Collaborative Law

COLLABORATIVE LAW: A NEW APPROACH

by Cynthia M. Lifson

Aristotle famously observed that those who live outside the city are either beasts or gods. Since most of us do not qualify as either a beast or a god, we grow up learning to live as social creatures to get along reasonably with other human beings to ensure stability in the communities. To accomplish this task, we need a mechanism for smoothing out the inevitable differences that we all experience at one time or another in our business or interpersonal relationships. Let's look at how this works.

The fortunate among us may be able to resolve differences with others by doing something as simple as sitting together and hashing it out at the kitchen table. On the other end of the spectrum, there are those who must engage in litigation, a complex and expensive process, which requires interfacing with the often unfriendly and remote judicial system. In court a judge or jury acts as the embodiment of the values of the community to resolve the dispute. In this model along with traditional legal representation, attorneys attempt to negotiate a settlement of the issues and if negotiations fail, a lawsuit begins. Here attorneys are in charge of the discussions. While the attorneys may focus on settling the case, they must also spend time preparing for the possibility of a court room trial. Others have found mediation, where a trained neutral person facilitates the communications between parties who are experiencing differences (generally in the form of conversations), to be effective. In this model, the mediator does not give legal advice and may or may not prepare a settlement agreement that is typically reviewed by the parties' attorneys before it is signed.

The good news is that another mechanism for resolving disputes is now taking root in Maryland, and in particular, is growing in Howard County. This new approach is referred to as collaborative law. While no approach to resolving disputes is applicable to every person or every situation, collaborative law offers many advantages to those who are willing to think creatively and use a nontraditional model to shift resources from working toward winning to working toward settling.

While the collaborative law model is international in scope and addresses all types of disputes in the civil arena, the collaborative law model is most closely associated with family disputes related to divorce, custody, support, and property. But what are the essential features of the collaborative law model, someone might ask? Like mediation, the collaborative law model is distinguished from litigation by employing an interest-based, non-adversarial approach. The parties conduct settlement negotiations with their attorneys by their side, every step of the way. Negotiations take place in a series of face-to-face meetings with both attorneys and parties present. The attorneys act as negotiation coaches, information resources and legal advisors. The parties disclose all important information, negotiate in good faith, and work together to develop a full array of options for settling the case. Unlike mediation, however, there is a significant difference with the collaborative law model.

Fundamental to the understanding of the collaborative law model is the contract entered into by the attorneys and the parties. This contract, usually referred to as the Participation Agreement, provides that if settlement is not reached and a party wishes to go to court, both attorneys must withdraw and neither may represent their client in litigation. The Participation Agreement ensures that the attorneys are fully committed to settlement and their only role in the process is to help the parties arrive at a settlement that satisfies the interests of both.

Attorneys practicing collaborative law are specially trained in interest-based negotiation skills, mediation techniques and the collaborative law process. If other experts are required, such as counselors or accountants, they are jointly retained as part of the collaborative team.

Many benefits flow from the collaborative law approach. Often, parties are able to create customized solutions, more quickly, and at less expense than the traditional court process. In the context of families, the collaborative law approach may improve the ability of family members to communicate effectively, develop an appreciation of each other's perspectives and concerns, improve their ability to parent children, and achieve a dignified closure to their relationship. Lessons learned about effective conflict resolution may carry over to solve future problems that may arise.

As more and more Howard County attorneys become trained in collaborative law, the opportunity to use this approach to legal services will grow. While collaborative law may not suit every person or every situation, for those who require legal assistance, it is sensible to inquire about its applicability to the particular set of circumstances of the case at hand.

Cynthia M. Lifson is an attorney and mediator who focuses her practices on matters related to families. Her main office is in Howard County, and she can be reached at 410/988-4209.

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As published in the Columbia Business Monthly, March 2007, page 18

Cynthia M. Lifson was formerly known as Cynthia L. Golomb and can still be reached at 410/988-4209 or by clicking the contact button below.