Resolving Conflicts Through Collaborative Law
Dispute Resolution Services: Elder Mediation, Collaborative Law, Divorce Mediation
Resolving Conflicts Through Collaborative Law
Collaborative law is a new model of conflict resolution in which both parties to the dispute retain separate, specially-trained lawyers whose only job is to help them settle the dispute. If the lawyers do not succeed in helping the clients resolve the problem, the lawyers can never again represent either client against the other. All participants agree to work together respectfully, honestly, and in good faith to try to find mutually-satisfying solutions to the legitimate needs of both parties. No one may go to court, or even threaten to do so, and if that should occur, the collaborative law process terminates and both lawyers are disqualified from any further involvement in the case. Lawyers hired for a collaborative law representation can never, under any circumstances, go to court for the clients who retained them. Collaborative law has been used most frequently by divorcing couples as a way to reach agreement on all of the issues in their divorce, without resorting to filing a lawsuit in court. More recently, it is being used in an increasing number of practice areas.
The practice of collaborative law involves a “paradigm shift” from traditional lawyering. Instead of being dedicated to getting the largest recovery for their own client, no matter the human or financial cost, collaborative lawyers are dedicated to helping their clients achieve their highest intentions for themselves.
Collaborative lawyers do not act as a hired guns. They do not take advantage of mistakes inadvertently made by the other side. Nor do they threaten, or insult, or focus on the negative, either in their own clients or on the other side. They expect and encourage the highest good-faith problem-solving behavior from their own clients and themselves, and they stake their own professional integrity on delivering that.
Collaborative lawyers trust one another. They still owe a primary allegiance and duty to their own clients, within all mandates of professional responsibility, but they know that the only way they can serve the true best interests of their clients is to behave with, and demand, the highest integrity from themselves, their clients, and the other participants in the collaborative process.
Collaborative law offers a greater potential for creative problem-solving than does either mediation or litigation: collaborative law puts two lawyers in the same room pulling in the same direction to solve the same list of problems. Lawyers excel at solving problems, but in conventional litigation they pull in opposite directions. No matter how good a lawyer I am for my own client, I cannot succeed as a collaborative lawyer unless I also can find solutions to the other party’s problems that my client finds satisfactory. This is the special characteristic of collaborative law that is found in no other dispute resolution process.
In order to understand collaborative law, it is helpful to compare collaborative law and mediation. In mediation, there is one “neutral” who helps the disputing parties try to settle their case. The mediator cannot give either party legal advice, and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced, and if the mediator tries to deal with the problem, the mediator is often seen by one side or the other as biased, whether or not that is so. If the mediator does not find a way to deal with the problem, the mediation can break down, or the agreement that results can be unfair. If there are attorneys for the parties at all, they may not be present at the negotiation and their advice may come too late to be helpful.
Collaborative law was designed to deal more effectively with these problems, while maintaining the same absolute commitment to settlement as the sole agenda. Each side has quality legal advice and advocacy built in at all times during the process. Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates. It is the job of the lawyers to work with their own clients if the clients are being unreasonable, to ensure that the process stays positive and productive.
Collaborative law is not the best choice for every client. However, it is well worth considering if some or all of these statements are true:
- The parties want a civilized, respectful resolution of the issues.
- The parties wish to keep open the possibility of maintaining future relationship with the other party down the road.
- The parties want to avoid the financial and emotional cost associated with litigated dispute-resolution.
- The parties have family in common to whom they wish to remain connected.
- The parties have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.
- The parties value privacy in their personal affairs and do not want details of their conflict to be available in the public court record.
- The parties value control and autonomous decisionmaking and do not want to hand over decisions about the conflict to a stranger (i.e., a judge).
- The parties recognize the restricted range of outcomes and “rough justice” generally available in the public court system, and want a more creative and individualized range of choices available for resolving their issues.
- The parties place as much or more value on the relationships that will exist in their restructured family situation as they place on obtaining the maximum possible amount of money for themselves.
- The parties understand that conflict resolution with integrity involves achieving not only their own goals but finding a way to achieve the reasonable goals of the other person.
The collaborative law process allows for creative, respectful collective problem-solving to happen. It is quicker, less costly, more individualized, far less stressful and, overall, far more satisfying in its results than what occurs in most conventional settlement negotiations in a typical litigation.
Collaborative law demands unique skills from the lawyers involved–skills in guiding negotiations and in managing conflict. These are not the skills a conventional lawyer learns.
Collaborative lawyers are committed not to misuse the collaborative law process for delay, or to get an unfair edge in negotiations. For these reasons, it is recommended that an experienced collaborative lawyer be engaged.
Mr. Vanarelli is trained in collaborative law and is a member of the North Jersey Collaborative Law Group and the International Academy of Collaborative Professionals.
Vanarelli Is Guest On Internet Radio Show!
Donald Vanarelli was recently a guest on “Focus on Seniors”, a new internet radio talk show airing on the WS Radio (WSRadio.com) network. The 60 minute-talk show deals with the caring and health of seniors and features two experts per show in the field of aging. In a 30 minute segment, Mr. Vanarelli was interviewed about the topic of Elder Mediation. “Focus on Seniors” airs every other Tuesday at 5:00PM EST.
Click here to listen to the interview. >
For additional information regarding Resolving Conflicts Through Collaborative Law, call us at 908-232-7400 or click here to contact us online.