Collaborative law at 25: a Canadian study of a global phenomenon.
It has been said that, "Every truth passes through three stages. First it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident". (1) A quarter of a century has brought Collaborative Law (CL) (2) through these three stages. Once ridiculed and opposed, it has now become a staple of family law dispute resolution in many communities around the world. This article will chart this journey by way of reporting on a cross-Canada empirical study.
CL is a dispute resolution process by which parties and their lawyers enter into a binding contract, known as a "participation agreement", which limits the representation to a facilitative problem-solving process with the intent to reach a negotiated settlement. (3) CL has a unique focus on settlement in a process with representation for both sides. The participation agreement acts as a contractual commitment to particular processes and behaviours, as well as to settlement. Lawyers in CL must settle or withdraw from representation. In addition to this, there is a Disqualification Agreement (DA), whereby the lawyers relinquish the ability to represent those clients in any adversarial proceedings should the CL process terminate. Other requirements commonly delineated in the participation agreement include: full, complete, early voluntary disclosure of relevant information without formal discovery; good faith negotiation and participation with integrity; and confidentiality within and following the CL process. (4) Additionally, professional experts, who can include mental health professionals and financial professionals, are hired jointly by the parties with the goal of maintaining civility, saving time, and decreasing costs by avoiding duplication. Negotiations in CL are predominantly conducted through a series of four-way meetings during which parties and their respective counsel attempt to craft a mutually beneficial solution.
CL has been touted by its practitioners as reducing costs, expediting resolution, leading to better, more creative solutions, and enhancing relationships. (5) Proponents of CL argue that the process offers more creative, longer-lasting outcomes than litigation and other dispute resolution mechanisms because of the commitment to settlement from the outset, through both lawyer disqualification, and the integral involvement of counsel in the negotiation process. As noted by Julie Macfarlane, there is general agreement that CL provides a negotiating environment with less "posturing and gamesmanship" (6) than traditional negotiation, although early research suggested that substantive outcomes often mirrored chose available and achieved through adversarial means. (7) In the decade that has followed since this seminal piece of research, CL has undergone a series of changes and developments. The time is ripe to re-examine the practice of CL in Canada.
This study will examine CL through a historical lens, paired with current empirical work done in the field. Specifically, the research will highlight current practices in four Canadian CL communities. The first part of the article will situate CL within a historical context, outlining the progression and early days of the process. It will then look at the two specific areas upon which this research focuses: the team model and the utility of disqualification. Following such theoretical groundwork, the paper will turn to the methodology and results of the empirical study. Finally, the paper will end with discussion and future directions. This research shows that 25 years after the inception of CL, distinct changes have taken place that have impacted not only CL itself, but family dispute resolution more broadly. These changes are not slowing down. The evolution continues.
II. COLLABORATIVE LAW: A HISTORY
In order to remark on and study the growth of and changes in CL practice, it is essential to start at the very beginning. The story of CL begins with one man: Stuart Webb, the hero, protagonist, and idol of CL. A lawyer and mediator, Webb first conceived of the process of CL in 1990 as a way to address a growing unhappiness on the part of matrimonial lawyers, which he termed "family law burnout". (8) To Webb, incivility among family lawyers seemed on the increase, a phenomenon he met with dismay. On a personal level, Webb wanted to keep the parts of his practice he enjoyed and eliminate the parts he did not, seeking to represent clients purely for settlement. (9) Webb's concern was that settlement in the traditional system was clouded by litigation and thus had strong positional overtones. (10) The only way he saw to get through these positional stances was to have lawyers perform exclusively as settlement counsel. (11)
Webb was not the only professional seeking another method of resolution for families. Beginning in 1992, Peggy Thompson, Nancy Ross, and others began a parallel movement of "Collaborative Divorce". By 1997, however, CL and Collaborative Divorce practitioners converged to spread the word and practice of resolving family matters through interest-based, out-of-court settlements. (12) The first CL practice group in North America was created in Webb's hometown of Minneapolis. CL practice groups are self-governed groups of lawyers trained to practise CL. They set training requirements and act as communities of practice for referral and continuing education purposes. They also fill an important role in providing marketing and public and professional education about CL. A number of such CL networks developed in the San Francisco Bay area and throughout California shortly after. Other early sites of the spread of CL include Cincinnati, Ohio; Medicine Hat, Alberta; Atlanta, Georgia; Salt Lake City, Utah; and Vancouver, British Columbia. (13)
Macfarlane describes the progression of CL practice groups from ad hoc assemblies of lawyers to organizations with formal constitutions, local rules of membership, renewal requirements, and other formalities. (14) CL practice groups are integral to the existence of CL as a process as they perform a gate-keeping function, including those who fit the mold of CL and excluding those who do not. Macfarlane notes the importance of CL groups, stating, "[t]he commitment is strengthened by the 'club' culture of [CL] groups as well as by their sense of shared values. The [CL] group becomes a critical 'community of practice; for individual [CL] lawyers, and it is highly influential in shaping and maintaining informal practice norms and behaviours." (15) The creation of norms within practice groups ensures consistency within the local group, but global consistency also became important for CL to prove itself as a legitimate dispute resolution mechanism.
In order to provide some level of uniformity and efficiency, a networking organization was formed in 1998 under the name: American Institute of Collaborative Professionals (AICP). The movement began spreading to Canada and around the world and hence the name of the organization was changed to the International Academy of Collaborative Professionals (IACP).The IACP remains the umbrella organization, which provides training, networking, standards, and guidelines to practice groups around the globe.
CL owes a debt of gratitude to mediation, as many of its founders entered the dispute resolution field through mediation. Webbhimselfwas a family law mediator who was unsatisfied with the process because clients routinely attended mediation without counsel and lacked the requisite legal advice while negotiating. (16) In mediation, the role of mediator as neutral does not allow for the leveling of any perceived power imbalances. CL, because of the presence of two legal advocates, helps to level the playing field. (17) CL appealed to discontent family law mediators because of the real-time legal advice existing in the process alongside a fervent commitment to settlement. (18) Many lawyer-mediators quickly adopted the ideals of CL as reaping the benefits of mediation with the added benefit of partisan expert legal advice.
Not all authors view the heredity from mediation in a positive light. Beyer, for instance, states that CL differs very slightly from mediation and notes the only difference is CL being a "more expensive, longer, and less efficient process than the average mediated lawsuit, while accomplishing the same goal". (19) Despite some such concern, which is detailed in the early literature on CL, (20) the process quickly evolved and interest in it grew exponentially among lawyers and clients until the present day. Now, CL practice groups exist throughout Canada, the United States, and internationally. To date, CL is predominantly utilized in family law cases and although supporters tout the benefits of expanding CL into other areas of legal dispute, (21) growth in such areas has been slow to take off.
The history of CL spans a quarter century. CL has evolved and changed over time and has been met, at different times and by different people, with both cynicism and excitement. The future of CL remains to be seen. The aim of this research is to document the particular progression in two particular areas: the use of team practice and the utility of disqualification.
III. THE TEAM APPROACH AND MANDATED DISQUALIFICATION
As can be deduced from the history of CL outlined above, two essential ingredients of the process are the use of a team approach, which includes lawyers and the potential for other professionals, and mandated disqualification, which requires lawyers to withdraw in the case of failed settlement. Each of these ingredients will be detailed in this Part to prepare the reader for the upcoming empirical portion of the research.
a. The Team Approach
The benefits afforded by the CL process are possible, in part, because of the potential to use a team of professionals in the process. Often, the parties and lawyers benefit from collaborating with other professionals to devise ideal outcomes that suit particular client needs and interests. A team approach has become an essential component of the CL process in most practice groups. Lawyers work as a team and employ other professionals to join them as needed. While Stuart Webb did not initially envision the cross-disciplinary component of CL, it did not take long for this to become part of the process.
The use of team models, generally, is derived from the health and mental health spheres where the use of multiple disciplines helps facilitate optimum outcomes for patients and clients. The Law Commission of Ontario has also noted the lessons that can be learned from the health care sector in resolving complex family law issues. Multidisciplinary practice in healthcare has developed over the last 40 years and it has been determined that the best outcomes are achieved where the disciplines, both health related and non-health related, can be coordinated, where each input is informed by others and where the outcome is as concise and inclusive as possible. (22)
Indeed, Portnoy advocates for a team approach because of the holistic value it adds to the settlement of family law issues, including the "monetary, custodial, psychological, and emotional components" of divorce. (23) In response to the Law Commission of Ontario's Interim Report's recommendation for a multidisciplinary approach to family law cases, the Ontario Collaborative Law Federation (OCLF) explained,
We agree that the resources for families (entry points) should not be tied to the court system and in particular parties should not have to start litigation to avail themselves of these resources. It is interesting to note that your interim report supports the need for families to be able to access mental health (family) professionals and neutral financial professionals as well as lawyers. This inter-disciplinary team approach is unique to the collaborative process--Collaborative professionals work together, not at cross purposes, and keep each other informed.... Family law clients often need assistance with emotional and/or financial issues. Providing clients with the particular expertise they need helps expedite the time required to address their legal issues. (24)
To be sure, some of the early criticisms of CL surrounded the inability of lawyers alone to venture into emotional and financial forums without the requisite training. (25) The use of a team model can provide expertise to help parties cope with the difficulties inherent in resolving complex family disputes. As Macfarlane notes,
In the family area, family clients can benefit from the combined expertise of lawyers, therapists, child and family counsellors, child welfare specialists, and financial planners. In each case, the added value for clients who can afford a range of integrated services is that they are able to build comprehensive, long-term solutions to planning for uncertainties, crises, or conflicts instead of purchasing piecemeal advice, which may overlook opportunities for creative solutions, or which may ultimately conflict or collide with advice from other professional consultants. (26)
The way in which the combined expertise is utilized varies in CL. The remainder of this section will discuss the variety of team members that can be employed in CL and the various methods in which they can participate as members of a team.
1. Team Members
Team members from a variety of fields can be engaged in the CL process. The most commonly used team members are lawyers, financial specialists, and mental health practitioners. Lawyers are the only required team members in a CL file. Because of their ever-presence in the process, lawyers in CL must step up to the plate and become particularly adept at dispute resolution. Macfarlane explains that effective negotiators,
[H]ave a sense not only of when to be accommodating but also of when to be tough in order to protect their clients' interests, working incrementally to create trust and enhanced solutions. They understand and develop norms of reciprocity with the other side, beginning with establishing comfort and rapport. This process requires good interpersonal and communication skills, including the ability to put the other side at ease, demonstrate respect and perhaps even empathy, and, most challengingly, create a shared sense of trust. (27)
All of these characteristics are necessary for lawyers to work as a team--a team with their clients, their colleagues, and their colleague's clients.
Part of the lawyer's role in CL centres on a reputation for collaboration and teamwork. Family law practice generally has an institutional structure that allows lawyers to build and maintain reputations for either cooperation or non-cooperation. (28) Defining an area of practice such as CL signals cooperation to other lawyers and makes the decision of who to retain even easier for clients wishing for a cooperative lawyer.
CL lawyers will encounter each other again and again on files, because of the sheer size of the practice. Gilson and Mnookin propose that, if two parties negotiate against each other repeatedly, they build reputations, which serve as signals as to the type of negotiator they are. (29) In the world of CL, lawyers mostly know each other and negotiate together repeatedly. In so doing, they build reputations, which serve to signal their cooperative strategy to their counterpart. (30) This reputation is critical and lawyers would not want to risk its demise. In the normal course of dealings, CL lawyers are retained by word-of-mouth referral, often by the other party's lawyer. One experience with an uncooperative lawyer can mean the end of that lawyer s CL career. This is not a risk many would be willing to take. Reputation is key. CL lawyers are under considerable pressure from the need to retain a collaborative reputation, such that it constrains and shapes their behaviour. Their strategy can be trusted as a cooperative one.
The legal culture of CL and its practice groups is based on cooperation. CL lawyers in particular geographic areas come to know each other well, making team practice easier; social gatherings and informal meetings are often held among CL practice groups to ensure a close-knit community. Because of the relationship shared by many CL lawyers, they can cooperate in negotiations with a high degree of confidence that such cooperation will be reciprocated. Through cooperation, rich and thorough agreements can be crafted to best suit the needs of clients.
If required to better serve clients, lawyers can bring in team members from different vocational backgrounds to assist them. Mental health professionals, for example, are often helpful to address emotional challenges faced by clients. As explained by the Law Commission of Ontario,
The emotional consequences of family breakdown are often a significant impediment to the resolution of the matter. Frequently, the hurt and anger become a driver of hostility and escalation of the legal matter. Family law matters can be characterized by irrational decision-making and inflexibility. When these consequences are not adequately dealt with, it can create great difficulty in legal cases. Lawyers are not trained to deal with the emotional consequences of marital breakdown and being required to act for someone who is trying to deal with the emotional fall out without assistance can be taxing for counsel. (31)
Mental health professionals in the CL process can meet with clients both outside the meetings and within meetings to help address emotional issues and to develop parenting plans.
The Law Commission of Ontario's research also documents a significant need for therapy or social work when it comes to children. (32) The Voices from a Broken Family Justice System: Sharing Consultations Results report states,
According to some consultation participants, these considerations are even more important when children are involved. They mentioned that parenting is a long term responsibility and sharing that responsibility after a separation is a challenge especially for parents who did not share care-giving activities during the relationship. Parents do not have a choice but to have at least minimal interaction with their children and with each other after they separate. Counsellors and social workers have skills to help people understand their parenting role and transition from parenting together to parenting separately. In high conflict cases, social workers can also act as parenting coordinators, which means they can help parents develop parenting plans as well as mediate and arbitrate disputes that arise in the application of this parenting plan.... In short, consultation participants believed that coordinating social and legal services was an important consideration for family justice reform. (33)
Indeed, the child specialist is an example of a mental health practitioner often used in CL. A child specialist can be vital in assisting parents to understand their children's needs and inform their choices and decisions throughout the CL process. (34) While the views of mental health professionals are certainly helpful, it is important to recognize the existence of a critical literature on assessments. (35) The mental health professionals own social values, biases, and ideologies will play into their recommendations at the CL negotiating table. Thus, despite their stated neutrality, complete lack of bias is an impossibility.
In addition to lawyers and mental health professionals, financial experts such as accountants or business valuators can also be of critical importance in a CL process. They can assess a variety of options, give projections as to future earnings, and help provide financial literacy to a party that is not well-versed in financial matters. Economic decisions can be difficult and coming to a negotiated agreement can require a sophisticated understanding of financial matters that is beyond the knowledge and experience of clients. Financial experts can be of critical importance in such cases.
There is no set composition of team members that is utilized across the board. Different geographical communities have different norms, as will be discussed in a subsequent section and in the results of this research. Each case should be examined at the outset to determine the appropriate team composition. Additionally, as the negotiations progress, it may become apparent that supplementary or alternative experts may benefit the process and should be added at that point. Although experts are employed in traditional family law or mediation, rarely are such experts retained jointly to provide neutral advice. The neutrality of experts in CL is of central importance as it removes the divisiveness automatically created with competing partisan experts. As stated above, this neutrality cannot be absolute, as personal beliefs undoubtedly play some role in advice given.
Jointly retained experts, be they experts in the financial or familial realm, can gather all the requisite information from both sides. They can then synthesize and summarize information in a manner that is useful to educate and help the parties down the road to resolution. In addition to the benefits in terms of divisiveness, joint experts are less costly than individually retained experts.
2. Team Models
Borrowing again from mental health literature, four different team models have been adopted in CL. The difference between these four models lies in the decision of whether and how to include different professionals. The different models are: unidisciplinary, multidisciplinary, interdisciplinary, and transdisciplinary. The team model in CL has adopted each of these models, often varying between different practice groups and local norms.
The original conception of CL, which is still utilized in many cases and many practice groups, is the unidisciplinary team model. Unidisciplinary teams are comprised of professionals from a single background. All professionals share the same vocation, training, and education, and function in the same role within the group. In CL, this model features as its core members two lawyers and their respective clients.
While this model may look like many non-CL cases, it is the conception of the four-way meeting as a team process that is vastly different in CL. Lawyers view each other in an entirely different light when they approach a case as a team. In addition, most meetings take place in the four-way composition, rather than negotiations happening without the clients present. Lawyers may meet with their individual clients before or after four-way meetings, but the two lawyers rarely meet or discuss the case outside the process.
In a study by the IACP, 43% of 933 reported cases used a unidisciplinary model. (36) Indeed, while called "unidisciplinary", even these teams represent more than one professional background as clients are integral parts of the team and bring their own unique experience, both professional and personal, to the negotiating table. Unidisciplinary teams, while more effective in the CL process than traditional settlement, do not benefit from the exposure to experts from different disciplines that are truly unique and beneficial in CL.
A multidisciplinary team differs from a unidisciplinary team in that it is composed of members from more than one profession. Greater breadth of service can thus be offered. A multidisciplinary approach, also known as a "referral model", involves referring clients to experts as needed. In a multidisciplinary CL model, clients meet with mental health or financial professionals independently. The results of such meetings are then brought to the collaborative process through written or verbal conveyance to either lawyers, clients, or both. In this way, the professionals inform the CL process from a distance and each professional does his or her own piece with little or no awareness of the work of those from other disciplines.
This model is certainly more comprehensive than the unidisciplinary model, offering clients the expertise of professionals other than lawyers. The major disadvantage with this approach is that there can be a lack of communication within and across the disciplines, and teams can lose sight of how each issue is inextricably linked to others.
In interdisciplinary models, experts form part of the core CL process from the start, offering insights throughout the open meetings. An interdisciplinary team is a group of professionals from different disciplines that work independently but interactively in the same setting. Some work may be done separately with the clients, but the team members also come together to achieve a common goal. A definition of an interdisciplinary team is offered in Clark, Spence, and Sheehan:
[A] group of persons who are trained in the use of different tools and concepts, among whom there is an organized division of labor around a common problem, with each member using his own tools, with continuous intercommunication and re-examination of postulates in terms of limitations provided by the work of the other members, and often with group responsibility for the final product. (37)
The respective professionals have a seat at the negotiating table in CL and share their insights and data.
Interdisciplinarity is beneficial to individual cases in the ways described, but it also supports the practice of CL for lawyers. Tesler explains that the more interdisciplinary experience a CL lawyer has, the more easily that lawyer will facilitate conflict resolution even when the team is absent. (38) The added support from the neutral experts allows the lawyers to focus on their specific expertise, as they can feel comfortable that others at the table service the extralegal needs of clients. Lawyers are not, and need not be, mental health or financial experts. The CL system accounts for the need to have these views presented by knowledgeable individuals.
In the transdisciplinary model, much like the interdisciplinary team, all team members have a seat at the negotiating table. Where this model differs, however, is in the appreciation on the part of each professional of the information shared by the others. A deep understanding gleaned from a mutual sharing of all information, the quality of problem solving can be improved. A transdisciplinary model requires each professional to become sufficiently familiar with the concepts and approaches of her colleagues as to blur disciplinary boundaries.
While optimal to resolve complex client conflicts, the transdisciplinary model depends very much on the knowledge and experience of everyone at the table. It is thus not the most practical approach to employ. It is costly, both from a client perspective, and in terms of the amount of additional knowledge and education required of each expert. Of course, there are hybrids of each of these options and many CL lawyers move fluidly between the models. Often the terms "multidisciplinary" and "interdisciplinary" are used synonymously in error. The transdisciplinary model is still the least often utilized model.
There is little debate that the team model, as utilized in CL, is effective to achieve the goals of the CL process. The greatest concern that has been raised, however, is the potential increase in economic burden associated with bringing on additional professionals. In a society where many family law clients are self-represented, even the unidisciplinary team model may be out of reach. This has been a concern for both lawyers and clients. While no cost/benefit study has yet been conducted, anecdotal evidence suggests that the value of the team model outweighs its cost. The empirical part of this research will delve deeper into such an analysis.
b. Mandated Disqualification
Lawyers in CL must be prepared to act on behalf of their clients purely for settlement, as the DA mandates that they disqualify themselves from any future litigation with the parties. Research conducted to date has not answered the question of the utility or necessity of the disqualification provision in CL. However, much demand from the academic and professional community has called for such an inquiry. Macfarlane, for example, states, "[f]urther research should examine how far the DA is a critical enabler of settlement-only lawyering." (39) Lande echoes this statement, noting that virtually no empirical research exists that analyzes how people have used the DA and what the results have been. (40)
Because of the call for research, the debate surrounding disqualification, and the theoretical, ethical, and practical intricacies related to this feature of CL, a detailed consideration of the DA is warranted. This section will outline the nature of and rationale behind disqualification, articulate the mechanics of how it is used, and conclude with a discussion of the debate surrounding disqualification. The purpose of this section is to prepare the reader for the results of this study, which discuss the current utility of the disqualification provision in different practice groups in Canada.
1. Nature of and Rationale for Disqualification
Recall that at the start of a CL case, before any negotiation or disclosure takes place, the participation agreement is signed, which includes, inter alia, a stipulation regarding lawyer disqualification, the DA. The DA requires that the lawyers in a CL case not represent those clients in subsequent adversarial proceedings against each other. The DA also requires that lawyers and clients not threaten litigation during the CL process. Because of the nature of the agreement, if one party decides to withdraw from the CL process and litigate, the other party's lawyer must withdraw as well.
It is important to stress the fervour with which some authors and practitioners discuss disqualification. Some authors explain that disqualification is not simply a requirement, it is the essential requirement without which CL does not exist. (41) What role, then, does the DA serve that makes it so integral? The DA supports many of the characteristics and benefits of CL. Specifically, three rationales for disqualification have been enunciated in the literature: (a) removing disputes from the litigation realm; (b) aligning lawyers' financial interests with client's settlement; and (c) supporting disclosure and an interest-based negotiation environment. (42) While worded differently by different authors, these categories encapsulate the argument for the mandated use of disqualification in CL. Each of these rationales will be explored in order to understand what the DA seeks to accomplish. It is only in understanding these objectives that one can reflect on the utility and practicality of the DA.
The first reason for the perceived necessity of lawyer disqualification is that it removes disputes from the litigation realm. While the parties still have the ability to litigate after an unsuccessful CL negotiation, the lawyers do not have this option. For the lawyers, the case is removed from the litigious sphere. The law, although still present, takes a back seat. Even in a conventional settlement, adjudication remains a compelling presence whether it occurs in the end or not. Marc Galanter explains that legal negotiation has shifted to a mobilization of the court process, a phenomenon he terms "litigotiation". (43) This view of negotiation, as particularly fuelled by the litigation system, impacts to a large extent the perceived need for disqualification in CL. When litigation is entirely removed from the picture, negotiations may be conducted differently. Disqualification maintains the negotiation environment as one that does not involve courts. This avoids the risk of negotiation turning into litigotiation. Other dispute resolution mechanisms, such as mediation, have suffered this fate, becoming increasingly evaluative and adversarial. (44) The DA seeks to address the need for this change not to occur for CL. Legal presence in the CL process need not, and should not, turn the process into an adversarial litigation or arbitration-like process.
By remaining outside the litigation system, negotiations are transformed for both lawyers and clients. Cochran explains,
[CL] changes the focus of lawyers and clients during negotiation from preparing for trial to developing the best settlement terms for all concerned. It identifies a fair resolution of the dispute as the objective of both lawyers and both clients. This substantive aspiration, coupled with [CL]'s procedural change--requiring both lawyers to withdraw from representation if the case moves to litigation--harness the energies of both parties and both clients. (45)
As Cochran suggests, the CL process harnesses energy toward settlement, rather than trial and creates incentive for parties to work together. Proponents of CL point to the DA as the impetus for this focus and incentive, which may be non-existent once claims are filed in court. Goodpaster explains that the filing of a claim changes a dispute "into an adversarial contest the judicial system can resolve. The litigation process formally 'legalizes' the dispute, framing it in terms of legal concepts, proofs, and argumentation the judicial system can process." (46) By abandoning the need to file claims, CL seeks to avoid legalizing the dispute in such a way. The DA is intended to create, in the CL process, a focus on settlement that is not seen in conventional cases.
In addition to removing disputes from the adversarial system, disqualification beneficially aligns lawyers' financial interests with clients' settlement interests, thereby enhancing the commitment of all participants. The potential for lawyer disqualification encourages lawyers to negotiate with no ulterior motive inconsistent with settlement and encourages clients to pursue negotiation, even when such pursuit seems futile. Encouragement of this sort is required since, as Coyne explains, "we live in a society in which both the lawyer's real incentives and the client's expectations frequently cut against settlement, particularly early settlement." (47) Without inducement, client and lawyer interests naturally diverge.
Lawyers, paid an hourly rate, benefit more financially from protracted discoveries and litigation than from early settlement. (48) An elongated process ending in either trial or settlement on the courthouse steps provides lawyers with the greatest financial gain. This interest in prolonging the dispute resolution is generally not shared by clients. Although clients, in anger, sometimes look to adjudication to resolve their problems, it is most productive to settle as quickly as possible. Early settlement usually saves money and avoids the emotional toll of litigation and the discovery that accompanies it. The disparity between the lawyer's financial interest, which operates against early settlement, and the client's financial and emotional interest to settle promptly is resolved, in part, by the operation of the DA. The DA removes the incentive for lawyers to litigate or hold out for settlement on the courthouse steps as neither of these are possible alternatives. Settle or lose the client.
Aligning the interests of the parties and lawyers commits everyone at the table to settlement, and disqualification allows everyone to assume that commitment is shared. CL is uniquely settlement focused because of the operation and saliency of the DA. James Lawrence describes the commitment available in CL in a memorable way: "Comparing the collaborative lawyer's commitment to the settlement process to that of the litigator is like comparing the pig's commitment to his farmer's breakfast to that of the chicken, who survives to lay another egg." (49) The CL client's commitment is similarly robust because of the cost associated with retaining new counsel. As stated by Peppet, " [i]n order to signal credibly a commitment to collaboration, both lawyer and client must lose something if they fail to collaborate." (50) The DA creates this mutual loss because, upon the breakdown of negotiations, the client loses--as she must expend the cost to find, hire, and bring up to speed new counsel--and lawyers lose the fees they could expect if negotiations continued. As explained by Wiegers and Keet, "[t]he underlying behavioural assumption is that increasing the costs of defection will reduce the temptation to become adversarial or to otherwise take advantage of the other side." (51) The bilateral commitment, created by aligning lawyer and client interests, is intended to allow the process and the lawyer-client relationship to thrive.
In ensuring commitment to a negotiated settlement and providing safety in disclosure, the DA also aims to maintain an interest-based negotiation environment. Distributive bargaining is the predominant negotiation style that underlies the adversarial paradigm, (52) while interest-based negotiation dominates the collaborative framework. Proponents of CL articulate that disqualification encourages interest-based negotiation. For example, Cochran states,
[CL's] withdrawal provision reinforces interest-based negotiation. The most effective advocates in any negotiation seek to develop settlement proposals that meet the needs of the opposing party. Successful negotiation requires a lawyer to step back from her client and consider the whole situation, envisioning all of the futures that could emerge from the conflict. (53)
Knowing that court is not a fathomable option, hence, allows parties and lawyers to envision possibilities in this way and create the best resolution for all involved.
Crafting resolution based on interests necessitates sharing information to ascertain the interests of all stakeholders. This approach is different from the distributive "winner takes all" method, in which information is tightly concealed and interests are not necessarily considered. (54) Interests can only be gleaned by sharing relevant information, but sharing information can risk exploitation by the other side. Mnookin, Peppet, and Tulumello explain,
How can you create value while minimizing the risks of exploitation in the distributive aspects of a negotiation? The challenge of problem-solving negotiation is to acknowledge and manage this tension.... The goal is to design processes for negotiation that allow value creation to occur, when possible, while minimizing the risks of exploitation. (55)
The CL process, through the DA, seeks to minimize exploitation in this way by creating a safe environment where clients and lawyers can feel free to divulge information. Voegele, Wray, and Ousky suggest that the DA, in creating a safe feeling, makes it less likely for parties to withhold their best proposals and critical facts because it rewards candor, openness, and cooperation. (56) In CL, lawyers need not save information that may be used strategically at trial, were a trial needed. Once lawyers disqualify themselves from representing clients in litigation, they are free to reveal information that would otherwise be concealed. Deceptive tactics and withholding of information is often used in adversarial negotiations in order to protect clients, but these tactics also hinder the creative interest-based negotiations integral in CL. (57) Carrie Menkel-Meadow describes the "culture of adversarialism", which has "an emphasis on argument, debate, threats, hidden information, deception, lies, persuasion, declarations, and toughness." (58) The DA comes with the benefit of abandoning this culture, creating a safe information-sharing environment completely separate from litigation.
Interest-based negotiation requires some degree of perspective and the ability to walk proverbially in someone else's shoes. Lawrence suggests that,
[The DA] forces the client to take a more positive approach to the possibility that the other side has a rational, legitimate interest in a mutual gains solution. As a result, both sides are able to see the process as a mutual gains experience, because they are working together, not independently, to find a solution. (59)
The safety and security offered by the DA allows for such introspection and perspective not often available in conventional legal negotiation. It is recognized, however, that parties may require a certain pre-existing ability to be introspective and empathetic. The DA is meant to support these propensities.
A commitment to negotiate with an open, interest-based strategy is important in CL, but incentive is often required to ensure cooperation. As stated by Gilson and Mnookin, "if the payoff structure establishes cooperation as the most desirable strategy and supportive institutional structures exist, lawyers may be able to damp conflict, reduce transaction costs, and facilitate dispute resolution." (60) The DA, as it is employed in CL, goes beyond making cooperation the most desirable strategy and indeed ensures that it is the only employable strategy. It locks negotiators into an interest-based approach and alerts the other side to the cooperative strategy.
Peppet describes the dilemma faced by most negotiators:
A negotiator must try to determine the "type" of her counterpart--is the counterpart an honest, collaborative type or a more hard-bargaining, deceptive type? The counterpart, meanwhile, may be sending off misleading signals about his type. He may present himself as a collaborative, honest type in order to mask that he actually plans to deceive for personal gain. (61)
The pressure to defect from cooperation is simply too great in an environment where it is unclear what strategy the opponent will take. This rationale explains the frequency of a competitive approach and the corresponding infrequency of truly interest-based negotiation. The push to negotiate competitively remains strong, despite an overwhelming acceptance that cooperative strategies result in better overall outcomes in situations of long-term relationships. Lawyers engage in competitive tactics to protect their clients from the potential defection from the other side. One study, conducted by Heumann and Hyman, found that although the majority of lawyers studied wanted to engage in a collaborative, honest, open manner, they employed hard-bargaining tactics instead. (62) Fear of being taken advantage of is too great when acting as a representative negotiator.
Lawyers have noted the difficulties they face in attempting to remain interest-based and cooperative as adversarial norms pervade the profession. (63) Macfarlane explains that there is an intrinsic bias in litigation against cooperative problem-solving. (64) Herein lies the critical purpose of the DA for lawyers: disqualification gives counsel on both sides sufficient incentive to remain in the cooperative framework and acts as a signal of cooperation. Disqualification serves as a reminder of the commitment to remain in an interest-based cooperative framework. Negotiators can feel safe using a cooperative strategy in CL because they know that the other side will either match their approach or the process will end.
2. The Debate about Disqualification
Although the DA is an integral piece of the CL puzzle, it is the aspect most criticized and scrutinized. Lawyer disqualification is problematic. Lande notes the DA paradox: "the feature that CL practitioners believe to be indispensable may actually conflict with ethical norms and harm some clients." (65) The ethical debates surrounding the viability of CL and whether it can fit within the existent ethical regimes, while concerning, have somewhat been abandoned or at least have failed to materialize. (66) Nevertheless, these issues merit consideration in this study.
Despite the validation of CL as an ethical practice by various ethics opinions and a formal opinion issued by the American Bar Association (ABA), there remain ethical issues with the DA in the public and professional consciousness that cannot be ignored. (67) As Fairman states, "[c]ollaborative law's glass ceiling is legal ethics"; (68) in fact, the DA is the glass with which the ceiling is built. The predominant areas of concern are issues of informed consent; the risk of coerced settlement; the question of to whom duties are owed and the nature of those duties; and the problem with the ability to discharge your opponent's counsel and your own client. This section will review these major ethical issues as they have been discussed in the academic literature.
First are issues of informed consent. In utilizing a DA, counsel must be certain that they are clear about its ramifications. As articulated by Spain,
Limiting the scope of representation undertaken obligates a collaborative lawyer to take extra care and be very explicit, both in all discussions with the client prior to formally entering a lawyer-client relationship as well as in any written documents such as the retainer agreement and engagement letter, by noting the extent of the representation that will be undertaken on the client's behalf and any limitations on the scope, objectives, and means of their engagement. (69)
Critics of the DA state that clients may misunderstand the meaning and impact of disqualification and how it changes the obligation of the lawyer vis-a-vis her client. Ignorance and misunderstanding of the effect of the DA makes it very difficult to get sufficient informed consent for clients to sign the DA. Clients may not believe that the circumstances that lead to disqualification will happen to them, or may not appreciate the financial and psychological ramifications of lawyer withdrawal. Additionally, lawyers may not be capable of meaningfully or effectively communicating the risks of limited representation. Part of the reason for this possible inability lies in the different estimates of riskiness exhibited by experts (here the lawyers) and laypeople (the clients). Empirical studies have noted that experts tend to view the world as less risky than laypeople. (70) Moreover, experts tend to base a risk assessment on quantitative measures such as probability estimates, while laypeople tend to base risk assessment on qualitative variables such as the nature of the harm. (71) Indeed, as will be reported in the results section of this study, lawyer participants in this research did not view the DA to be of much significance, particularly because withdrawal happens so rarely. This seems to be a typical quantitative expert analysis. Would clients feel the same through a qualitative lens ? Although this study does not examine this issue further, it is certainly one that remains open to scrutiny and future research.
Although these are surely issues faced by CL because of the operation of the DA, Abney notes that it cannot be said that clients in a litigation file always fully comprehend the circumstances surrounding the litigation process and all that it entails. (72) She states, "[considering the amount of information given to clients by litigation lawyers, collaborative lawyers are more than meeting the requirement of obtaining [informed consent]". (73) Perhaps the threshold is or should be higher when embarking on a process outside the confines and controls of the litigation system.
The Law Society of Upper Canada's Rules of Professional Conduct are helpful in explaining the nature of informed consent when providing legal services under a limited scope retainer, such as CL. Therein is stated:
3.2-1A Before providing legal services under a limited scope retainer, a lawyer shall advise the client honestly and candidly about the nature, extent and scope of the services that the lawyer can provide, and, where appropriate, whether the services can be provided within the financial means of the client.
3.2-1A. 1 When providing legal services under a limited scope retainer, a lawyer shall confirm the services in writing and give the client a copy of the written document when practicable to do so. (74)
Nova Scotia's Barristers' Society Code of Professional Conduct also provides helpful commentary in Rule 3.2-1 A, stating,
Before undertaking a limited scope retainer the lawyer must advise the client about the nature, extent and scope of the services that the lawyer can provide and must confirm in writing to the client as soon as practicable what services will be provided. (75)
CL lawyers, if they are to abide by their duties of informed consent, must be cognizant of the increased standard applied to limited retainers.
Supposing lawyers sufficiently explain the effects of the DA and that clients appreciate the risks to be undertaken, a second potential ethical danger arises. Once a realization of the implications of disqualification is achieved, there is a heightened risk of coerced settlement from the temporal and financial consequences of the DA. Such consequences apply both to lawyers and clients. Hence, coercion can manifest as both external pressure to settle by lawyers and internal pressure on clients to settle to avoid additional burden. Because CL lawyers may not represent their clients in trial, their sole interest is in seeing that their clients settle. Coercion to force settlement is thus a potential risk to be considered.
Coerced settlement is certainly not exclusive to CL and remains an issue in traditional settlement. For this reason, the ABA created a document entitled "Ethical Guidelines in Settlement Negotiations", which is helpful in understanding the lawyers role in encouraging settlement. Therein, the following is provided:
The lawyer's role in connection with settlement negotiations is one of advisor to and agent of the client. The lawyer should adhere to that relationship even when the lawyers judgment or experience leads the lawyer to believe that the lawyer more fully appreciates the wisdom of a proposed course of action than the client does. While a lawyer can and often should vigorously advise the client of the lawyer's views respecting proposed settlement strategies and terms, that advice should not override or intrude into the client's ultimate decisionmaking authority. Lawyers should be particularly sensitive to the risk that the clients practical dependency on the lawyer may give the lawyer immense power to influence or overcome the client's will respecting a proposed settlement. A lawyer also should not threaten to take actions that may harm the client's interests to induce the clients assent to the lawyer's position respecting a proposed settlement. Efforts to persuade should be pursued with attention to ensuring that ultimate decisionmaking power remains with the client. (76)
Merely reminding clients of the DA treads dangerously into the territory of "threaten[ing] to take actions that may harm the clients interests". (77) All litigation has a corresponding pressure to settle, but the coercive impact of the DA creates an unbridled risk. Lande states that the DA has the potential to invite abuse, creating "incentives for lawyers to pressure their clients to settle inappropriately and leave clients without an effective advocate to promote their interests and protect them from settlement pressure." (78) The notion of lawyers pushing their clients to settle when litigation may, in fact, be in their best interest is concerning.
Even if not pressed by counsel, the coercion is ever-present as clients place on themselves significant pressure to settle. Because of the significant financial burden and added time required to hire new counsel if the CL process fails, parties may agree to settlement terms that would otherwise be considered unacceptable. Should disqualification be necessary, significant barriers are created. Clients must forfeit the money paid to the CL lawyers, expend significant costs in retaining new counsel, and incur the added time and corresponding expense of acquainting the new lawyer with the case. Such expenditure creates coercion that can result in two problematic circumstances: clients may be led to continue to negotiate even when it is no longer in their best interest, or settlement may be forced when it would be in the client's best interest to litigate. Neither of these options is within the purview of what CL seeks to offer. Lawyers must remain aware of this risk and converse with their clients regularly to avoid coerced settlement. Discussions around settlement options and the reasons why the client may want to accept an offer should be held to ensure the client is sure about the ramifications of entering into a particular settlement. In addition, settlement terms should be explicitly spelled out in the agreement, to prove, if necessary, that settlement is voluntary.
A third concern with the Da is that the agreement effectively permits an opposing party to force the discharge of another party's counsel. CL clients are in a unique position of power, since withdrawing from the CL process means that both parties must retain new counsel. This reciprocation effectively allows one party to fire the other party's lawyer. Manipulative clients can use this ability to remove an opponent's counsel strategically, at a critical time of negotiation. One party's ability to fire another's lawyer can mean that party's financial ruin. "Where an abusive party bargains in bad faith or does not fully disclose, the [DA] will operate to penalize the innocent spouse through the loss of his or her counsel." (79) This potential can unfairly prejudice a client who is in an inferior bargaining or financial position.
Smith and Nelson, both CL practitioners, note that this potential has not yet come to fruition, having never heard of such a situation occurring. (80) Bad faith, however, is a possibility. Tesler notes, " [i]f a party is misusing the collaborative process by not participating in good faith.... the bad faith will become apparent to that party's lawyer fairly soon as well as to all other participants, because there is nowhere to hide in collaborative negotiations." (81) It is certainly the case that manipulative clients, no matter the process or protocol, could find ways in which to exert their power in a calculating way. The DA, however, may make such manipulation simpler and thus more likely to occur.
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|Title Annotation:||I. Introduction through III. The Team Approach and Mandated Disqualification, p. 669-697|
|Author:||Simmons, Martha E.|
|Publication:||University of British Columbia Law Review|
|Date:||Aug 1, 2016|
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