Mediation’s Kissing Cousin: Collaborative Law

In Practical Insights from an Empirical Study of Cooperative Lawyers in Wisconsin John Lande outlines the results of a 2008 survey and offers recommendations to policy leaders for improving the practice of cooperative lawyering.

“Not surprisingly, many lawyers are reluctant to use a cooperative approach routinely. Dispute resolution experts have suggested ways to change the game, but these are usually limited to ad hoc efforts “swimming upstream” in a culture of adversarial negotiation.

Many cases are now mediated, which has helped parties and lawyers to settle some cases. Court programs and policies mandating mediation have also helped lawyers avoid responsibility for initiating the process, thus addressing concerns about appearing weak.

Unfortunately, mediation of legal cases often takes place well after suits have been filed—sometimes only shortly before trial—and so it is often infused with adversary culture. The Collaborative Law4 movement has developed a process to reverse the traditional presumption of adversarial legal representation…

A small, new “Cooperative” movement has started to grow in the shadow of the Collaborative movement. Cooperative Practice is similar to Collaborative Practice in that both are designed to promote early and productive negotiation intended to benefit both parties. Conceptually, the key distinction is that Cooperative Practice does not include a disqualification agreement.”

Definitions of Collaborative Law and Cooperative Practice

                       

Geoff Sharp

Geoff Sharp is a Commercial Mediator from Wellington, New Zealand. Geoff works in the Asia Pacific region, including New Zealand, Malaysia, Thailand and Pacific Islands. He is a mediator resolving business problems. He is a fellow of the International Academy of Mediators and mediates complex and hotly debated litigation covering… MORE >