Find Mediators Near You:

The ABA Approves the Oxymoron of Collaborative Litigation

The ABA Ethics Committee has given the green light to collaborative law agreements — considered unethical in Colorado — so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:

“When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”

The oxymoron?  Litigation is definitionally a “contentious tactic” pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.

Why is litigation a “contentious” tactic?  Because its entire purpose is to overcome the will of another.  It is not an invitation to dinner to discuss the dispute in an attempt to find common ground.  Does litigation  sometimes lead to collaboration?  Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence — all of which can serve to bring the parties to the bargaining table.

I am all in favor of collaborative processes for the resolution of disputes.  It’s what I do for a living for heaven’s sake.  But I am also an advocate for the preservation of meaning in the English language.  Collaborative litigation is a contradiction in terms.  And if you want your client’s informed consent to anything, it would be best to remember that the “litigation” part of collaboration remains the iron fist inside the velvet glove.

                        author

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

Featured Members

ad
View all

Read these next

Category

Marriage Closure Therapy: Tips for Family Mediators

  Marriage Closure Therapy is slowly gaining attention and recognition.  Having an understanding of this process will help family mediators in their practice and in making appropriate referrals. Tips for mediators...

By Susan Bulfinch
Category

What’s Your Generation?

PGP Mediation Blog by Phyllis G. Pollack The second issue of ADR Times Perspectives (Vol. 1, No. 2, Nov. 2011, hit my e-mail inbox the other day. Having enjoyed the...

By Phyllis Pollack
Category

Families Belong Together

From Joy Rosenthal's Blog.On June 30, I joined about 30,000 others in Foley Square in Manhattan to protest the detention of the over 2,300 children who have been ripped away...

By Joy Rosenthal
×