Collaborative law: attorneys who mediate and negotiate, not litigate

negotiating through collaborative lawAs family lawyer Diana Skaggs recently alerted readers, the nation’s leading divorce lawyers are finding more cases settled before trial. This trend in favor of negotiation over litigation in divorce may in part be attributable to the growing popularity of alternatives such as mediation and collaborative law which emphasize mutual gains, joint problem solving, and better communication between disputants.

In “Lawyers who mediate, not litigate: Collaborative law doesn’t have to be an oxymoron“, a column in today’s Christian Science Monitor, Boston-based collaborative lawyer David Hoffman traces the roots of collaborative law, describes its benefits, and assesses its risks. Its benefits are two-fold: for the clients themselves, who can achieve creative resolutions, as well as for the legal profession itself, since Hoffman sees collaborative law as a way to regain ebbing public confidence. Hoffman does so in the context of the ethics opinion recently issued by the American Bar Association upholding the use of collaborative law agreements by lawyers–an opinion which put to rest concerns among collaborative lawyers raised by a controversial advisory opinion by the Colorado Bar Association which declared collaborative law unethical per se earlier this year.

Although collaborative law — and other nonadversarial processes like mediation — may not be for everyone, many divorcing couples are electing these as a way to avoid the costs — monetary and otherwise — that litigation can produce.

One response to “Collaborative law: attorneys who mediate and negotiate, not litigate

  1. I hope all of the folks who may need family law services or are called upon to refer folks in those straits will look carefully at the product of Collaborative Practice. The heart of these ethical pronouncements is that the CLIENT, no one else, has the power to decide HOW to use a lawyer. Pretty simple. Too bad the Colorado opinion-writers forgot it.So, when looking to obtain all of the legal paperwork necessary to bifurcate one household estate into two, the partners should speak frankly with each other before they go to the legal marketplace.Do they care about each other, even though they are splitting up?Do they share children whom they love and devote financial resources toward?Do they have a mix of assets that have various tax and deferment obligations?Have they planned for the future as a couple and need to re-visit those plans?These and thousands more are the factors which mitigate in favor of Collaboration. In addition to providing mechanisms for valuing all of the above-listed interests, Collaboration honors the most basic human right–privacy. Couples need not tender their children to the court in order to obtain a divorce settlement. The couple has chosen a team to assist them, and the team is bound by strict confidentiality.While it is important to note that Collaboration is not for everyone–namely, it is not for couples who don’t see eye to eye about long-term concern for the other’s well-being. Those folks will still need Court, and Collaboration can clear much of the docket that delays prompt justice for those previously denied.In today’s culture, there are more and more opportunities to take legal matters “offline,” and choose the private dispute methods and perspectives to be applied by their lawyers and other allied professionals (mental health and financial professionals are essential to the Collaborative Team). I urge everyone to investigate Collaborative Practice share the information with the people you love.Kimberly Schavey, J.D., M.B.A., ClergypersonAlbuquerque, New MexicoCollaborative Divorce Lawyer since 2001B