Newspaper article The Christian Science Monitor

Lawyers Who Mediate, Not Litigate

Newspaper article The Christian Science Monitor

Lawyers Who Mediate, Not Litigate

Article excerpt

The civilized resolution of conflict in American society recently took a giant step forward with the issuance of an important ethics opinion by the American Bar Association (ABA) upholding the use of "collaborative law" agreements by lawyers.

The concept of collaborative law may seem like an oxymoron to some, but it is a widely used process in which the lawyers and clients agree that the lawyers will participate solely for the purpose of settlement negotiations and that if the case goes to court, the parties will hire new counsel. Collaborative law has been hailed by many lawyers and clients as a godsend, rescuing them from the quagmire of courtroom battle.

Prior to this year, ethics committees in five states (Kentucky, Minnesota, North Carolina, New Jersey, and Pennsylvania) had approved the use of collaborative law agreements. However, in February 2007, the Colorado Bar Association issued a maverick advisory opinion declaring such agreements to be unethical. According to the Colorado opinion, collaborative law agreements put lawyers in the ethically untenable position of having divided loyalties - to represent the client but also to honor the contractual commitment to the other party to withdraw if litigation ensues.

After the Colorado opinion was issued, thousands of lawyers across the United States who have been using the collaborative law process waited uneasily to see which way the regulatory winds would blow in their states.

The ABA Ethics Committee puts these questions largely to rest, with an opinion (#07-447) squarely supporting the use of collaborative law so long as clients are well informed about the process. According to the ABA, the Colorado opinion is simply wrong: if a client chooses to hire a lawyer for a limited purpose (i.e., just negotiation), there are no conflicting duties - the lawyer is committed to serving the client in the negotiation, but not beyond.

Outside the legal profession, these distinctions may seem like so many angels dancing on the head of a pin. But for lawyers, and ultimately for the public, the stakes are high. Confidence in lawyers and our legal system has plummeted in recent years as the cost of courtroom conflict has soared. Collaborative law - along with mediation, arbitration, and other forms of dispute resolution - provides a powerful tool for reducing those costs and regaining the public's trust.

Collaborative law originated in Minnesota in 1990, when a disgruntled family law attorney, Stuart Webb, decided that he had had enough of courtroom brawls and the ensuing family carnage. Along with some like-minded lawyers there, he began taking cases solely for negotiation. This idea spread to San Francisco in the early 1990s and throughout the US, Canada, and the globe over the past 15 years. Tens of thousands of divorces and other conflicts have been resolved using collaborative law. …

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