An interesting conversation occurred between a Collaborative Practitioner and a Litigator after the Collaborative Law Section meeting at the local Bar Association. The Litigator made a number of accusations and assertions concerning the use of the Collaborative Process:
1) “The practice of Collaborative Law attracts lawyers who can’t find their way around the courthouse and who don’t know how to litigate.”
2) “If you look at the attorneys beginning to practice Collaborative Law, you’ll find they are generally young or have a business background and have not been Litigators.”
3) “As a Litigator, I can win more cases and obtain bigger settlements than the Collaborative Practitioners can achieve.”
4) “The Collaborative Practitioners are running up bills and using all the assets so there is nothing left when they finally turn the matter over to the Litigator.”
Sadly, this seasoned attorney stated that he attended the meeting just to see if he could network with Collaborative Law Practitioners for referrals of those cases where the parties opt out of the Collaborative Process. He was not interested in understanding the process or learning enough to be able to offer the Collaborative Process as an alternative to Litigation to his clients.
A couple of us gently explained the future of the practice of law (see “The New Lawyer: How Settlement Is Transforming the Practice of Law” by Julie Macfarlane, for a study of the progression of the profession) and the normal development of a society from lawlessness through a period of “law” to collaboration.
Lawyers have been hired to be the warriors for people in conflict so they no longer have to physically fight or kill each other over a dispute. Although they are sometimes considered to be counselors, many lawyers have forgotten this role or view it only as part of the preparation for “war” in the courtroom. The New Lawyer is a “conflict management advocate” for his client and avoids the infliction of emotional and financial distress whenever possible.
In response to the assertions, we stated:
1) Collaborative Lawyers are no more or less competent than those making a living in the courthouse. We have merely chosen to put the interests of the clients ahead of our personal interests. With greater than 90% all cases being settled before trial, does it make sense to conduct trial preparation rather than expending that energy in resolving the dispute in a timely manner? Litigators enjoy the fight and the spotlight – nothing wrong with that. Collaborative Practitioners enjoy problem resolution, maintaining on-going relationships between parties, and allowing the parties to work on a solution that may not be available through the courts.
2) Many attorneys beginning to practice Collaborative Law are generally young or have a business background and have not been Litigators. However, many entering the practice are middle aged or older, and may have been practicing law all their lives. Certainly, those under 35 have grown up with the web, instant access to information, sharing of ideas, working in team environments, and quickly moving beyond conflicts. Why would it surprise anyone that young law school graduates are disillusioned with the current judicial system’s method of dispute resolution? Those attorneys who have been in management positions outside of a law firm no doubt are better positioned to assist their business clients in addressing the issues and developing solutions. Is it surprising that they find the structure of the Collaborative Process appealing? Finally, of the members of the Section at the meeting, the vast majority have been Litigators – many for more than two or three decades. Perhaps they have now found something they could not provide to their clients in all those years of doing battle.
3) As a Litigator, you are concerned about winning and winning big. In the Collaborative Process, the focus shifts from the attorneys in the spotlight to the clients working on resolving their differences by expressing their interests rather than their positions. Why wouldn’t the client want to be involved in the resolution process and keep the dispute out of the public eye? Should the use of the legal system be about the lawyer or about the client?
4) The Collaborative Practitioners use assets to resolve disputes. If the parties had been able to resolve the issues without assistance, they would have done so and avoided all expenses. However, most Collaborative cases are resolved faster and at less expense (both financially and emotionally) than cases taken through the courts. If a party opts out of the process, additional assets will need to be used to go through the litigation process, but that is a known risk; just as an appeal from a trial is a risk in the litigation process. Doesn’t it make more sense to try to resolve the dispute through an agreed upon process with a controlled outcome where the parties may maintain complete privacy? The Collaborative Process, done correctly, does take time and hard work and professional fees will add up; but consider the alternative.
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