. . . From Gini Nelson’s Blog Engaging Conflicts
This is an abstract from his 2005 article: The Promise and Perils of Collaborative Law:
Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts have provided helpful suggestions for ‘changing the game,’ though these ideas are usually limited to case-by-case efforts within a culture of adversarial negotiation. Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. CL reverses the traditional presumption that negotiators will use adversarial negotiation. CL parties and lawyers sign a participation agreement establishing the rules for the process. Under these agreements, lawyers and parties (negotiators) focus exclusively on negotiation, disclosing all relevant information and using an interest-based approach. Negotiators work primarily in four-way meetings in which everyone is expected to participate actively. A ‘disqualification agreement’ clause in the participation agreement provides that CL lawyers represent parties only in negotiation and are disqualified from representing them in litigation. (Although CL lawyers cannot litigate a CL case, CL parties can withdraw and hire other lawyers to litigate.) Professor Julie Macfarlane’s landmark study found that CL negotiators generally did not engage in adversarial negotiation and when they did so, they usually had more information and a more constructive spirit than in traditional negotiation. She found that CL parties generally benefited from improved communication and were satisfied with the process and their lawyers.
This article identifies four potential perils of CL. First, CL clients may have unrealistic expectations about the lawyers’ role, the time and expense involved, and implications of the disqualification agreement. Second, the CL process may result in excessive pressure to settle. Third, CL practitioners may violate rules of professional conduct. Fourth, CL practitioners may develop a quasi-religious orthodoxy that inhibits innovation and discourages clients from exercising legitimate process choices.
The full article is here attached.
Over the past few years, the concept of blending mediation with arbitration has attracted attention in the international arbitration community. Med-Arb is a hybrid dispute resolution mechanism; generally, parties first...By Gizem Alper
How do you see conflict? For most of us, we experience conflict as a heavy burden and an energy drain. In fact, as mediators, we often see the weight of...By Deborah Isenhour, Marilyn Shannon
It isn't enough to talk about peace; one must believe in it. And it isn't enough to believe in it; one must work at it." -- Eleanor Roosevelt Argentina mourns...By Rene Llapur