s physical, psychological, and emotional challenges. It is critical to recognize the need to better address all dimensions of the client’s problem and to have effective mechanisms for turning to other professionals to help address the challenges, interests, and goals of the client, especially when those challenges, interests and goals are outside the education and competency of one’s primary profession. Example: lawyers turning to mental health professionals when the client’s concerns or needs are in the emotional or psychological arena. Confidentiality is another vastly important aspect of the Collaborative Practice. A practitioner’s own ethical and professional standards for confidentiality and privacy still apply. A practitioner’s own professional standards of care are not trumped by the IACP Standards. For example, although the practitioner may believe that the Collaborative Process is the best for a client, a Collaborative lawyer is still responsible for informing the client about all available options for resolving disputes, including: litigation, arbitration, mediation, negotiation.
This has been a brief overview of the CP model of conflict resolution as it stands today. This is a rapidly evolving area of practice which has at its core the aspiration to “Do No Harm”, whether it is in family law, business law, or probate law or other disputes. Professionals wishing to offer this model of dispute resolution must first educate themselves about its nuances so as to be able to adequately identify cases, clients and circumstances which are appropriate and inappropriate for the process.
[i]Information about professional practicing the model around the world can be found on the IACP website at https://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups.
Limited Scope Representation is already permitted under Illinois Law. See Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer. Adopted July 1, 2009, eff. Jan. 1, 2010. IL ST S CT RPC Rule 1.2
Pauline H. Tesler, Collaborative Law: Achieving Effective Resolutions in Divorce without Litigation, 17 (ABA 2d Ed. 2009).
See video interview with Stu Webb found at http://cuttingedgelaw.com/video/video-stu-webb-godfather-collaborative-law (visited July 22, 2011).
J. Kim Wright, Lawyers as Peacemaker, Practicing Holistic, Problem-Solving Law 52-53 (ABA 2010).
See generally Tesler
Id. at 23-48.
See generally Pauline Tesler and Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life (Regan/Harper Collins 2006).
See the International Academy of Collaborative Professionals website at www.collaborativepractice.com. Information about membership with the IACP can be found at https://www.collaborativepractice.com/_t.asp?M=8&MS=12&T=Membership. At the time this article was written there were approximately 5,000 members of the IACP world-wide. Individuals can find other Collaborative Practitioners in their area by visiting https://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups.