Gini Nelson's Engaging Conflicts

Congratulations to John Lande for receiving the 2007 CPR Award for Outstanding Original Professional Article in the 24th Annual Awards for Outstanding Scholarship in ADR. I posted about John’s article, “Principles for Policymaking About Collaborative Law and Other ADR Processes” here.

From the press release:

New York, NM, January 18, 2008 — The International Institute for Conflict Prevention & Resolution (CPR Institute), a membership-based, nonprofit alliance of global corporations, law firms, scholars, and public institutions dedicated to the principles of conflict prevention and alternative dispute resolution, announced the winners of the 24th Annual CPR Awards Program at a dinner held at New York’s Waldorf-Astoria on Thursday, January 17…

The award for Outstanding Original Professional Article recognizes an article published by academics and other professionals that advance understanding in the field of ADR. The 2007 CPR Award for Outstanding Original Professional Article was awarded to John Lande, J.D., Ph.D., Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri-Columbia Law School, for his work “Principles For Policymaking About Collaborative Law and Other ADR Processes”, Vol. 22:3 Ohio St. J. on D.R. 619 (2007)…

PLEASE NOTE THAT THE CONFERENCE WAS ORIGINALLY SCHEDULED FOR SEPT. 2007, BUT IS BEING RESCHEDULED IN ORDER TO ALLOW FOR SCHEDULING CONFLICTS AND TO ADD THE PROFESSIONAL AND BUSINESS DEVELOPMENT WORKSHOP! MORE INFORMATION COMING SOON! SEE THE PAGE AT THE TOP OF THE BLOG ABOUT THE CONFERENCE FOR THE MOST CURRENT DESCRIPTION.

Read more »

Prof. John Lande has his new article (of the above-title) in the Ohio State Journal on Dispute Resolution (“JDR“), the official law journal of the American Bar Association’s Section on Dispute Resolution and the most cited journal in the field of Alternative Dispute Resolution, available as a .pdf online at his website. It’s a comprehensive and detailed article (almost 90 pages including it footnotes) recommending policymaking principles; outlining a general approach to policymaking; and then applying the principles to proposals for new ethical rules for negotiation, specifically Collaborative Law ethical rule proposals. He recommendations and conclusions include: (1) dispute system design should be the initial and primary approach in analyzing policy options; (2) process pluralism is critical to engender a wide range of available “goals, norms, procedures, results, professional roles, skills, and styles in handling disputes involving legal issues,” to promote an ADR system as a whole rather than to promote one particular ADR process; and (3) legal regulation should be a limited and last resort in developing new ADR policies.

Prof. John Lande continues his insightful work on Collaborative and Cooperative law with his recent article Lessons For Collaborative Lawyers and Other Dispute Resolution Professionals From Colorado Bar Association Ethics Opinion 115, published online at Mediate.com in April, and also posted here at his website together with other articles on this and related topics. Background to this issue is found in this earlier post about the Colorado Ethics Committee’s Opinion finding Collaborative Law per se unethical, and this one overviewing the promises and perils of Collaborative Law.

Here’s an excerpt:

[Ethics Opinion 115] found per se violations of ethical rules when Collaborative Law involves four-way agreements beween lawyers and clients. It also found that similar Cooperative Law agreements do not violate the ethical rules. Readers may wonder what is the difference between Collaborative and Cooperative Law? What can you learn from this opinion and why should you care? This article addresses these questions.

As previously posted in EngagingConflicts here, there is a significant ethical critique of Collaborative Law, and a growing movement for the practice of Cooperative Law. The main issue is Collaborative Law’s requirement of mandatory attorney disqualification if the process is unsuccessful. Cooperative Law is defined in the Colorado Ethics Committee’s Opinion as identical to Collaborative Law, but without the mandatory attorney disqualification agreement.

This is the Conclusion from Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts (Adopted February 24, 2006)(note: date is probably a typo, as this Opinion has just been released):

The Colorado Rules of Professional Conduct prohibit a lawyer from participating in Collaborative Law so long as a contractual obligation exists between the lawyer and the opposing party whereby the lawyer agrees to terminate the representation of the client. Absent such a contractual obligation, a lawyer may participate in the process referred to as Cooperative Law provided that the lawyer complies with all of the Rules of Professional Conduct.

The Opinion lays out the Committee’s analysis, and also provides an extensive discussion of the “myriad potential ethical pitfalls” in a Cooperative Law practice, which include provisions relating to terminating the attorney-client relationship; communications with the client (concerning the applicable range of alternative courses of action in the client’s case); considerations of whether the client is under a disability (particularly if there is a history of domestic abuse in the family law context); and Cooperative Law organizations (as possibly impermissible referral services). These issues are also potentially relevant in jurisdictions where a Collaborative Law practice is not per se unethical.

Colorado does not have a mandatory bar association, and the Committee’s opinion is not per se binding on attorneys. However, it is a powerful statement about the practice of Collaborative (and Cooperative) Law in Colorado, and of the potential issues everywhere.

This is how the Colorado Ethics Committee describes itself (from its website):

The Colorado Bar Association Ethics Committee is a standing committee of the Colorado Bar Association, staffed by approximately 90 Colorado attorneys, existing for the purpose of giving ethics advice to Colorado attorneys. The Committee will answer written requests for ethics advice subject to certain exceptions such as those listed below. The Committee will issue Formal Ethics Opinions concerning topics of general interest. . . .

The Ethics Committee is NOT associated with the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel. Committee Opinions, whether informal written opinions or published formal Ethics Opinions, are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, Attorney Regulation Counsel, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.

The opinion is not yet posted at its website. If you would like a copy, please send an email to gn@gnconflictmanagement.com, with “Opinion” in the subject line, and I’ll send back a copy. BUT SEE UPDATE!

UPDATE: I didn’t know how to upload documents to the blog when I posted this originally, and now I do. Here’s the Ethics Opinion (it will open in .pdf). ethics-opinion-_115-colo-cl.pdf

THE GROWING TREND OF COLLABORATIVE LAW: “Not for all, but a growing trend, and here to stay.”

So I said when I published my first article on collaborative law in the Los Alamos Monitor in July 2002. Indeed, it has continued to grow, and, from it, Cooperative Law, both topics in Engaging Conflicts, with leading Guest Bloggers starting soon. I posted earlier about John Lande’s work in Cooperative Law — John is one of the upcoming Guest Bloggers — but some people would like a basic introduction to Collaborative Law concepts as part of learning more about Cooperative Law. Thus, I’m republishing my article.

Collaborative Law is a form of lawyering that is, to some degree, a hybrid of an unbundled practice approach that uses a mediative negotiation style. It seeks to integrate non-adversarial and cooperative strategies, and relies heavily on the empowerment of the clients as informed decision-makers.

Lawyers who commit to being collaborative lawyers agree that they will never go to court in a particular case if settlement negotiations fail; and they meet in four-way meetings in which the clients are empowered to play a major role.

The clients themselves may conduct the settlement negotiations, with their lawyers there to assure there is also legal protection. Thus, collaborative family practice, where it is established, can become the third primary dispute resolution option for families in divorce and/or separation, together with mediation and litigation.

Like mediation, it isn’t the best choice for everyone, but, also like mediation, it can be well worth considering if some or all of the following are true for both parties:

a. You want a civilized, respectful resolution of the issues.

b. You would like to keep open the possibility of friendship with your partner down the road.

c. You and your partner will be co-parenting children together and you want the best co-parenting relationship possible.

d. You want to protect your children from the harm associated with litigated dispute-resolution between parents.

e. You and your partner have a circle of friends and extended family in common that you both want to remain connected to.

f. You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity.

g. You value privacy in your personal affairs and do not want details of your family restructuring to be available in the public court record.

h. You value control and autonomous decisionmaking and do not want to hand over decisions about restructuring your financial and/or child-rearing arrangements to a stranger (i.e., a judge).

i. You 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 to you and your spouse or partner for resolving your issues.

j. You place as much or more value on the relationships that will exist in your restructured family situation as you place on obtaining the maximum possible amount of money for yourself.

k. You understand that conflict resolution with integrity involves achieving not only your own goals but finding a way to achieve the reasonable goals of the other person.

Pauline H. Teschler, Esq., Collaborative Law FAQs, [from a site available in 2002, but no longer available. Note: Ms. Teschler, a pioneer in speaking, writing and training in this area, published Collaborative Law, in 2001, and, in 2006, Collaborative Divorce, with Peggy Thompson].

It is different from mediation, in that the mediator is neutral, and cannot advise one side or advocate for one side over the other. While parties in mediation may have attorneys, the attorneys are seldom at the mediation sessions. In a collaborative law process, each party has their own attorney, at their side, to advise them and advocate for them, if necessary, throughout.

Not for all, but a growing trend, and here to stay.

John Lande is Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri-Columbia School of Law. He teaches courses on Mediation and Non-Binding Methods of Dispute Resolution. His scholarship focuses on institutionalization of mediation in the legal system and how lawyering and mediation practices affect each other. Among other issues, he writes extensively on Cooperative Law, an innovation developing in response to Collaborative Law, itself an important innovation in conflict engagement. Engaging Conflicts has a new category in 2007, Cooperative Law — Beyond Collaboration, to which this post belongs. John will also be a Guest Blogger and will be interviewed in Engaging Conflicts Today later in the winter about his work.

This is an abstract from his 2005 article: The Promise and Perils of Collaborative Law:

Getting people to use an interest-based approach in negotiation has been a difficult problem. Experts have provided helpful suggestions for ‘changing the game,’ though these ideas are usually limited to case-by-case efforts within a culture of adversarial negotiation. Collaborative law (CL) is an important innovation that establishes a general norm of interest-based negotiation and intentionally develops a new legal culture. CL reverses the traditional presumption that negotiators will use adversarial negotiation. CL parties and lawyers sign a participation agreement establishing the rules for the process. Under these agreements, lawyers and parties (negotiators) focus exclusively on negotiation, disclosing all relevant information and using an interest-based approach. Negotiators work primarily in four-way meetings in which everyone is expected to participate actively. A ‘disqualification agreement’ clause in the participation agreement provides that CL lawyers represent parties only in negotiation and are disqualified from representing them in litigation. (Although CL lawyers cannot litigate a CL case, CL parties can withdraw and hire other lawyers to litigate.) Professor Julie Macfarlane’s landmark study found that CL negotiators generally did not engage in adversarial negotiation and when they did so, they usually had more information and a more constructive spirit than in traditional negotiation. She found that CL parties generally benefited from improved communication and were satisfied with the process and their lawyers.

This article identifies four potential perils of CL. First, CL clients may have unrealistic expectations about the lawyers’ role, the time and expense involved, and implications of the disqualification agreement. Second, the CL process may result in excessive pressure to settle. Third, CL practitioners may violate rules of professional conduct. Fourth, CL practitioners may develop a quasi-religious orthodoxy that inhibits innovation and discourages clients from exercising legitimate process choices.

Here’s the article from his website.

In 2007, Engaging Conflicts will continue to center on issues identified by Bernie Mayer’s Beyond Neutrality: Confronting the Crisis in Conflict Resolution, Chris Honeyman’s Theory to Practice work (focusing on his new book, The Negotiator’s Fieldbook: the Desk Reference for the Experienced Negotiator, co-edited with Andrea Kupfer Schneider), and the October 2006 Keystone Consolidating Our Collective Wisdom conference; as well as my Wikis and Podcasts and Blogs, Oh My! program – use of the new social media on the internet for professional, personal and business development. I’ll provide Tips, Treats, and Tools, and talk about Health, Conflict and Stress, on occasion, too.

Some Guest Bloggers In 2007

Planned guest bloggers for 2007 include Kristine Paranica, J.D., Administrative Director and Fellow of the Institute for the Study of Conflict Transformation (ISCT) on transformative mediation and practice; and John Lande, J.D., Director of the Master of Laws Program In Dispute Resolution at the University of Missouri-Columbia School of Law, on cooperative law, as distinguished from collaborative law.

In Engaging Conflicts Today, the newsletter (subscribe by clicking in the sidebar!), I’ve planned interviews with Bernie Mayer, John Paul Lederach, Robert Benjamin, Chris Honeyman, Janis Magnuson (of Janis Publications), Diane Levin (of the Online Guide To Mediation blog), Jack Cooley, John Stephens, Ann Gosline, and Howard Gadlin, among others. And, as I said, The Negotiator’s Fieldbook, Chris Honeyman’s and Andrea Kupfer Schneider’s new book, will also be highlighted in 2007 (in both the newsletter and in the blog), with reviews, summaries and interviews.

Here at the blog’s new home, you’ll see the administrative categories tabbed across the topbar (Welcome, Contact, Why Engaging Conflicts?, Guest Bloggers, RSS FAQ). The first box at the top of the right sidebar lets you search the blog using keywords. You can then bookmark the blog at Technorati (use the green icon); subscribe to the blog for free at FeedBurner (use the orange icon); and then subscribe to Engaging Conflicts Today by clicking on the blue hyperlinked “Free Engaging Conflicts Newsletter!” I have fewer categories. Also, each post now allows linking with 13 different social content and social bookmarking websites, e.g., del.icio.us, digg and smarking. (If you don’t know what any of these terms and options are, spend some time in the Wikis and Podcasts and Blogs, Oh My! category!. Finally, I’ve disabled commenting, to help save the site from robotic spamming – write me privately, and I’ll respond, though.

REMEMBER: Try something new for the New Year — subscribe to Engaging Conflicts! If you’d like to learn more about RSS or web feeds from a podcast or blog consumer’s point of view, visit our RSS FAQ.