Collaborative law has firmly established itself in the family law arena, where parties (and attorneys) are often willing to commit in advance to do everything they can to resolve divorce cases out of court. Not so much on the civil side, where the whole idea appears antithetical to traditional litigators. There have been attempts in the past to make civil litigation more, well . . . civil, but the codes that were created in some jurisdictions to encourage more gentlemanly (or ladylike) conduct never seem to get at the root of the problem. The root of the problem lies in the nature of the adversarial system itself, and its tendency to encourage adversarial behavior.
More recently, however, it seems that an increasing number of civil litigators may be starting to experiment with ways of resolving contested civil cases with little or no reliance on the court, or at least with trying to reduce the cost and acrimony associated with discovery, motion practice, and other nasty features of civil litigation. Some call this movement “planned early negotiation.” Others call it “integrative law.” In some ways the idea seems a throwback to a bygone era (which may never have existed) in which attorneys maintained more trusting relationships with opposing counsel, and attempted to resolve disputes in a reasonable way. A more collaborative approach also seems to flow naturally into mediation, as opposed to the way mediation usually arises in hotly contested cases, as a temporary truce called in the middle of a war.
Since the majority of cases are going to be resolved by negotiated agreement, why start a conflict resolution process by filing a lawsuit, and then preparing for a trial that in most cases is never going to happen? Wouldn’t it make more sense to steer the case toward a negotiated resolution from the outset? I have been shifting my own approach to litigation in this direction: trying to keep clients out of court altogether if possible, trying to resolve problems in litigation with less court assistance, and trying to steer cases toward a negotiated resolution. I still feel the need, however, to keep the hammer of litigation in my back pocket. Lawsuits are also a legitimate form of “alternative” dispute resolution. Even if most cases should be settled, some should still go to trial. And even in the vast majority of cases resolved by negotiated agreement, the threat of litigation was still probably a factor contributing to those resolutions.
What I understand from others who have tried to advance the discipline of civil collaborative is that most civil trial lawyers feel the same way I do. Thus, one of the chief stumbling blocks to developing civil collaborative practice has been the resistance of civil trial lawyers to sign participation agreements of the type recommended in family law cases, in which the attorneys who work on resolving the case agree in advance that if they fail to achieve an agreement, they will not be the attorneys representing the clients in any court case. Are such agreements essential to the practice of collaborative law? Or can we develop a species of more cooperative dispute resolution in the civil area that does not require the use of participation agreements? If such a movement is going to succeed, I think we might need a better name for it than any that have been proposed so far. Collaboration just sounds too foreign to what clients expect from civil litigators, and what we expect from ourselves. How about constructive dispute resolution?
I think it’s possible to achieve better results within litigation by attempting to resolve issues in cases without motion practice, and by relating to opposing counsel with a view toward reaching settlement, rather that conducting settlement discussions only as a time out from unrelenting hostility. It’s even possible to resolve disputes without filing a complaint at all. The difficulty arises when opposing counsel has not signed on to the same program. And that is where the collaborative family lawyers are probably a step ahead of the civil litigators who are attempting to practice in a more cooperative way.