A New Way to Avoid the Courtroom: The Ethical Implications Surrounding Collaborative Law

Georgetown Journal of Legal Ethics, The, Summer 2005 by Isaacs, Joshua

Collaborative Law is a rising star in the realm of Alternative Dispute Resolution ("ADR"). Collaborative Law practitioners consider it an idea whose time has come.1 Used primarily in divorce proceedings, Collaborative Law builds upon its predecessors by emphasizing a more civil approach to divorce proceedings. While this new approach attempts to navigate through uncharted waters to create a more effective and individualized method of resolving disputes, it also raises certain ethical questions regarding the role of an attorney. My analysis focuses on three specific, ethically-charged areas of Collaborative Law: first, the disqualification agreement, a pact signed by both parties acknowledging that both attorneys must recuse themselves from representation during traditional litigation if the Collaborative Law process fails;2 second, the level of consent required for a client to approve the initiation of the Collaborative Law approach;3 and third, Collaborative Law practitioners' ability to work within the designed scheme and still serve as zealous advocates for the interests of their clients.4 To answer these ethical quandaries I examine the pertinent Model Rules of Professional Conduct ("Model Rules"), and then suggest appropriate actions that would provide more clarity to this emerging form of ADR.

I. THE INSPIRATION AND PHILOSOPHY BEHIND COLLABORATIVE LAW

The motivation behind the creation of Collaborative Law helps explain many of the features that distinguish it from traditional litigation and other forms of ADR. A family law attorney from Minneapolis named Stuart Webb masterminded this innovation.5 Webb claims that "deep, personal discontent on the part of family law practitioners with the way the adversarial system operates in the field of family law"6 provided the impetus to develop the Collaborative approach. He claimed that on a personal level he suffered "family law burnout," negatively impacting his ability to function as an effective family law practitioner under the traditional system.7

Collaborative Law specifically seeks to create an atmosphere conducive to achieving its philosophical goals. Some of the hallmarks of Collaborative Law include: full and voluntary discovery disclosures,8 avoidance of even a threat of litigation throughout the negotiation process,9 the commissioning of neutral experts to participate in the discussions,10 and a disqualification agreement providing that the parties' inability to resolve their differences precludes the attorneys from representing the clients in later legal proceedings.11 The disqualification agreement is a contract signed by the disputing parties at the beginning of the proceedings mandating that if settlement efforts prove unsuccessful, the attorneys must récuse themselves when the parties proceed to traditional litigation. The disqualification agreement is the foundation of the Collaborative Law theory, providing credibility to the parties' commitment to reach a settlement without resorting to litigation.12 Although the principles of Collaborative Law order an unsuccessful practitioner to help facilitate the transition process to the next attorney, this requirement still forces the parties to bear the significant burden of finding new representation prior to trial.13 As an additional burden, none of the expert witnesses used during the Collaborative Law proceedings can participate in the litigation efforts.14

The actual Collaborative Law process involves a series of four-way settlement meetings between the parties and their attorneys. During these meetings, the participants work together in a supportive atmosphere to generate solutions to tough questions in a way that satisfies the objectives of both parties.15 In the first four-way meeting, the lawyers generally shoulder the burden of facilitating the discussion because of the clients' unfamiliarity with the process.16 For the duration of the subsequent meetings the attorneys will pull back from the spotlight, allowing the parties to discuss their settlement options.17 Unlike litigation-style negotiations, these next meetings emphasize piecemeal settlements through discussion to create a feeling of accomplishment and build a foundation for future issues.18

Although Collaborative Law shares many similarities both structurally and philosophically with other forms of ADR, it was created with some significant differences. While all forms of ADR intend to resolve disputes through approaches other than going straight to litigation, certain innovations in Collaborative Law demonstrate evolution of prior ADR approaches in order to more effectively achieve the objectives. For example, Collaborative Law practitioners actively participate as negotiators and advisors for their clients during the meetings between the parties, rather than leaving the parties solely with a neutral mediator.19 In many instances, Collaborative Law adapts the existing ADR infrastructure to achieve the parties' objectives.20

In light of some problems associated with the disqualification agreement found in Collaborative Law, ADR innovators created a related approach called Cooperative Law.21 The two concepts share similar motivations and substance; however, Cooperative Law lacks the disqualification agreement found in Collaborative Law.22 Therefore, the choice between Cooperative and Collaborative Law hinges on whether the parties wish to gamble on the benefits and risks associated with the disqualification agreement.23 While many advocates of Collaborative Law believe Cooperative Law's lack of disqualification agreements removes the credibility of the parties' commitment to avoiding litigation, others deem it a viable option worth consideration because it could be tailored to the needs and objectives of a particular client.24