Carl Michael
For the most part we agree. However, our situations are somewhat different.
I am often involved in civil disputes other than family, and most of the
time, I don't have the choice of being able to offer the collaborative
process because the other lawyers don't know "what the Hell" I am talking
about much less are willing to enter into a written agreement.
Consequently, I have not had the option of whether or not to use CL. When I
work "cooperatively," I have tried to be transparent ( by this I mean that
I do exactly what I say I will and avoid posturing and threats). I try to
set up a face-to-face meeting with my client, the other parties, and their
lawyers as soon as possible to learn their interests and concerns and share
my client's concerns. If we come to any agreements in the meetings on how
to proceed, I immediately confirm what we have discussed in a letter to the
other lawyers and invite them to correct any misunderstandings in the
letter. I concentrate on solutions, the parties accepting responsibility
for their parts in the dispute, and avoid focusing on blame. Working this
way, we have reached agreements on the voluntary exchange of documents- they
would get them in formal discovery anyhow-and we have agreed upon a single
objective expert rather than battling experts. Many litigation lawyers are
so taken aback by this approach, they "cooperate" and we are able to reach
an agreement. Often we have resolved disputes in only one meeting that
would have taken months or years to resolve in litigation. These are not
collaborative cases, but I am using collaborative skills, and by the time
everything is over, the other lawyers learn about the collaborative process.
Maybe someday they will get trained and try it-or at least refer some of
their clients who have family disputes to collaborative lawyers.
As far as continuing representation at the courthouse, I tell my clients in
the initial interview that I do not go to court, so they are completely
informed that I am being hired strictly for settlement purposes. My
employment agreement states in bold type that if the dispute does not settle
in a non-adversarial dispute resolution, that I will withdraw and the
parties must hire litigation counsel to proceed. Almost without exception,
people say they don't want to go to court, so that doesn't matter. Using a
cooperative approach is not a matter of choice for most of these people, it
is a matter of necessity since I have no control over getting the other
lawyers to agree to anything else.
I remember when John Lande first did his research with the lawyers in
Wisconsin. As far as I know, he has based his conclusions on a very limited
sampling of lawyers and not on any personal experience in handling cases.
The article by John that you cite mentions that the cooperative lawyers use
participation agreements. It does not say whether or not the PA is in
writing. When he compares the cooperative PA to the collaborative PA, he
does not state that the collaborative PA must be in writing. Consequently,
how much does he really understand about the practical application of either
process? If I remember correctly, his original research showed that most of
the so-called collaborative lawyers he interviewed preferred cooperative to
collaborative, did not use a written PA, and they preferred cooperative
because that allowed them to take the parties to court for "reality checks"
whenever they felt that was necessary. My impression is that there are very
few cooperative cases that actually would fit his definition of a
cooperative case unless they recently have substantially changed the way
they practice. Has anyone who actually uses the cooperative approach
defined it? I don't know the answer to that. To me, cooperative is still
everything from a written PA without the withdrawal provision to a verbal
agreement to cooperate regarding something to do with resolving the issues.
At any rate, come to the ABA DR Spring Conference in Chicago in April and
give me a hard time when I present on using collaborative skills in other
forms of dispute resolution. We might be able to get a lively debate going
that would generate some interests in the collaborative process.
Best regards,
Sherrie
Sherrie R. Abney
Law Offices of Sherrie R. Abney
2840 Keller Springs Road, Ste. 204
Carrollton, Texas 75006
972-417-7198 phone
972-417-9655 fax
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From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of carl Michael rossi
Sent: Wednesday, February 13, 2013 3:22 PM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
Sherrie,
I start from your end point. I could not agree with you more that the
goal is to support the clients in finding their way to a set of decisions
that works for them. And that whether they use 'my way' or some other
'highway' is of no moment to me.
That said, you start by wondering "What is cooperative law?" I did
describe it, albeit briefly, it IS a specific approach. As John Lande, it's
primary voice, describes it "The formal difference is that the Collaborative
Practice (or "Collaborative Law") participation agreement includes a
"disqualification agreement" ...." I.E., Cooperative Law claims to be
simply all that Collaborative Law is...without the 'inconvenience' [my
sarcastic word] of the 'disqualification agreement'.
http://law.missouri.edu/lande/publications/Lande%20FAQ%20re%20Cooperative%20
Practice.pdf
I stand by everything I said before that trying to ride both of these
ponies of litigation and Collaborative Practice at the same time runs the
risk of dumping the cowboy/lawyer in a mud hole. They are definitionally,
conceptually, practically and ethically incompatible. That is what
Cooperative Law "is". It is a sterile mutant born of professionals' desires
to not let go of a client once they have them. It is not focused on the
well-being of the clients so much as on the revenue stream of the
professionals.
Myself, I have worked for a while within a framework of a 'time-limited'
participation agreement. The PA by its terms ends, unless it is renewed by
all at a working meeting after 'X' number of meetings and/or 'X' number of
months. I have not yet played with an "after $'XX.xx' in fees" but would
consider it. I believe the clients deserve every opportunity to work
together. I do not believe they should suffer the cajoling of
professionals' suggestions that they 'just try one more meeting' when the
professionals have no idea themselves what the hell they might do to support
this couple further, better, or even differently.
To go back to your end point. Absolutely there are lots of ways in which
clients can be supported in their efforts to reach decisions. I believe,
however, that a few things must remain true.
1- That the professional must know what the hell s/he is doing in offering
the 'appropriate' support and be committed to it.
2- That once the highway is chosen with which the professional is familiar,
that it is the professional who guides the journey. Not the destination
(the result), but the process. [Simplistic example - A doctor doesn't
remove the bandage from a patient's wound simply because the patient is
'uncomfortable with it'. Similarly, a Collaborative professional shouldn't
agree to, let's say, doing all the talking for his/her client simply because
the client is 'uncomfortable with' talking.]
For those reasons, I have never been a huge fan of blanket assertions
that 'the clients control the process'. [which is very different from
'clients determine the outcome'.] I've always wondered that if we are
insisting that we are not telling them WHAT to decide and we are not telling
them how we will SUPPORT them in their decisions.....then aren't we just
stealing their money? Shouldn't we just tell them to sit together at a
table without us because we're offering them nothing?
Again, I completely agree with you that there is a chasm of opportunity
between "all" or "nothing". And I also believe that there is a big
difference between talking about what will work best with particular clients
and doing whatever the hell we [or they] feel like simply because it's
'better than going to court'. I don't see that as a standard to aspire to;
besides who am I to say whether what I offer them by way of support is
'better' for either of them than is going to court??
The fact that calm dialogue can result in decisions without having to
resort to or even threaten court is no big surprise. The question is what
do we as professionals bring to the table to support that in happening?
What Collaborative Practice offers, that no prior systematic approach did,
is the full, undistracted commitment of the professionals to maintaining
that dialogue; and ONLY that dialogue. That is why Stu has requested
repeatedly that the term Collaborative Practice [/Law] ONLY be used in
reference to a circumstance in which the professionals have NO involvement
with any litigation.
If you might have to end up in court, then you're simply not going to be
doing an effective job of NON court dialogue support toward peace for both
clients.....OR of leveraging the prospect of court into a satisfactory
settlement for your client.
On Wed, Feb 13, 2013 at 12:39 PM, Sherrie Abney <sherrie.abney@xxxxxxx>
wrote:
What is cooperative law? I do not think there is a definition that anyone
has agreed upon. My understanding is that it can be everything from a
participation agreement without a withdrawal provision to a verbal
agreement to exchange specific documents. Sometimes people speak of it as
though it were a plot to overthrow the government or something worse.
I understand that many collaborative lawyers who have done litigation or
still do litigation believe in an "all or nothing" approach when it comes to
litigation or the collaborative process. They either do a collaborative
case, or they go back to all of the adversarial tactics they formerly used
in litigation. Nothing in between appears to be possible for them.
That is certainly a choice each person must make. My choice is to meet my
clients' goals and concerns. If they want to try to settle, then I am going
to do my best to accomplish that whether it is in litigation or the
collaborative process. As much as I do not like litigation or the bad
behavior and "misinformation" spread by some litigation lawyers, I do not
believe that all lawyers who are not collaborative lawyers will pretend to
move toward settlement while attempting to undermine negotiations. I have
proof that some will not behave that way in cases I have had that were
"cooperatively" settled.
When I did litigation I also prepared for trial from day one, but I also
looked for every opportunity to settle and end the dispute as quickly as
possible. Consequently, although I will always prefer the collaborative
process, I will not abandon a client to litigation unless it is absolutely
necessary, and I will work with whomever is on the other side to any degree
that I am able in order to achieve a settlement that is acceptable to my
client.
Let us agree to disagree, and if I get sued for mal-practice, so be it. If
I am sued, I will be sued for doing what I believe to be in the best
interests of my clients.
Sherrie
Sherrie R. Abney
Law Offices of Sherrie R. Abney
2840 Keller Springs Road, Ste. 204
Carrollton, Texas 75006
972-417-7198 phone
972-417-9655 fax
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From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of carl Michael rossi
Sent: Wednesday, February 13, 2013 11:31 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: Re: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
Bless you, Ann.
I've been saying much the same thing since the very first time I heard a
description of 'Cooperative Law'. "Signed agreement; full open disclosure;
needs exploration; AND if it doesn't work out, I still represent you in
court" huh ??????
I have from the first described this mutation as the clearest welcome mat
for a malpractice suit I've ever seen for the reasons you suggest. When I
was litigating, my obligation to my client was NOT, NOT, NOT, to rush to
find some settlement that might work. It was to prepare the case to
prevail. And then, ONLY as preparation indicated to me the likely outcome
at trial, ONLY at that point do I engage in se! ttlement talks.
Maybe I was ruthless as a trial lawyer [there were some who would have no
problem with such a description of me], but I always suspected I could
prevail at trial when the other attorney called first to talk settlement.
And I was pretty sure I would mop the floor with him/her if they called
right away. [OR, if I had done my homework quickly enough, I knew that I
was the one who did not stand much of a chance and welcomed their generous
call.]
Because overall, that IS, as you say, the role of the litigator....to
prepare for trial. NOT think about trial "only if settlement talks don't
work out", but from day one. And part of that does indeed involve never
disclosing what I know that I don't have to unless I am absolutely certain
that I lose no advantage at trial by doing so.
But THAT to me is the heart of the difference between the dialogues that
take place Collaborative Practice and just lazy settlement talks in
litigation. The former is predicated in a shared search for genuine,
productive peace. The latter are nothing but bullying and bluster,
arm-twisting and asset-dwinding. In 'settling' litigation, the only 'needs'
that ever get talked about are the OTHER client's. As in, 'your client
doesn't really need that much'....so you should 'settle' for what my client
wants to give.
In a few of my presentations, I've gone so far as to suggest that
attorneys who claim that there is no difference between what they do in CP
and what they've always done in settling their litigation cases, that maybe
they simply weren't very good litigators. I suspect that won me few
admirers, but among my biases is one that a lazy litigator is not likely to
make a very good Collaborative lawyer either.... no matter how much s/he
'talks purty'. Mainly because, CP requires every bit as much work as
litigation; sometimes more.
&n! bsp; If you've ever heard me share the fact that I never refer to my
CP work as 'settlements', you might now have an idea why. ;-) LOL
InJoy!
cMr
Collaborative Practice Chicago
Divorce Without Warfare
carl Michael rossi, M.A. J.D., L.P.C.
Attorney, Mediator, Coach, Counselor
773-442-2751
<mailto:cMr@xxxxxxxxxxxxx> cMr@xxxxxxxxxxxxx
<http://www.cpchicago.net/> www.CPChicago.net
Executive Director, <http://cppillinois.com/> Collaborative Practice
Professionals of Illinois
Publisher, The World of Collaborative Practice
<http://theworldofcollaborativepractice.com/> : A Magazine Promoting
Collaborative Dispute Resolution for the Full Range of Possibilities. An
international online magazine for professionals and the general public
On Tue, Feb 12, 2013 at 1:06 PM, Ann Gushurst <ann@xxxxxxxxxxxxxxx> wrote:
Sherrie,
Ah, we think largely alike.
First, as to cooperative law. having weathered the ethical storm here, I
came to the very firm opinion that cooperative law was malpractice waiting
to happen. You simply cannot push and pull at the same time. As I wrote in
2007:
"One cannot readily both protect a litigation position and! also pursue the
client's interest-based needs and it seems inherently conflict ridden to
attempt to do so. If, by way of analogy, the collaborative attorney is
prohibited by the disqualification clause from building the "secret case"
against the client mentioned in the New Jersey opinion, wouldn't a
cooperative attorney be required to do so, in case the cooperative process
failed?
Nothing in the intervening time has convinced me that this perspective is
wrong.
I do think that there is a problem with any model of collaboration being
imposed.willy-nilly. One size never fits all. As to who should be on a
team. I am a big fan of the power of the neutral person, but I agree that
having a financial person is not always necessary. I am less inclined to do
away with coaches and sometimes I've wondered whether or not coaches could
do more of the advocacy piece and we could have a legal neutral for the
legal piece (which wouldn't be permissible under current ethical rules in
Colorado, but is still an intriguing concept to me.)
I've often also struggled with how to maintain the attorneys as the keepers
of the process, as opposed to dictators of the process. Sometimes the
inherent characteristics of the parties make collaboration really, really
hard and at what point to you say "I'm sorry, but you must have a coach or I
quit." That is a hard decision, and you don't always find it where you
think you will find it. I remember that I was surprised when one of my most
difficult cases (and it actually was one of two that have fallen out of
collaboration) failed because one of the parties, while prepared to be
benign and reasonable, did not - on a fundamental level - have the ability
to share decision making. ! ; The person was the CEO of an enormously
large concern, had a monthly income that approximated my annual income, and
although they were a person of tremendous integrity they simply could not -
it was not in their nature - share decision making. Which of course made
collaboration impossible.
As a conclusion, I would like us as professionals to move divorce more to a
collaborative default, with people opting to litigate.
There are no perfect models, we are all still learning, and the range of
possibilities and permutations appears to be endless.
Just when I think I've seen it all, I find to my perpetual surprise that I
have not.
Ann
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of Sherrie Abney
Sent: Tuesday, February 12, 2013 9:57 AM
To: CollabLaw@xxxxxxxxxxxxxxx; cppil@xxxxxxxxxxxxxxx
Subject: RE: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
Ann
You really made some valid points. I have been very fearful for a long time
that the collaborative process might end up a little like litigation wherein
the lawyers are doing what they have always done before or doing what they
think best rather than focusing on the parties and their interests,
concerns, and needs and seeking out new and creative options for each client
and that person's situation.
There are huge outcries against "cooperative law", and some of my good
collaborative lawyer friends say that no such thing as cooperative law
exists. No matter what label you put on it if the parties for whatever
reason are unable or refuse to participate in a process with a written
agreement containing a withdrawal provision then, I believe that we should
attempt to pursue settlement in any manner that is reasonable, legal, and
able to keep the parties away from the court house. Call that anything you
wish. I view resolution options as being on a continuum with litigation at
one end and the collaborative process at the other. I attempt to move
everyone as far as I am able toward the collaborative process, but I can't
always get everybody to go that far.
I also believe that we should use other professionals when the parties
prefer them or they are absolutely necessary-not because they are part of a
model that we have used in the pa! st or that someone else says we should
use.
I fear that collaborative lawyers are becoming too dependent on the other
professionals and afraid of going forward without them. I was recently
involved in a case where the other collaborative lawyer was so accustomed to
relying on a financial person, we had to hire one to explain the parties'
property division before she was comfortable enough to move on. The MHP and
I both tried to explain, but she would have none of it until a financial
person she had previously worked with talked to her. Otherwise, the case
went quite well, so that hiccup was better than going to court, but still---
I have heard collaborative lawyers say they would rather "sit back" and let
the MHP run the meetings. Certainly there have been situations where having
an MHP is very helpful and even necessary to keep peace and expedite the
discussions, but I have settled cases in both the collaborative process and
litigation where the lawyers handled everything and still achieved a good
result and saved the parties a great deal of time and expense. Employing
other professionals is wonderful when they are really necessary, but they
should be employed with the express approval of the parties and for the
convenience of the parties-not the convenience of the lawyers.
Fortunately most collaborative lawyers are making a wonderful difference in
people's lives, but I still have the little voice that tells me t! hat we
need to beware of falling into bad habits.
Just my opinion,
Sherrie
Sherrie R. Abney
Law Offices of Sherrie R. Abney
2840 Keller Springs Road, Ste. 204
Carrollton, Texas 75006
972-417-7198 phone
972-417-9655 fax
This e-mail message (including any attachments) contains confidential and
privileged information intended solely for the addressee(s). Please do not
read, disclose, duplicate, distribute, or take any action in reliance on
this information unless you are an addressee. If you have received this
e-mail in error, please notify the sender by return email and destroy all
electronic and paper copies of the original message and any attachments
immediately. Thank you.
From: CollabLaw@yahoo! groups.com <mailto:CollabLaw@xxxxxxxxxxxxxxx>
[mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf Of Ann Gushurst
Sent: Monday, February 11, 2013 2:54 PM
To: CollabLaw@xxxxxxxxxxxxxxx; cppil@xxxxxxxxxxxxxxx
Subject: RE: [CollabLaw] How different from litigation? How much like
mediation? Is our message getting distorted? Is CP getting distorted?
cMr,
Unfortunately, it REALLY depends on the people involved - including the
participants.
I have a good friend who is not practicing in Colorado who claimed to have
done dozens and dozens of collaborative cases . Upon talking to several of
the clients, I realized that the 'collaborative' process followed sounded
really a lot like what was described below. controlled settlement
negotiations between two attorneys who were really used to working together.
I also know that in some of my own cases, we resorted to more of a
settlement negotiation when the parties fired/ refused to work with coaches.
However, my guess is that most of my clients would not describe their cas!
es as outlined below.
Having said that, the perspective a client has about the process can often
vary markedly from the perspective of the professionals. I am constantly
reminded of that. Just the other day, we finished a very difficult case
which was NOT collaborative, but which was settled in mediation (of a very
settlement negotiation type). The client was very unhappy with the way the
final two days wrapped up with the myriad of last minute negotiations and
demands, and was very unhappy with the opposing counsel. And while some of
his complaints were very valid, I reflected on how really, his case was
fairly civil, many of the last minute hiccups were the product of opposing
counsel's inexperience and opposing party's mean-spiritedness (after all,
they were getting divorce for a REASON) but they were MINOR.
It's all perspective right? My client was irate. Was threatening to pull
the plug. And while it was annoying, it was a good site better than a 6
month litigation battle - but how to impart that to the client? "Look, it
could have been WAY worse and way more expensive, count your blessings. She
was only bitchy for two days.??" just kind of rings hollow, you know?
Same for collaborative divorce which, when all is said and done, is still a
divorce - painful, expensive, and full of unexpected loss.
Ann
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf
Of carl Michael rossi
Sent: Monday, February 11, 2013 11:13 AM
To: CollabLaw@xxxxxxxxxxxxxxx; cppil@xxxxxxxxxxxxxxx
Subject: [CollabLaw] How different from litigation? How much like mediation?
Is our message getting distorted? Is CP getting distorted?
I put this also on a LinkedIn Group....but I still prefer using the
listServe for such questions....
Came upon a very interesting chart comparing
Mediation-Collaborative-Litigation....compiled by a non-attorney mediation
service in New Jersey and Illinois. Some highlights from the CP column:
"Child Focused? - Maybe - collaborative divorce is directed by two family
attorneys who may or may not have your children's best interests in mind."
"Participation by the Parties - Medium - Collaborative divorce is controlled
by family attorneys and other professionals. You have some input in the
settlement they draft."
"Fairness - Medium - Having a family attorney fight for you might lead to a
fairer agreement. Or it might not.If you're lucky you'll have two attorneys
in the room who know each other and can at least try and work together."
"Likelihood of compliance! - Moderate - The parties may have had some hand
in the settlement but since it was more likely directed by two family
attorneys, you may or may not agree with the settlement and want to comply."
Obviously this person is pushing his own services. But how far off is he? My
perception is that the more a professional considers CP as "settlement", the
more the process ends up being just what this one says about us.....that it
isn't all that different from litigation. What do you think? How do you make
sure that you are NOT just 'settling'?
InJoy!
cMr
Collaborative Practice Chicago
Divorce Without Warfare
carl Michael rossi, M.A. J.D., L.P.C.
Attorney, Mediator, Coach, Counselor
773-442-2751
<mailto:cMr@xxxxxxxxxxxxx> cMr@xxxxxxxxxxxxx
<http://www.cpchicago.net/> www.CPChicago.net
Executive Director, <http://cppillinois.com/> Collaborative Practice
Professionals of Illinois
Publisher, The World of Collaborative Practice
<http://theworldofcollaborativepractice.com/> : A Magazine Promoting
Collaborative Dispute Resolution for the Full Range of Possibilities. An
international online magazine for professionals and the general public
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