Collaborative Law (presentation notes excerpts)

Collaborative Law – Getting Back to Business
(excerpts from presentation notes)

All of us are involved in business. Businesses are in business to generate profits. When you are in court, unless you are a lawyer, you are not generating income.

Collaborative law gets you away from the courts and back to business.

A simple definition of Collaborative Law is “settlement by agreement.” That means no court intervention. The dispute is resolved between the parties, and relationships are maintained. Both parties have trained lawyers to help them develop solutions, and the parties cooperate. And, all the information discussed in reaching the settlement is kept private.

To understand Collaborative Law, we have to understand conflict. What causes conflicts and why do some conflicts become disputes? Differences? What about Basic Human Nature? Within a business, differences, and our imperfection, leads to conflicts.

Given that there will be conflict, is it all bad? Absolutely not! Within your organizations, you don’t have innovation or improvement without going through the process of conflict. However, conflict may lead to disputes, and disputes lead to breakdown within organizations. Left to fester, disputes lead to destruction.

But, our society has designed ways of coping with disputes. In an organization where there is a culture of conciliation, individuals may overlook the offense, talk to each other, involve a coach to assist with the reconciliation, or involve an internally trained mediator. If it is not resolved internally, the parties may seek assistance using an external mediator or arbitration. Beyond those alternatives, they start on the path toward the courthouse.

Collaborative Law fills the void between one-on-one discussions and involvement of an outside referee.

The most important reason to go through the collaborative process is to maintain relationships. You may say, I don’t care about one customer or one supplier, there are plenty more where they came from. However, your other customers and suppliers, and potential customers and suppliers are watching to see how you handle yourself. Relationships extend beyond the immediate conflict and are preserved through the process.


What is the Collaborative Process?

First, it is voluntary. Both parties must agree to go through the process.
Next, both parties need to find trained attorneys; not litigators who want to run up bills, but lawyers who are interested in avoiding conflict, managing conflict, and assisting the parties in resolving disputes. The best Collaborative attorneys for business disputes are those who have years of business experience. You’ll want to find someone who has been in the business world and who has resolved conflicts within organizations and between organizations. The benefit to you is that you have an advocate for your business, not just a hired gun.

Next, there is a face to face meeting in which an agreement is signed. The agreement sets forth the process. A schedule of meetings is prepared, and agenda is set for the next meeting. Typically, meetings are only two hours long and everyone has homework for the next meeting. The benefit is that the parties control the schedule.

What happens at the meetings? The issues are recorded and the parties have an opportunity to express themselves. Just as important, the parties have the opportunity to listen to the other side – directly rather than through the attorneys. The attorneys assist the parties and are not the mouth pieces for the parties. The benefit is direct participation without filtering.

During the process, there will no doubt arise a need for more information. Documents and other information may be necessary. Unlike in litigation, all parties cooperate in compiling the information. The data is shared in the meetings. The information gathering is informal. The benefit is that the information is gathered much more quickly and at a fraction of the normal discovery expense.

It may become necessary to hire some experts. In a business dispute, perhaps an outside accountant is needed, or a surveyor, or a chemist. In this process, the parties jointly agree upon and hire the expert. If the experts can’t address an issue, that portion of the discussion may be handed over to a mediator or arbitrator – but the parties still maintain control. The benefit is control of the experts.

After all the relevant facts are gathered, the parties work on various solutions to the problem. Options are listed and discussed. Only then do the parties come to a solution; not necessarily their original “position”, but rather a solution that addresses their “interests.” The benefit is that the Parties are free to brainstorm and dig into underlying interests.

Finally, we get to the results:
An agreement is reached without going to court.
An ongoing relationship may be maintained with the other party.
Costs are typically less than using the litigation path.
Private matters are kept private.
And satisfaction is achieved through control of the process.


Let’s take a look at the differences between Collaborative Law and Litigation.

First, the process of litigation is completely adversarial. There is no “problem solving” and very little agreement.

Second, typically, you will become involved in an emotional roller coaster where you begin to question your own interests because there will be an attempt to intimidate. You’ll wonder whatever happened to the original problem and how, and when, the problem will be solved. You’ll be speaking to and through your attorney who will attempt to control you and your statements. Eventually, you’ll say to yourself, “Why don’t I just talk to the other guy? I don’t need all the filtering.”

In litigation, you’ll be inundated with discovery requests and hours if not days will be spent in depositions. If you think a phone call to your attorney is expensive, just wait until you see the bills for trial preparation. The attorneys will ask for everything remotely related to the case, and you’ll have to pay for lawyers and employees to gather the information. Then try to plan your business trips and annual vacation around the court docket.

Do you think the newspapers print all the news that’s fit to print? No way; they will print anything to damage your business. Nearly everything in the case will be part of the public record.

And where do you suppose your attorney is during the months and years leading up to trial? He’s trying to settle the case (95% of all cases settle before trial). But he’s also preparing his case for trial. You never know which 5% of the disputes will actually make it to trial.

If you thought attorneys are expensive, try finding a cheap expert. Why should the parties hire two experts to take opposite positions at the trial? Why not agree on one expert to do the research and render an opinion that both parties may use?

Do you really want to give control of the future of your business to a jury? Wouldn’t it make more sense to maintain control of the situation?

What if someone misunderstands the other side or a mistake is made? In the Collaborative Process, there is a requirement for the correction of errors.

Full disclosure in litigation? Forget it. If you don’t ask, you don’t get. In Collaboration, the parties base their settlement on all the facts that are relevant; and remember, the information is confidential.

And finally, have you ever been up against a wealthier opponent? In collaboration, you have a say in how much is spent.

Given all the benefits, which approach would you prefer?

If you walk the maze to the courthouse, your attorney will be working on Pleadings, Discovery, Depositions, Motions, Hearings, and Orders. If you choose to work the issue on a collaborative basis, your attorney will be with you at the table, advocating for your business, and working on creative solutions.

The problems with the judicial system are not new nor are they unknown. Abe Lincoln warned law students about it. A former Chief Justice had reservations about the system. And, local attorneys are recognizing the faults with the litigation process.

As a business person, what can you do to address conflicts before they become disputes? It is up to you. You must create the right environment. A workplace in which conciliation is a way of life is a great beginning. Do your people approach each other when there is a conflict? Do you have trained conflict coaches among your population? Is your HR trained to recognize conflict and address it?

After that, you’ll need the right processes. If you do have a conflict, intervene early. Make sure you have trained legal counsel. Does your legal counsel have broad experience in business? Does your attorney understand the mediation process? Has your attorney been trained in Collaborative Law? Does your attorney connect with people at all levels both inside and outside your organization? Does your attorney have language in your contracts in support of this process?

Remember, conflict resolution is not just a process, it is all about relationships.


It may be legal, but is it right?