70 The Alabama Lawyer 434 (2009). Saying "No" to Court? An Introduction to the Collaborative-Law Process.

• Author: BY JUDGE TOMMY BRYAN

The Alabama Lawyer

2009.

70 The Alabama Lawyer 434 (2009).

Saying "No" to Court? An Introduction to the Collaborative-Law Process

Saying "No" to Court? An Introduction to the Collaborative-Law ProcessBY JUDGE TOMMY BRYANIn 1990, Stuart Webb, a Minnesota attorney suffering from "family law burnout,"(fn1) decided he would no longer litigate his cases.(fn2) Consequently, Webb created a new type of alternative dispute resolution now commonly known as "collaborative law."(fn3) Since its inception in 1990, the practice of collaborative law has spread quickly throughout the United States and into Canada, Australia and Western Europe.(fn4) Recently, a commentator stated that collaborative law "is one of the most important developments in the American legal system in the past 25 years."(fn5) As of 2008, there were more than 150 collaborative-law practice groups in the United States.(fn6) However, collaborative law appears to be a fairly novel concept in Alabama.

Collaborative law has been used almost exclusively in divorces and other family-law cases.(fn7) In the typical collaborative process, two clients and their attorneys enter into an agreement, often referred to as a "four-way agreement," governing the manner in which the participants will seek to reach a settlment.(fn8) The essential element in the collaborative process is a disqualification clause providing that, if negotiations fail, the attorneys will be barred from participating in any ensuing litigation between the disputants.(fn9) In addition to the disqualification clause, the typical agreement contains provisions in which the attorneys and their clients agree to employ respectful, good-faith bargaining and to provide early, complete and voluntary discovery.(fn10) As outlined in the agreement, the parties use interest-based negotiations(fn11) in an attempt to reach mutually agreeable solutions.(fn12) That is, the participants seek as much as possible to work together rather than as adversaries.

Four-way negotiations among the attorneys and clients typically take place face-to-face. It is common for the meetings to be held alternately in each attorney's office, with the visiting attorney compiling a memorandum summarizing each meeting.(fn13) Communications taking place during the meetings and documents prepared for the collaborative process are confidential and are inadmissible in court if the dispute is later litigated.(fn14) The attorneys confer with each other and their clients in between meetings, and the attorneys jointly create an agenda for each meeting. The parties may jointly retain expert consultants, and those consultants, like the attorneys, will be disqualified from involvement in litigation should the collaborative process fail.(fn15) If negotiations reach an impasse, attorneys may use mediation, neutral experts or case evaluation to break the deadlock.(fn16) Approximately 90 percent of the cases that go through the collaborative process result in a complete settlement agreement.(fn17) The parties submit the settlement agreement to the court for approval as a final judgment.(fn18)

The disqualification clause encourages attorneys to strive for settlement because they will be unable to collect additional fees if the dispute goes to court.(fn19) Therefore, the risk of failure in the collaborative process is distributed to the attorney in a manner unique to the process.(fn20) Of course, in litigation-based representation, an attorney will typically work on a case at least until there is a judgment. In collaborative law, an attorney works on a case only as long as the case stays out of court.(fn21) Moreover, the disqualification clause provides an incentive for the clients to settle because if the dispute goes to court, the clients must hire new attorneys and will lose the benefit of the time and money already invested in employing the original attorneys.(fn22)

One researcher who studied "collaborative family law" discussed the cooperative nature of the process:

The strong ideological commitment to cooperative negotiation within the [collaborative-family-law] model has a significant impact on the bargaining environment. This impact is strengthened by the "club" culture of [collaborative-family-law] groups, as well as by their sense of...