Gini Nelson’s Engaging Conflicts

This is one of Guest Blogger Law Professor John Lande’s posts in his series “Adding Cooperative Practice to the ADR Toolkit”. His Introduction is posted here.

Part One: Introduction

There is a growing interest in adding “Cooperative Practice” to the ADR toolkit. Cooperative Practice is related to – but somewhat different from – mediation and Collaborative Practice. All three processes encourage parties to resolve disputes by negotiating agreement, but they have different ways of doing so.

In mediation, an impartial third party helps parties to negotiate an agreement. In Collaborative Law, at the beginning of a case, lawyers and parties sign a “participation agreement” to negotiate in good faith and disclose all relevant facts. The participation agreement includes a “disqualification” clause which provides that if any party decides to litigate, the Collaborative lawyers are disqualified from representing the parties, who must hire new lawyers if they want representation in litigation. The formal difference between Cooperative Practice and Collaborative Practice is that Cooperative Practice participation agreement does not include the disqualification provision.

Each of these processes has advantages and disadvantages. I do not suggest that Cooperative Practice is necessarily preferable to the others. Rather, I think that some parties may prefer it in some cases – and that it is useful for the dispute resolution field to include this in the “toolkit” of desirable processes. At the end of this series, I will describe how individual practitioners can add Cooperative Practice to the set of services you offer – and how it can be useful for mediators.

Mediation generally is a very good process. Many parties like it because it is managed by an impartial party who may diffuse adversarial tensions when both parties (or none of the parties) are represented by lawyers. It is very flexible and has been used in virtually every kind of dispute. Some people may prefer another process, however, for several reasons. In some situations, the parties may each want lawyers to manage the process and would not feel secure if a mediator is primarily in charge. Mediation may not be appropriate when one party wants to take advantage of a power imbalance and a weaker party does not have a lawyer. Abuse of power may be a particular concern in cases involving serious domestic abuse. In the litigation context, mediation is often used late in the case, after much time, money, and emotion have been spent, so some parties may want a process that focuses on negotiation from the outset.

John’s series will continue next week with “Collaborative Practice And Why Some Parties May Prefer It To Mediation”.