The civilized resolution of conflict in American society recently took a giant step forward with the issuance of an important ethics opinion by the American Bar Association (ABA) upholding the use of "collaborative law" agreements by lawyers.
The concept of collaborative law may seem like an oxymoron to some, but it is a widely used process in which the lawyers and clients agree that the lawyers will participate solely for the purpose of settlement negotiations and that if the case goes to court, the parties will hire new counsel. Collaborative law has been hailed by many lawyers and clients as a godsend, rescuing them from the quagmire of courtroom battle.
Prior to this year, ethics committees in five states (Kentucky, Minnesota, North Carolina, New Jersey, and Pennsylvania) had approved the use of collaborative law agreements. However, in February 2007, the Colorado Bar Association issued a maverick advisory opinion declaring such agreements to be unethical. According to the Colorado opinion, collaborative law agreements put lawyers in the ethically untenable position of having divided loyalties – to represent the client but also to honor the contractual commitment to the other party to withdraw if litigation ensues.
After the Colorado opinion was issued, thousands of lawyers across the United States who have been using the collaborative law process waited uneasily to see which way the regulatory winds would blow in their states.
The ABA Ethics Committee puts these questions largely to rest, with an opinion (#07-447) squarely supporting the use of collaborative law so long as clients are well informed about the process. According to the ABA, the Colorado opinion is simply wrong: if a client chooses to hire a lawyer for a limited purpose (i.e., just negotiation), there are no conflicting duties – the lawyer is committed to serving the client in the negotiation, but not beyond.
Outside the legal profession, these distinctions may seem like so many angels dancing on the head of a pin. But for lawyers, and ultimately for the public, the stakes are high. Confidence in lawyers and our legal system has plummeted in recent years as the cost of courtroom conflict has soared. Collaborative law – along with mediation, arbitration, and other forms of dispute resolution – provides a powerful tool for reducing those costs and regaining the public's trust.
Collaborative law originated in Minnesota in 1990, when a disgruntled family law attorney, Stuart Webb, decided that he had had enough of courtroom brawls and the ensuing family carnage. Along with some like-minded lawyers there, he began taking cases solely for negotiation. This idea spread to San Francisco in the early 1990s and throughout the US, Canada, and the globe over the past 15 years. Tens of thousands of divorces and other conflicts have been resolved using collaborative law. In two weeks the 3,000-member International Academy of Collaborative Professionals will meet in Toronto for its eighth annual networking conference.
A majority of states in the US now have groups of lawyers engaged in collaborative practice. Although individual states are not required to follow the ABA's lead in ethical opinions, most do. Therefore this new opinion gives collaborative-law attorneys a much-hoped-for green light, but with a flashing yellow light regarding the importance of informing the clients about the risks, as well as the benefits, of this relatively new process.
What are the risks? Experience to date with collaborative law suggests that the primary risk is that one party may claim to be ready to negotiate but then resists settlement. The collaborative law agreement lacks a mechanism for overcoming such foot-dragging, other than persuasion – or going to court, which means abandoning the process altogether and hiring new counsel. Critics of the collaborative law movement also contend that lawyers must be zealous in representing clients and that agreeing to collaborate dilutes this commitment.
However, most clients in a dispute are looking for an honorable peace, not war, and collaborative lawyers can be just as zealous about seeking such a peace as litigators are about victory in the courtroom. Empirical studies to date suggest that clients in collaborative law cases are satisfied with both the process and the settlements achieved. One of the primary reasons for this success appears to be self-selection – in other words, the clients and lawyers who embrace the collaborative process tend to be those who are seeking to resolve conflict rather than prolong it. In addition, the collaborative law process creates a container for conflict – one that promotes information-sharing, problem-solving, and respectful communication. Sometimes the collaborative process enables people to do more than just settle their differences but to actually resolve them on a deeper level than is possible with the bare-knuckles negotiation that is typical in noncollaborative cases.
The ABA's approval of this process is a watershed moment for the collaborative law movement, and will probably increase the use of collaborative law dramatically throughout the US, thus giving lawyers a greater opportunity to fulfill the role that Chief Justice Warren Burger once described as vital for attorneys – to be "healers of conflict" as opposed to simply hired guns.
David A. Hoffman, a lawyer and mediator at Boston Law Collaborative, LLC, is chair of the Collaborative Law Committee of the American Bar Association Section of Dispute Resolution and teaches mediation at Harvard Law School.