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Q&A: Real Collaboration accommodation in ValkenburgAn interview with Robert Rack, chief circuit mediator for the United States Court of Appeals for the Sixth Circuit. He also co-founded both the non-profit Cincinnati Center for Mediation of Disputes and the Collaborative Law Center in Cincinnati. Mr. Rack was interviewed by Steven Keeva. Key points: Forswearing litigation; freedom from litigation's tactical strictures; lawyer as counselor and problem solver, not hired gun. Near unanimity in reports of enjoyment among lawyers who have tried it. Businesses are eager for it.
Q: What is collaborative law? Rack: It is a structured form of legal representation for settlement purposes only. In appropriate cases, parties and their counsel sign a detailed participation agreement in which they contract:
The participation agreement sets out the rules and mechanisms for this practice, including how to confidentially share relevant information, for protecting clients' legal interests while the collaborative law process proceeds, and how to deal with discovery needs. The twist and the teeth to this program is that if a party changes his or her mind and wants to litigate, all the collaborative lawyers must resign from the case and the parties must hire new, litigation counsel. The collaborative lawyers will assist in transferring the case to the new lawyers, but neither the collaborative lawyers nor their firms can be paid for any time spent after a brief transition period. Q: How do lawyers generally react to this description of the process? What are their concerns? Rack: One of the first questions lawyers ask is whether this practice is ethical. They wonder if a lawyer can forswear litigation and still "zealously represent" her client. This has been researched several times and the answer pretty clearly is yes. As long as the client is thoroughly informed of these limits and their possible consequences, including the possible added costs of bringing new counsel up to speed in the event of impasse, there is no reason the representation cannot be circumscribed this way. The bigger problem for some lawyers, especially litigators, is a psychological one. Many describe feeling naked, disarmed, handicapped by having to "leave their guns at the door," or missing this litigation "arrow from their quiver." This is a perfectly understandable feeling. Frankly, we don't expect litigators to be the first to adopt this form of practice, unless their clients demand it. All lawyers have been schooled in the adversarial tradition. Trial lawyers have made it their stock in trade. Collaboration is a different way of approaching a dispute. It views a dispute as a problem to be solved rather than a case to be won. It calls for a significantly different set of skills, which is why collaborative lawyers here receive two full days of training, mostly in interest-based negotiation and collaborative communication styles. The transition from adversarial litigator to collaborative problem solver is not easy for everyone. Q: Does anything else seem to get stuck in their craws? Rack: Probably the most common question asked by litigators (and almost exclusively by litigators!) is "why do I have to forswear litigation and resign if it doesn't settle? After all, I negotiate settlements for my clients in the great majority of cases. Very often, it's the threat of litigation that brings recalcitrant parties to the bargaining table." The answer is twofold: First, most cases do get settled, but usually not before a good deal of time and money has been spent preparing the case for litigation. Think about how much discovery is conducted for purely defensive purposes, in anticipation of trial. Most of those tactical depositions and interrogatories are irrelevant if there is no battle to be won or lost. Forswearing litigation shifts and limits the discovery interests to the information the negotiators think will help them appraise the dispute for settlement purposes. Joint experts, when experts are necessary, will probably be the most useful. The requirement for counsel to withdraw means the lawyers negotiating the settlement will never have any role in litigating the case, so there is no reason for them to even begin building the case for trial. Rather, their role and remuneration is absolutely limited to helping the client negotiate a practical, acceptable solution to their problem. The second part of the reason goes to the dynamics of the negotiation. When litigation is not an option, the adversarial techniques of intimidation and ambush become useless and even counterproductive. Storming out of a negotiation only means you have to call the other side back to try again. Everyone involved has a direct interest in maintaining the goodwill and cooperation of everyone else. If the solution doesn't work for everyone, it doesn't work at all so everyone is in the problem solving boat together. Thus, collaboration is not just encouraged, it is required. Q: Will lawyers really choose to give up the option of litigation? Rack: Not every lawyer will, of course, and not every client will, and not every case will be appropriate for it. However, in situations where parties have a significant interest in an ongoing relationship, or in which a good, mutually agreeable resolution is more important than a legal victory, collaborative law offers some real advantages. Just for openers, by offering to approach a problem collaboratively, one party can unmistakably signal to another an unequivocal commitment to work with that other party, not against them. The lawyer making the initial collaborative law approach gives notice that he or she will never be involved in any litigation over the matter. That can be a very helpful signal in a delicate situation where a client has a problem with a current employer, for instance, or where parents have a problem with their child's school, or where a corporation has a problem with an important trading partner. If the second lawyer thinks about such an offer even for a minute, she'll realize that she can deal in good faith with this lawyer who cannot hurt her client, or she can stonewall, and face the litigator who comes next. Good, full service lawyers will want to be able to offer their clients this option, and informed consumers of legal services might just start demanding it. Q: Clearly, collaborative law has proven to be highly effective in the family law context. Is it being used elsewhere? Rack: Yes, I'm happy to tell you we've just settled our first collaborative employment law case and at least two more are underway. Progress in other arenas has been slower, however, in part because of the need to train enough lawyers--a critical mass in any given practice area for clients to be able to each hire collaborative lawyers in a case. We have about 30 employment lawyers trained now so they are up and at least walking. It's also clear that businesses are eager for this. In fact, we had an interesting experience when we first started shopping the idea around a few years ago to focus groups of lawyers in different areas of practice. We heard from the partners in the big litigation firms that they would be quite reluctant to take a collaborative case for a big corporate client for fear that an impasse would force them to send that good client down the street to another firm. Taking that risk was nearly unthinkable. When we met with the corporation lawyers, however, they were enthusiastic. When we asked what they thought their retained law firms would think about it, they reminded us that they did the hiring and would expect those firms to provide collaborative law representation when they asked for it. Several of those in house corporation lawyers have taken the training and are outspoken in their interest and this has brought lawyers from those same big firms to the collaborative law training. Q: I'm deeply interested in lawyers' subjective experience of law practice in terms of how satisfying and fulfilling it is. What do you hear in that regard from lawyers who practice collaborative law? Rack: You know that many lawyers are even more critical than the public of the evasive and cutthroat aspects of law practice. Many are weary of scorched earth approaches to legal disputes that have them spending most of their time and talent preparing for trials that never take place. They don't believe they are serving the real or long-term interests of their clients or of society. As professionals, we don't like feeling like we are part of the problem rather than part of the solution. The question everyone keeps asking is what can be done about it, how do we break into this spiral that makes law practice less and less personally rewarding for so many and so expensive for the public. Collaborative law offers real alternative to lawyers and to clients. It lets the client put its money where its mouth is when it says it doesn't want a fight, just a fair resolution. And it lets a lawyer be a counselor, not a hired gun. It lets lawyers participate as advocates for their clients with the exclusive goal of creatively solving problems, something lawyers do well when freed from all of the tactical strictures of litigation. It sounds almost too good to be true, doesn't it? About a year ago we surveyed the lawyers in the family law group after they had completed about 40 cases. They were overwhelming enthusiastic, several expressed the goal/fantasy that they would ultimately practice only collaborative cases. Cases are being resolved with much less animosity, in about a fourth the time and with far less cost. We hear echoes of Chip Rose, whose idea collaborative law is thought originally to be, as our lawyers almost universally report enjoying their work again. For more information on collaborative law, try these websites: The Collaborative Law Center: Collaborative Family Law: Lawyers Weekly U.S.A. Coalition for Collaborative Divorce:
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