Challenges lead to Change. Traditional means and methods are often left behind and new technologies become commonplace when we emerge from shared crisis. Will this change benefit clients?
The business of traditional litigation and trial work is going to change, and these changes will be client driven. The legal profession can be slow to change, but COVID19 has reinforced that change is happening. Previously, for example, online depositions or mediations were the exception, not because they were not technologically possible, but because they had not been embraced in the legal world.
Yet, in the space of mere weeks, grandparents, kindergartners and everyone in between started Zooming together in on-line family gatherings, schools are teaching on-line and friends are enjoying remote cocktail parties. Clients will question the time and expense of having their lawyers travel to every deposition, many of which will now be taken remotely. Clients will demand these efficiencies and look for others. This is but one aspect of litigation that is changing. There are many. And these changes will be driven, as they should be, by clients.
Looking forward, what priorities do clients want served when they have a dispute? Most share the following priorities:
1) They want the ability to control the schedule of their dispute resolution, whether courts and law firms are open or closed.
2) They want efficiency, including on-line meetings and electronic information exchange to replace or at least to supplement in person meetings and engagement
3) They want expert analysis, not a battle of experts.
4) They want resolution on their terms, and they want the best result.
5) They want to preserve the relationships that matter to them and to keep their disputes confidential
6) They don’t want to break the bank to solve their problem.
7) They want finality, a binding result and not endless appeals.
While taking small steps to bend the litigation system to meet these priorities is possible, what if a more significant jump is taken to embrace them? What if we look at Collaborative Law?
Collaborative Law is an established procedural practice of law that resolves disputes in a pragmatic and efficient manner that focuses on the parties’ priorities. Used for decades in Family Law cases, it has been adapted to handle a wide range of commercial and business disputes. Collaborative Law attorneys are not only trained in the areas of law in which they practice and in the process of Collaborative Law, but also in the nature of facilitation of conversations and engagement. They are practiced in working with clients to find solutions.
The Basic Tenets of Collaborative Law include:
Participation Agreement- the parties, each represented by collaboratively trained counsel, agree in writing to use the collaborative process to resolve their dispute. Further, this participation agreement includes a provision that the parties will not initiate or pursue litigation while engaged in the collaborative process and that the attorneys may not represent either party in litigation related to the matters addressed in the collaborative process. The participation agreement may also include a confidentiality agreement. In order to expedite the process of having parties engaged in a dispute agree to the terms of a Participation Agreement, most Collaborative Attorneys use standardized forms that require little modification. Collectively the parties to the agreement become the “Collaborative Team.”
Identification of Interests and Needs- the Collaborative Team meets to share and hear from each other regarding their interests and needs. Different then making demands, or staking out settlement positions, this is a time to identify the interests, needs and concerns of the parties in a common meeting. Instead of making a demand for $100,000, a party may say, “I need to be able to make payroll.” The goal to take the parties as they are and lay out the interests that need to be considered in any solution to the issue. Counsel are trained to facilitate this discussion.
Exchange of Information- In a following meeting the Collaborative Team meets to identify and exchange information needed to find a resolution. Rather than engaging in extensive written discovery and depositions, the parties focus on the information that is actually necessary and the manner in which the information will be collected and shared. The Participation Agreement includes an affirmation that the parties will be forthcoming and provide the information relevant to resolution.
Shared Experts- If experts are necessary, the parties and counsel jointly retain a shared expert who reports to all parties and is a shared source of information.
Generation of Solutions, Evaluation and Selection of Proposals- over a series of collective meetings where all counsel and parties are present (either in person or via remote conferencing), the Collaborative Team identifies shared goals and individual interests, then generates and considers possible solutions and finally evaluates and selects a proposal that most successfully meets the parties’ needs. The meetings can be held as quickly as the parties are able to move through the process or at a more deliberate pace if appropriate.
Settlement Agreement- once a resolution is reached, the parties sign a formal and enforceable settlement agreement.
Turning back to review the priorities shared by most clients, it is evident that Collaborative Law was designed to address them. Specifically, let’s look at how Collaborative Law respects each priority:
1) Clients want the ability to control the schedule of their dispute resolution, whether courts and law firms are open or closed.
Collaborative Law is not beholden to the court’s schedule and the meetings can be conducted at a pace and frequency driven by the parties. Scheduling can be accomplished without need to rely on either Court or Arbitration Administrators and the Collaborative Team can be flexible with the frequency and pace of meetings based on the needs of the parties.
2) Clients want efficiency, including on-line meetings and electronic information exchange to replace or at least to supplement in person meetings and engagement
Collaborative Law meetings can be conducted in person in a common meeting space such an attorney’s conference room or remotely via Zoom or other online meeting platforms depending on the needs and wishes of the parties. This flexibility can accommodate not only challenges of pandemics, but also the needs for travel or other obligations that may make it difficult for each meeting to be in person.
3) Clients want expert analysis and guidance, not a battle of experts.
Rather than having each side retain their own expert to provide competing opinions, a process that is at least twice as expensive than it needs to be, the Collaborative Team discusses the nature of expertise that is required to assist the parties and then jointly hires one expert. The team then provides the information for the expert to review or provides access for inspections, etc. Rather than issuing a report, the expert meets with the Collaborative Team to review their findings and both sides have the opportunity to discuss and ask questions of the expert while all are meeting together. Rather than having to choose one competing version over another, the parties benefit from a neutral expert whose goal is not to advocate for a party, but to give collective guidance. Further, the expert can be utilized in the process of brainstorming solutions, and is not locked into ascertaining fault.
Many Collaborative attorneys work with experts who have also been trained regarding the nature of the Collaborative Law practice so that they better understand the process and are attuned to the goal of serving as a neutral expert whose role is to assist the parties. The clear efficiency and benefits of utilizing experts in this manner is one of the most tangible examples of the benefits of the Collaborative Process.
4) Clients want resolution on their terms, and they want the best result.
Most people don’t want to leave the outcome to someone else, they want some control over the result. Leaving the resolution to a jury is a risk and the reality is that a jury is limited in the resolution it can reach by the boundaries set by the law. What if a better result, more directly relevant and satisfactory may be available?
People also want to win. Many see compromise as giving up, settling as taking less then they deserve. Collaborative Law is not about compromise or settling to get less. It is opening the process to a broader range of solutions. The parties are engaged in the process throughout and Collaborative Attorneys are trained to assist the parties to find an outcome that, to the extent possible, is win for both sides. A resolution, not a compromise. This may be exchanges of services that could not be ordered by a court, it can take multiple forms, but the resolution is one that the parties work to get to together to serve their own interests. This is not Pollyanna, this is trained professionals assisting the parties to find a meaningful resolution after engaging in a process to determine the clients’ needs and interest and working to meet them.
For the sceptics, it is worth noting that Collaborative Law got its start in Family Law cases, not normally considered an area where tensions are low and emotions under control. The success of Collaborative Law in Family Law is based on the fact that it works and that rather than fueling a conflict, it is designed to find solutions.
5) Clients want to preserve the relationships that matter to them and to keep their disputes confidential
It is often the case that disputes arise between parties that have some connection that is likely to continue. In the Family Law scenario it is often the ongoing responsibility to and love for the children of the marriage that leads divorcing couples to have to work out ongoing details related to their children’s lives. A process of dispute resolution that assists in communication, and is focused on solutions not conflict is a helpful predicate to the reality that follows the signing of a settlement agreement.
Ongoing connections are not limited to Family law Cases. In business, there may be a supplier in common or a disputes may arise between subcontractors working for the same general contractor. Frequently there is an interest in working out a dispute so that it does not poison other business relationships. Collaborative Law and the opportunity it provides for not only creative and timely resolutions, but also confidential meetings and agreements can be a useful tool in such circumstances.
6) They don’t want to break the bank to solve their problem.
Results are more important than cost, but cost matters. Collaborative Law, avoiding depositions, unnecessary discovery, and duplicative experts has fundamental cost savings. Less evident, but even more significant, is the fact that Collaborative cases progress at the pace dictated by the parties, and the focus is not on the battle but the solution. This can result in significant savings in not only time, but expense.
7) They want finality, a binding result and not endless appeals.
Rest assured, that when a resolution is reached in Collaborative Law, it is binding once it is memorialized in a legally binding and enforceable settlement agreement and the conclusion of the process.
By: John Ong- a Founding Member of the Board of Directors for the North Carolina Civil Collaborative Law Association is a creative problem solver, practicing out Cranfill, Sumner & Hartzog LLP’s Charlotte office. https://www.cshlaw.com/attorneys/john-ong/
Additional Information:
There are a number of organizations that provide information about Collaborative Law. They include:
North Carolina Civil Collaborative Law Association – https://nccivilcollaborativelaw.org
Global Collaborative Law Council - https://globalcollaborativelaw.com
International Association of Collaborative Professionals- https://www.collaborativepractice.com