For many years the norm in the SF Bay Area was to permit submission of limited
issues, under very limited conditions, to a private judge for
resolution---much like binding arbitration. It was an element of nearly every
participation agreement I signed onto since about 1995. The private judge was
named in the participation agreement, and the very narrow conditions under
which the option could be used were specified in detail. In my own experience,
the parties actually made use of that available option exactly once. so it did
not encourage use of arbitration. I think it made some clients feel safer,
inasmuch as they knew coming into the process that an impasse might not
necessarily lead to termination. We lawyers knew that impasses were in fact
very rare in collaborative practice, but the clients did not, and so the fact
of this option being written in black and white I think reassured some
understandable anxieties. In actual practice, it is difficult to meet the
conditions under which the participation agreement permitted use of the private
judge option, and as it has turned out, people who can agree on all the
elements required to utilize the private judge option can even more readily
agree on other, easier ways of resolving apparent impasses. At least, that's
how it's always worked out in my experience. The fears surrounding the
availability of this option are to my mind more theoretical than real. I
shared all of those fears when our group first decided to permit this option,
back in the early 90's, over my objection. Since then my actual experience has
made me reconsider. I think it does help clients take the leap, and it is
rarely if ever actually used. You can see the text of that participation
agreement in my book if you are interested..
Pauline H. Tesler
Tesler, Sandmann & Fishman
163 Miller Avenue, Suite 4
Mill Valley, California 94941
Telephone: ( 415) 383-5600
Facsimile: (415) 383-5675
Website:
www.lawtsf.com
This message may include privileged attorney-client communications. If you are
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----- Original Message -----
From: Harry L. Tindall
To: CollabLaw@xxxxxxxxxxxxxxx
Sent: Thursday, August 19, 2004 8:51 AM
Subject: RE: [CollabLaw] Arbitration and withdrawal of CL counsel
Arbitration is often suggested for a single issue or two. The more
interesting issue is whether the use of arbitration should be agreed to
in the participation agreement. I am inclined to believe this is unwise
action as it will quickly become the default option if negotiations
become stalled. I think the better practice is to negotiate for
arbitration if termination appears to be the only option remaining.
As to consulting experts, I believe such individuals should be disclosed
and perhaps their findings. It doesn't seem very collaborative if
outside persons are being consulted, influencing the collaboration and
not disclosed. Hope this helps.
Harry L Tindall
Tindall & Foster PC
1300 Post Oak Blvd Ste 1550
Houston TX 77056-3081
Direct 713 622 8733 x21
Website: www.tindallfoster.com
________________________________
From: staceylangenbahn [mailto:stacey.langenbahn@xxxxxxxxxxxxx] ;
Sent: Thursday, August 19, 2004 9:39 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: [CollabLaw] Arbitration and withdrawal of CL counsel
Our group in Dallas is putting the finishing touches on a draft
participation agreement for non-family matters. We came up with a
question, though. If the parties want to arbitrate, do the
collaborative counsel have to withdraw because arbitration is an
adversarial proceeding? What if it is only an issue or two they want
to arbitrate? Also, how do you deal with consulting-only experts?
Does a party have to disclose the identity of a consulting-only
expert to the other parties? Can that consulting-only expert's
opinions remain confidential if the expert's work is not reviewed by
a retained expert? Thanks.
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