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Unilateral Collaborative Law
Most lawyers proudly assert that they are collaborative because they always try to settle their cases. Despite an almost universal wish to resolve conflicts, the intent to settle does not create a collaborative case. In collaborative law, litigation is not the last resort - it's never an option. Even the threat of litigation is forbidden. Collaborative lawyers simply refuse to litigate collaborative cases. Thus the sine qua non of a collaborative case is the repudiation of a resort to litigation under any circumstance. This is the paradigm shift that distinguishes a sincerely good intention to avoid litigation from an ironclad commitment to withdraw in the event of litigation.
In 1990 Stu Webb founded collaborative law in the context of domestic relations. His "classical" collaborative, family law model was based on two clients, each represented by counsel. All four then entered into an agreement that compelled counsel to withdraw if litigation ensued. When collaboration led to settlement, the attorneys represented their clients in court, solely seeking judicial approval of their agreement. When collaboration did not lead to settlement, clients had to retain successor counsel, or represent themselves in court.
In 1996 I decided to stop litigating in my family law practice. I had never heard of Stu Webb or collaborative law. When I explained my decision to prospective clients, each was presented with my revised fee contract. In relevant part it read: "The attorney shall represent the client in the least adversarial manner possible, intentionally seeking to avoid litigation. In the event that the matter is contested the attorney shall not represent the client, and the client expressly agrees to discharge the attorney and retain successor counsel to represent him/her in that litigation." Since then, every client I represent signs this fee contract, and initials the underlined text.
The classical, collaborative law model is bilateral. It requires two lawyers and two clients to agree not to litigate. By contrast, the unilateral, collaborative law model requires one lawyer and one client to agree not to litigate. In both models the paradigm shift remains entirely intact.
Contrary to my worst fears, the unilateral, collaborative part of my practice actually grew. To my amazement and delight, most clients were pleased and relieved to renounce litigation. Bilateral and unilateral collaborative models seem equally applicable to any case in which disputants are honestly willing to negotiate a settlement in the absence of legal duress. Neither model is confined by the boundaries of family practice. Hopefully, the unilateral approach will prove especially useful in the areas of business and employment law, which so far seem to be more resistant to the bilateral model than family law.
In both models a lawyer may be collaborative on one case and litigious on another. In both models a lawyer in a firm may be exclusively collaborative while her partners are free to litigate. As long as the paradigm shift defines the limits of legal representation, there is no one "right" way to practice collaboratively.
The strength of collaborative law lies in its insistence on negotiating without an option to litigate. Conversely, there is an inherent vulnerability in waging peace. The ability to abuse the collaborative process for unfair advantage is real. A false posture of seeking settlement can mask an intent to obtain unfair advantage (e.g., "free discovery"). Nevertheless, every non-adversarial intervention confronts similar dangers without significant harm. Over the past three decades mediation clients have faced comparable hazards, and during that time mediation has grown exponentially.
Although there is no greater peril in unilateral than bilateral collaboration, the one-sidedness of the unilateral commitment leads to unique complications. Sometimes the "other side" knows that I won't litigate, and sometimes they do not. Although I will not lie about the limits of my representation, if opposing counsel doesn't ask, I rarely offer the information.
Some situations compel sharing the limits of my representation. For example, if opposing counsel in divorce files a request for discovery, I explain that I will not sign any pleadings as that would constitute a filing an appearance - which in turn would necessitate my needing leave of court to withdraw. An offer to voluntarily produce the information sought is generally accepted in lieu of the formal procedure. Unilateral collaborative law can be practiced under all these circumstances, regardless of the level of trust on the other side, for many reasons.
First, clients are well aware that litigation always remains an option if the need arises. Appreciating this contradiction, many unilateral, collaborative clients take comfort in the knowledge that if their soon-to-be ex-spouse decides to "play dirty," there are plenty of attorneys who will gladly replace their non-litigating lawyer. Ironically, the omnipresence of litigation can lend courage to clients uncertain of the wisdom in risking peace, thus reinforcing the prospect for collaborative settlements.
Second, threats to litigate from opposing counsel can sometimes be assuaged with the assurance that collaboration remains his client's best hope of a negotiated settlement. If that fails, opposing counsel's litigious enthusiasm can also be tempered with reminders that there are legions of equally litigious lawyers who will be pleased to "see him in court." Often these messages are more successfully conveyed spouse-to-spouse rather than lawyer-to-lawyer.
When the spouse of a client in divorce insists on representing himself, another special problem arises in the practice of unilateral, collaborative law. To accommodate these situations I devised the following, pro se affidavit: "I, -------------, husband of ---------, affirm that I intend to represent myself in our non-adversarial, no fault divorce. I acknowledge that Les Wallerstein represents my wife, and that I remain free to retain and/or consult with any attorney of my own choosing at any time. I agree that if I later decide to hire an attorney to represent me in our divorce I shall immediately inform Les Wallerstein. I acknowledge receipt of a duplicate original of this affidavit, signed under the penalties of perjury on (date)."
I only use this affidavit when my client's spouse refuses to hire an attorney. Although it has never been challenged in a court proceeding, I believe this affidavit would be upheld because it constitutes a truly voluntary, knowing and intelligent waiver of counsel.
While the unilateral model exceeded my expectations for success, it hasn't always worked. Sad but true, litigation remains the primary methodology for most dispute resolution in America. Collaborative law rejects litigation without denying its existence. Recognizing the reality of litigation is not equivalent to threatening its use. Risking a negotiated peace does not require repudiating the possibility that the opposing side can compel a legal war. The following three case vignettes illustrate a spectrum of circumstances that have prompted litigation referrals. (While the basic elements in each case are true, significant data has been changed to ensure confidentiality.)
Case #1After 12 years of marriage a psychiatrist decided to divorce his psychologist wife to live with his lover, a woman of considerable financial means. During their marriage the parties agreed that the wife would work less than part-time, to provide primary parenting for their four children. The husband had worked a 2nd, part-time job since the birth of their 2nd child to support that arrangement. Through counsel, husband insisted that wife return to full-time work. This would relieve him of what he felt was onerous child support, and enable him to quit his part-time job. Husband also wanted the marital home sold within a year, so he could afford to buy a house of his own. In this scenario, his "concession" to wife was that she could buy out his interest in the house instead of being forced to sell it. His rationale was that her full-time employment would make this financially feasible. When wife resisted, husband's resolve stiffened. All offers seeking compromise were met with increasing belligerence. Negotiations ended when his attorney filed a complaint for divorce, some six weeks after the process began. During that time neither husband nor his lawyer were informed that I wouldn't litigate.
Case #2After enduring eight years of drunken rages, an emotionally drained wife consulted me about divorce. Her visit was prompted by their twin six-year-olds telling her of their unemployed father's terrifying rampage through the house while she was at work. Over the years her husband had gone through a series of psychotherapists and detoxification programs, but he never managed to stop drinking. When I advised her that the likelihood of success in non-adversarial representation was quite remote, she insisted on taking a chance. I reached out to her husband as collaborative counsel and urged him to hire a lawyer. My letter provided a list of over a dozen collaborative attorneys near him. He never answered me. Instead, he told his wife that they could work everything out without any outside "meddling." Husband simultaneously insisted that he could and would stop drinking - a promise he had made and broken an equal number of times. Unsurprisingly, he refused to hire counsel. With my support and approval, wife gratefully accepted a referral to a lawyer who would institute divorce proceedings.
Case #3After 35 years of growing further apart, a husband retained me in the hope of a non-adversarial divorce. For longer than he could recall, the couple had been living in opposite ends of their house. She was a senior scientist in charge of a genetic research project, and he was a Middle School art teacher. When he warned me that his wife harbored a high degree of antipathy for all lawyers, I assured him that I would be as non-threatening as possible. To relieve his anxiety I emailed him a copy of my proposed letter of introduction to his wife- that he edited before it was sent. That correspondence openly renounced litigation. Soon after receiving it his wife suffered a mental breakdown. She became severely depressed and refused to seek help. Not only was husband unsuccessful in encouraging her to retain counsel, all his efforts to arrange for her care were rebuffed. Soon she withdrew from the world into a corner of one room in her side of their house. Wife was as obviously in need of medical, psychological and legal assistance as she was passively adamant in refusing it all. With great reluctance, and only after weeks of prodding, husband ultimately accepted my recommendation to retain litigation counsel.
Whenever I refer clients to litigation, I direct them to collaborative lawyers who also litigate. Once the referrals are made, I invariably lose touch with my clients. Thus I have virtually no follow-up data. However, in Case #3, I inadvertently met the husband in a restaurant about a year later. He was overly appreciative of my help, including (if not especially) for my referral to litigation counsel. His lawyer filed for divorce and persuaded the court to appoint an attorney and a guardian for his wife. She was briefly hospitalized and subsequently stabilized on medication. He credited litigation counsel with saving her life.
Collaborative attorneys are convinced that the vast majority of interpersonal human conflicts are best resolved by non-adversarial means. Even when it fails, clients can benefit from having left no stone unturned in the search for an uncontested outcome. While it may seem heretical, collaborative practitioners must acknowledge that there are conflicts that cannot be resolved non-adversarially. Amongst the most unpleasant examples are violent spousal and child abuse. Although collaborative law was spawned by the ravages of litigation, it will not replace it. The question is not whether litigation will exist, but what place it will occupy in our jurisprudence.
Our goal is not to eliminate litigation, but to convert it from dominant culture to counterculture. When the legal mainstream is dominated by non-adversarial dispute resolution, litigation will become the "alternative," the exception to a far more humane rule. This is a multi-generational task. Collaborative law is the next step down the long road of that journey.
Collaborative law is in its infancy, an evolving work in progress. It is not monolithic. Having all parties to a dispute and their counsel agree to repudiate the possibility of litigation from the outset may be the best of all possible alternatives. For most collaborative lawyers however, that ideal remains a rarity. Bilateral collaborative law is still a generally unrealized, aspirational goal. In the interim, a unilateral model offers clients and their counsel an alternative way to practice collaboratively. For so long as the commitment to abandon litigation is honored, collaborative law is being practiced.
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