Fall 2010-#4. Collaborative Law: Effectively Resolving Conflict Without Going to Court.

• Author: by Phyllis Rubenstein, Esq.

Vermont Bar Journal

2010.

Fall 2010-#4.

Collaborative Law: Effectively Resolving Conflict Without Going to Court

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Collaborative Law: Effectively Resolving Conflict Without Going to Courtby Phyllis Rubenstein, Esq.Almost ten years ago, I read an article by Pauline Tesler about an innovative practice called collaborative law, in which parties, represented by collaborative lawyers agree to resolve their disputes without court intervention.(fn1) After eighteen years as a criminal defense lawyer and twelve years as a juvenile and family lawyer, I was intrigued with the idea of this very different approach. To my delight, in November 2002, the Vermont Trial Lawyers Association offered a CLE entitled "Collaborative Law: A Breakthrough in Law Practice." Three seasoned lawyers from Massachusetts offered an inspiring overview of the practice of collaborative law, its profound impact on their professional lives and the significant benefits to clients.(fn2) About thirty attorneys attended, including William van Zyverden, founder of the International Alliance of Holistic Lawyers, Beth Fontana, a lawyer with collaborative law training, and Laurie Levin, a lawyer with mediation training. After the CLE, the four of us continued discussions about fostering the practice of collaborative law in Vermont. By the winter of 2003, the VBA agreed to the creation of the Collaborative Law Committee, now known as the Section of Collaborative Law, and in March 2003, the Collaborative Law Committee presented its first of many CLEs.(fn3)

I represented my first client in a collaborative law divorce in 2003. From 2004 to the present, I have represented clients in over seventy-five family law cases.(fn4) In seventeen of those cases, including the one case from 2003, we used the collaborative law process. Thirteen collaborative law cases were resolved with a Final Stipulation. In one case, the parties decided not to pursue a divorce and in two cases, the process was terminated and the parties hired litigation lawyers. I have one collaborative law case currently pending. The parties in the thirteen cases which have concluded were pleased with the efficient and relatively smooth process, which was civil, respectful and dignified, and with the mutually-satisfactory and fair outcome.(fn5) Absent the threat of litigation and supported by the structure of the collaborative law process, parties were able to move beyond otherwise intractable disputes and reach appropriate resolutions and their lawyers were able to support, counsel, and advise them in creative and productive ways.

Personally, I feel tremendous relief not being required to play the role of warrior or shield for my client and being able to engage in open and transparent communications absent bad faith, threats, and tactics. I also experience great reward in working together with the other party's lawyer to create an environment of trust, honesty, and good faith, to co-facilitate a process where everyone is respected, heard, and acknowledged, and to participate in a process that results in an outcome beneficial to both parties. I am deeply gratified by the collaborative law process; and as my skills have developed, my satisfaction has deepened.

What is Collaborative Law?

Collaborative law is a sophisticated method of dispute resolution created by Minneapolis lawyer, Stuart Webb,(fn6) in which each party is represented by a specially-trained collaborative lawyer for the sole purpose of resolving conflict through negotiation without court intervention. Parties and lawyers participate in client-centered, interest-based problem-solving, rather than the lawyer-centered, adversarial, positional form of traditional bargaining. The parties and lawyers agree that they will not take the dispute to court, that they will exchange all information without the use of formal discovery and that they will hire joint experts, if necessary. If the issues are not resolved by agreement and the parties require a judicial resolution, the lawyers are disqualified and the parties must hire litigation lawyers. The disqualification requirement serves as an incentive for everyone to work creatively towards settlement.

The collaborative law process treats "divorce as a normal, predictable life passage [and] helps many divorcing couples to retain their human decency and self-respect as they move toward separate households and separate lives."(fn7) In the long run, the parties have greater control over a civil process, spend less money on legal and related fees, avoid unnecessary and unproductive acrimony, and reach a satisfactory outcome that focuses on their needs and interests.

Collaborative law is most often used in family law cases, although it is appropriate for all civil matters, especially those where parties may wish to maintain a relationship, such as disputes between landlords and tenants, employers and employees, or members of a small or family-owned business. During the process, litigation is not commenced.(fn8) Once all issues are resolved, the lawyers prepare the necessary paperwork, and in the context of a divorce action, everything is filed with the court for an uncontested divorce without a final hearing.(fn9)

For a collaborative lawyer, two essential aspects of collaborative practice are training and membership in a practice group. The paradigm shift from the traditional litigation model to the collaborative approach takes considerable training. Fortunately, excellent trainings are regularly available in Vermont and...