I appreciated the post by John Lande, and value the insights and
perspectives that he has to offer. It does me good from time to time to remind
myself
that we all have a unique perspective of the topic that we can add to the
discussion. We each occupy a promontory around the sea of collaborative
practice
that provides us a spectacular but limited point of view about the subject. It
is easy for those of us who have occupied our promontory the longest to
automatically assume we have the best view.
Collaborative practice benefits greatly by having as many promontories as
possible observing the program. We all speak truth, at least in part, and,
barring evidence to the contrary, we are each sympathetic to the cause.
I offer these observations as a backdrop for my own process of considering
the limitations of my particular point of view. To wit: the nature of my
practice has evolved to where I no longer take cases in the adversarial arena,
with very few exceptions. Statistics continue to tell us that something in
excess of 95% of all cases end up settling rather than being decided by a
judge.
Based on this I continue to take cases that are not collaborative, but with
the express limitation in my retainer agreement that if negotiations break
down I will withdraw and refer my client to a trial specialist.
Those cases shake out both ways. Often times, we are able to settle the
case. Other times, the march of justice places the case on a court calendar,
and
I help my client find a trial attorney.
These realities shape my perception of the discussion about cooperative law.
You might say, aha, see, you are already practicing cooperatively, so what
is the big rub!?! While it would appear that way on the surface, the fact is I
do NOT take cases into the court system. It is, in part, for this reason that
the cooperative practice does not fit for me. Interestingly, this fact does
not always keep clients from choosing to work with me even with the
limitation expressed.
I am aware that a good many attorneys who practice in my jurisdiction make
similar commitments, though most limit all cases to collaborative cases only.
I suspect that a good many attorneys in other jurisdictions have also decided
to limit their practice to avoid trial cases. Therefore, this is another
consideration in considering whether collaborative and cooperative cases
should
be offered side by side.
I can understand that for some clients, being able to maintain a
relationship with their primary attorney whether the case settles or goes to
trial can
be important. For my situation, I can honestly tell my clients that their best
interests are served by having a trained and skilled negotiator working with
them toward settlement, and, should that fail, to have a skilled trial
attorney by their side at court. That logic often makes sense to most of my
clients. If the case looks to be conflicted and contentious, I recommend the
client
hire a trial attorney at the beginning, especially when their spouse has
already opted for this set of skills in their attorney.
Were I to consider myself a skilled trial advocate, and a skilled
collaborative attorney, I may well have a different take on the matter.
Recognizing that collaborative attorneys who are skilled trial advocates
universally come into collaborative law with those skills already honed is
another factor that leads me to disfavor an approach that would seek to do
both
for the client.
John Lande makes the observation that "some practitioners place their values
ahead of parties' needs." I would submit that, in this context, all
attorneys place their own values ahead of the clients needs, because our own
values
are the only basis from which we can operate, i. e., when an attorney tells
their client, I do full service here, and I can represent you in the
collaborative model, or, if that fails, I'll be your attorney in court, I
think it is
still fair to argue that the attorney is placing their own values above the
client's needs. They obviously are comfortable operating in the court arena,
or
they would not be willing to take the case to begin with.
It does not follow, from my perspective, that the client necessarily knows
what is in their best interests, simply because they don't want to lose the
relationship with their attorney. Many clients, when they first walk through
my
door, are in the space of wanting a pound of flesh from their spouse. It is
precisely for this reason that clients, in effect, make a pact with the devil
when they succumb to gratifying base instincts, which can usually
irrevocably set the tone for how their whole divorce gets played out.
When their advocate has a wealth of experience as a trial litigator, and is
now looking to move into the collaborative practice, my fear is that their
relative comfortability as a trial advocate may be counterbalanced by
relative
inexperience as a collaborative attorney. This imbalance in skills may well
lead to the failed collaborative case, which can move seamlessly into court.
In any event, we are all talking about hypothetical cases. In reality, the
choice for the client should be simple: choose chocolate or vanilla. Opt for
committing to a process that only contemplates reaching a result that works
for each party- or don't. There is nothing magical about cooperative law - it
already exists, and has since the dawn of divorce. Most cases resolve
themselves by agreement of the parties. We all recognize that the risk in
traditional
cases is the attorney that the spouse hires. If the only set of tools they
own is litigation, that is the only result a client can reasonably expect. If
the attorneys are deal-makers, they will probably help the clients reach some
kind of accord.
From my perspective, it still does not make sense to think that
collaborative practice can in any way be enhanced by including it in a package
that
contains the choice for cooperative practice.
Finally, I am still not clear, John, with your thoughts in the paragraph
beginning, "I differ with Bruce Peck...", where you go on to discuss the
disqualification provision in non-family law cases. I my original post, I did
state
that my only grounding is in family law, and I am neither familiar with the
extension of collaborative practice to non-family areas, nor clear about the
validity of those criticisms.
When I commented about some of your views reflecting the distance of the
academician from the playing field, let me clarify that is not intended to
discount the validity of your observations, only the promontory from which
they
are perceived. I value both the work you do and your voice on this listserv.
Take Care
Bruce D. Peck
Collaborative Family Law
9202 Tyne Lane
Inver Grove Heights, MN 55077
(651) 994-9944
(651) 994-9955 Fax
NOTICE: PRIVILEGED AND CONFIDENTIAL: This electronic mail message and any
attached files contain information that is intended for the exclusive use of
the individual or entity to whom it is addressed, and may contain information
that is proprietary, privileged, confidential and/or exempt from disclosure.
If you are not the intended recipient, you are hereby notified that any
viewing, copying disclosure or distribution of this information is prohibited
and
may be subject to legal restriction or sanction. Please notify the sender by
reply electronic mail or by telephone at (651) 994-9944, of any unintended
recipients and delete the original message and attachments without making any
copies. Thank you.
Despite the fact that the ABA Journal article distorted my views, I
agree with Bruce Peck and others that the article generally did a good
job.
I had asked the writer to let me see the language she planned to use
about my input and she sent me an email with that language. It included
some errors and I sent an email with alternative language. Despite the
fact that I emphasized my belief that clients should be offered a choice
between Collaborative and Cooperative practice, she (or an editor)
changed my language to imply that I advocate "scrapping" the
disqualification agreement. I wrote the following letter to the editor
of the ABA Journal:
"Collaborative Counselors: Newest ADR Option Wins Converts, While
Suffering Some Growing Pains," generally does a good job of highlighting
key issues about collaborative practice. It implies, however, that I
advocate "scrapping" the disqualification agreement. In fact, I
advocate that collaborative practitioners offer clients the option of
cooperative practice (i.e., structured negotiation without a
disqualification agreement) in addition to collaborative law - as the
Mid-Missouri Collaborative and Cooperative Law Association does - not
merely instead of it.
FYI, the MMCCLA recently finished developing its forms and website
(http://www.mmccla.org/) and is planning a public education campaign in
our community for the fall. In time, we will see how this experiment
works.
I differ with Bruce Peck (and presumably most subscribers to this
listserv) about a point he focused on in his email below. It's quite
remarkable that the Collaborative practice field is determined to
maintain your commitment to the disqualification agreement for
non-family civil cases when there have been only a handful of cases
despite great efforts to stimulate this area of Collaborative practice
by a number of groups. I believe that many parties in civil cases would
benefit by Cooperative negotiation services, thus it seems that
Collaborative practitioners are placing their values ahead of parties'
needs in these cases. Even in family cases, where Collaborative
practice clearly does satisfy many parties' needs, some parties who
would like a "small c" collaborative process may not be willing to use
Collaborative practice and others may use it but might prefer
Cooperative practice instead. So I do think that it is accurate to say
that some practitioners place their values ahead of parties' needs. I
realize that we have been over this ground on this listserv and I say
this to explain my comments rather than to repeat the previous
discussion.
I agree with Bruce Peck that there is great pressure on parties in
traditional litigation, as I discussed in my Ohio State article. I
trust that Collaborative practitioners have a higher standard in
practice than "it's not as bad as litigation." Collaborative theory
highlights the importance of good, informed client decision-making and
I'm sure that most Collaborative practitioners work hard to achieve
that. My point is to highlight a risk of undermining that value, which
I hope practitioners would not categorically deny and would, instead,
take take seriously.
John
John Lande
Associate Professor and Director,
LL.M. Program in Dispute Resolution
University of Missouri-Columbia School of Law
Columbia, MO 65211
Tel: 573-882-3914
Fax: 573-882-3343
[Non-text portions of this message have been removed]
