Find Mediators Near You:

Collaborative and Cooperative Law — Promise and Perils

. . . 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.

Attachments to this Article

                        author

John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >

Featured Mediators

ad
View all

Read these next

Category

How To Screw Up a Mediation in our Brave New World

FUBAR Zoom Mediation:* A Field Guide for Mediators * “Fouled” Up Beyond All Recognition Almost all cases that are not resolved by dispositive motion will likely be mediated. Indeed, many...

By Christopher Nolland
Category

Nobody Does It Better: Diane Levin Interview

“I actually have a bunch of heroes. They’re not the big iconic names in the field… Instead my heroes are the people in the trenches–the individuals I know who are...

By Gini Nelson
Category

AudioBlog: Becoming Conflict Competent: Your New Year’s Plan

Texas Conflict Coach Audio Blog by Pattie PorterIn today’s program, we are going to help you develop a plan for “Becoming Conflict Competent” in the new year. So, if you...

By Patricia Porter
×