Collaborative law: A new use for lawyers

For disputes that go down the court route, judges generally encourage the use of alternative dispute resolution (ADR), which mostly takes the form of mediation, interparty negotiations or early neutral evaluation.

But can the construction industry adopt any ADR processes used in other parts of the law? One particularly active area is family disputes, which uses a technique called collaborative law. This was created by a family lawyer from Minnesota in 1990, but has been adopted in family disputes across the US and Europe. The idea behind it is much the same as other forms of ADR - that is, to avoid lengthy, unpredictable and potentially expensive court proceedings that will irreparably damage business and other relationships at considerable expense to all concerned.

Collaborative law aims to foster mutual respect and openness between the parties. So how does it work in practice?

• Both sides retain lawyers who are trained in collaborative law to assist them. Although the lawyers act for their respective clients, and provide them with legal advice and guidance during the process, the idea is that the lawyers and the parties work together in a dignified and honest way without threatening to go to court.

What distinguishes the process from, for example, mediation is that, at the outset, both parties and their lawyers sign a contract that disqualifies the lawyers from representing the parties in the event that the process breaks down and legal proceedings are issued; in that event, the parties would have to instruct new lawyers. The result is that the lawyers’ interests are aligned with those of the parties - to obtain a swift resolution within the process. Any breakdown of relations would not only mean not achieving their client’s aims, but an end to
their fees.

• All issues are discussed at four-way meetings that are set up and timetabled at the outset. The parties agree to give full and frank disclosure of all documents and information during this process.
• At those four-way meetings, the clients play as much of a role as the lawyers, and each lawyer is as likely to offer some guidance to the other party as they are to their own client. The result is a negotiating environment that is far more likely to produce the creative thinking that is often necessary to come up with solutions for tough issues.
• Any experts are appointed jointly.
• In order to keep costs to a minimum, as well as to ensure that all negotiations take place face to face, correspondence (both between the parties and between them and their legal advisers) is kept to a minimum.

The advantages in pursuing the collaborative process seem clear. Both parties are genuinely committed to finding a solution to the dispute in an honest and dignified way. If discussions break down, each of the lawyers and law firms representing the parties cannot continue acting and must resign.

The obvious potential additional cost of instructing fresh sets of lawyers is a natural disincentive to walk away, both for the clients and their lawyers.

The lawyers’ interests are aligned with those of the parties. Any breakdown of relations would mean an end to their fees

It has an advantage over mediation in that the parties are and remain in the driving seat during the whole process, whereas mediation is led by a mediator with the possible result that commercial parties may feel either that events are out of their control, or that the mediator has not fully understood the nuances of the problem.

The parties maintain control over the process and the timetable and take the lead role in negotiations. By doing this, they are able to work out any compromise between themselves. After all, they are in the best position to understand their interests.

Having started off as an alternative method of resolving family disputes, collaborative law is being used increasingly in the US as an alternative to mediation in commercial disputes. Like many things that originate in north America, it is perhaps only a matter of time before it is applied here as well.

Joe Griffiths is a partner in Manches