2003 Annual Meeting Information

Association of American Law Schools
2003 Annual Meeting
Washington, D.C.
Thursday, January 2 - Sunday, January 5, 2003

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Friday, January 3, 2003
8:45 a.m.-5:30 p.m.
Annual Meeting Workshop on Dispute Resolution:
Raising the Bar and Enlarging the Canon

Concurrent Session: Comprehensive Law Movement

"Collaborative Lawyering" or "Settlement-Only" Counsel:
Implications for the Delivery of Legal Services
and the Practice of Law

Dr. Julie Macfarlane
University of Windsor

"Collaborative lawyering" is part of a "new wave" of lawyering philosophies and strategies - including holistic lawyering, therapeutic jurisprudence, and the application of meditation and mindfulness to legal practice - that reflect the disenchantment of both clients and counsel with traditional forms of adversarial process and client representation.

Civil justice innovations over the past 15 years have focused on changing the procedural context within which settlement will take place, including case management programs and court-annexed mediation programs. A different approach focuses on reconceptualising and restructuring roles and relationships among lawyers who, as the agents of disputing in civil justice systems, are primarily responsible for the negotiation of settlements.

What is "Collaborative Lawyering"?

"Collaborative lawyering" refers to a contractual commitment between lawyer and client not to resort to litigation to resolve the client's problem. The lawyer is retained to provide advice and representation regarding the non-litigious resolution of the conflict, and to focus on developing a negotiated, consensual outcome. If the client does decide that legal action is ultimately necessary in order to resolve the dispute, the retainer stipulates that the collaborative lawyer (along with and any other collaborative professionals such as divorce coaches or financial planners) must withdraw and receive no further remuneration for work on the case.

Originating in Minneapolis in 1990, networks of lawyers wishing to participate in collaborative lawyering arrangements have flourished in various US states, including Minnesota, Ohio, Wisconsin, California, Texas and Georgia and now in most Canadian including British Columbia, Alberta, Saskatchewan and Ontario. Proponents of collaborative law suggest this approach reduces legal costs, expedites resolution, leads to better, more integrative solutions and enhances personal and commercial relationships.

DIFFICULT QUESTIONS

The growth of collaborative lawyering - thus far confined almost entirely to family law practice - has been controversial. While the effort to develop a more responsive and less aggressive form of family practice is welcomed by many, the practice of collaborative or settlement-only lawyering raises a host of practice, ethical and organizational issues for lawyers. For example

To what extent can collaborative lawyering adequately protect family law clients who are fearful of negotiating directly with their former spouse?

What type of advocacy are lawyers providing where all or most negotiations take place in front of the other side? (the "fourway" meeting)

Does the requirement that all "relevant" (?) information is disclosed and shared among members of the collaborative "team" - clients and counsel - signal the death of solicitor/client privilege?

In some cities, the collaborative "team" include therapists and/or financial advisors. What are the implications for legal practice of such close intra-professional co-operation?

What are the appropriate qualifications for lawyers describing themselves as "collaborative"? And are some lawyers cynically exploiting collaborative lawyering as a marketing ploy?

What is the relationship between collaborative lawyering and family mediation? Does collaborative lawyering "replace" family mediation?

THE FIRST EMPIRICAL RESEARCH STUDY

The Social Science and Humanities Research Council of Canada has funded a three year study (2001/4) to examine and evaluate the potential impact of the emerging practice of "collaborative lawyering". Dr. Julie Macfarlane of the University of Windsor Faculty of Law (presently Visiting Professor at Osgoode Hall Law School) is the Principal Investigator.During the first year of this study approximately 70 lawyers and clients were interviewed at more than a dozen North American sites. During year two of the study (2002/3) the progress of a sample of cases where legal services have been contracted on a collaborative basis are being tracked at five pilot sites (Minneapolis, San Francisco, Regina, Medicine Hat and Vancouver). Collaborative professionals and their clients involved will be interviewed (confidentially and all data anonymised) at various stages of the case. In addition focus groups at each pilot site will discuss the collaborative process and evaluate its impact on the practice of law.

From the plethora of questions raised by collaborative lawyering (see back), key questions for this project are the impact of collaborative lawyering on the traditional model of lawyer-to-lawyer negotiations, including the changing notion of advocacy implied by the collaborative approach - what types of outcomes are produced by the collaborative model - and the range of professional ethical issues implicated by the CL model (eg screening, zealous representation, disclosure, solicitor/client privilege, pressure to settle, withdrawal).

THE PHENOMENON OF THE COLLABORATIVE LAW GROUPS

The Collaborative Lawyering Groups or Networks that are springing up all over North America represent a fascinating phenomenon in themselves. Since a commitment to eschew litigation requires the agreement of all counsel on a file (and hence the development of a formal collaborative retainer agreement), groups or associations of collaborative lawyers are being established to co-ordinate lawyers who wish to do this work. Collaborative Law groups commonly set membership and training requirements, and generally act as "gatekeepers" to other lawyers and professionals wishing to participate in these processes. Some groups are even developing expulsion criteria to deal with members who have been acting in a manner considered "uncollaborative"! The groups function as social as well as professional networks for their members, offering collegial support to lawyers who are seeking a different way to serve their clients and to practise law.

TEACHING ABOUT COLLABORATIVE LAWYERING

While there are numerous collaborative law trainings being offered all over the country, the integration of information and, most importantly, critical debate about the growth of collaborative law into law school curricula is at a very early stage. Obvious places to consider teaching about collaborative lawyering include existing courses on dispute resolution, the legal profession and family law. Some of the questions that might be raised in these classes include:

As part of a course on methods of dispute resolution,
- What does it mean for counsel to commit to a settlement-only strategy?
- What types of skills and abilities does a settlement-only advocate require?
- How should a "negotiation specialist" be trained and qualified?
- What if any difference might an undertaking to forego litigation have on the relationship between lawyer and client?
- What safeguards are needed where one spouse appears much stronger than the other in the collaborative process?
- For whose benefit is the constraint on litigation - client or lawyer?
- What is the relationship between collaborative lawyering and other dispute resolution options available to family law clients?
As part of a course on the legal profession,
- What are the implications of a two-track profession (settlement, litigation) for the internal culture and hierarchies of the profession?
- What if any difference does it make to the lawyer's conception of advocacy to represent a client on (a) a collaborative file? (b) a litigation file?
- Is it likely that collaborative lawyering could be expanded into areas of legal practice outside family law? Why or why not?
As part of a family law course,
- What advantages does collaborative lawyering offer family clients?
- What is the influence of the "shadow of the law" on collaborative lawyering and its outcomes?
- What are the downsides to collaborative lawyering for some family clients?
- How should a history of violence or intimidation be dealt with in a collaborative process?
- What client profile might be most suited to this approach?
- Should collaborative lawyering settlements be subjected to scrutiny by a family court judge?

A SHORT (EXCERPTED) READING LIST ON COLLABORATIVE LAWYERING AND RELATED SETTLEMENT-ONLY APPROACHES

Current October 2002

Bryan, Penelope E. "'Collaborative Divorce' Meaningful Reform or Another Quick Fix?" 5 Psychology, Public Policy & Law 1001 (December 1999)

Couglan, Stephen, "Collaborative Lawyering" in CBA EPIIgram (a publication of The Emerging Professional Issues Initiative) (June 2001) available online at www.cba.org/EPIIgram/June2001/

Coyne, W. "The Case for Settlement Counsel" 14 Ohio State Journal on Dispute Resolution (1999) 367

Gutterman, Sheila, "Collaborative Family Law" (2001) 30(11) Colorado Lawyer 57.

Landau, Barbara, "Collaborative Family Law: An Oxymoron or a Stroke of Genius?" 26 ADR Forum 1 (March 2001)

Lawrence, James, "Collaborative Lawyering: A New Development in Conflict Resolution" (2002) 17 Ohio State Journal on Dispute Resolution 431.

Rack, R. "Settle or Withdraw: Collaborative Lawyering Provides Incentive to Avoid Costs of Litigation" Dispute Resolution Magazine, Summer 1998, ABA Dispute Resolution Section

Riskin, Leonard, "The Contemplative Laywer: On the Potential Contributions of Mindfulness Mediation to Law Students, Lawyers, and their Clients" (Spring 2002) 7 Harvard Negotiation Law Review 1.

Ross, Nancy, "Collaborative Divorce: An Interdisciplinary Model" The Collaborative Quarterly vol. 2, Issue 2 (October 2000) at 14

Sholar, T. "Collaborative Law - A Method for the Madness" 23 Memphis State University Law Review (1993) 667

Tesler, Pauline, "Collaborative Law: A New Approach to Family Law ADR" 2 Conflict Management 12 (Summer 1996)

Tesler, Pauline, "Collaborative Law: A New Paradigm For Divorce Lawyers" 5 Psychology, Public Policy & Law 967 (December 1999)

Tesler, Pauline, "Collaborative Law: What It is, and Why Lawyers Need to Know About It" 13 American Journal of Family Law 215 (Winter 1999)

Tesler, Pauline, "Collaborative Law: Where Did It Come From, Where Is It Now, Where Is It Going?" 1 The Collaborative Quarterly 1 (1999)

Tesler, Pauline, "The Believing Game, The Doubting Game, and Collaborative Law A Reply to Penelope Bryan" 5 Psychology, Public Policy & Law 1018 (December 1999)

Tesler, Pauline, "The Good, the Bad and the Ugly: Collaborating with Anyone Who Shows Up - A Conversation with John McCall" The Collaborative Quarterly vol. 2, Issue 1 (May 2000) at 1

Williams, Gerald, "Negotiation as a Healing Process" (1996) 1 Journal of Dispute Resolution 1

Winick, Bruce, "Symposium: Creative Problem Solving Conference: Therapeutic Jurisprudence and the Role of Counsel in Litigation" (2000) 37 California Western Law Review 105.

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