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
Email: landej@xxxxxxxxxxxx <mailto:landej@xxxxxxxxxxxx>
LL.M. Web: http://law.missouri.edu/llm/ ;<http://law.missouri.edu/llm/>
Personal Web: http://www.law.missouri.edu/lande/
<http://www.law.missouri.edu/lande/>
Re: collaborative Practice article
<http://us.lrd.yahoo.com/_ylc=X3oDMTJxMWRoNDhyBF9TAzk3MzU5NzE1BGdycElkAz
I0MTQwNzUEZ3Jwc3BJZAMxNjAwMDU5MzU0BG1zZ0lkAzg1MTQEc2VjA2Rtc2cEc2xrA3Ztc2
cEc3RpbWUDMTE0OTgwMzE4OQ--;_ylg=1/SIG=11pccbdkk/**http%3a/groups.yahoo.c
om/group/CollabLaw/message/8514>
Posted by: "brutoria@xxxxxxx" brutoria@xxxxxxx
<mailto:brutoria@xxxxxxx?Subject=%20Re:%20collaborative%20Practice%20art
icle> brucepecklaw <http://profiles.yahoo.com/brucepecklaw>
Wed Jun 7, 2006 5:35 pm (PST)
Carroll:
I concur with your assessment. On whole, I thought it to be a good
article.
One area of criticism that I need to re-read a few more times to be
clear
about, has to do with the extension of collaborative law into areas of
civil
litigation. My only grounding is in family law, and I am neither
familiar with
the extensions that have been made in these areas, nor clear about the
validity of the criticisms.
Having been a part of the discussion about professor Lande's concerns
about
the disqualification provision, I find it hard to agree with his
assessment
about some practitioner's placing their own values ahead of their
clients'. I
guess it would be a problem in whatever context it occurs if and when
lawyers do this. Moving from this point to the fear about giving the
other party
the power to force their spouse to fire their attorney asking too much
of
some clients, especially outside of family law, and concluding from that
this
would be solved by simply offering the alternative of cooperative law,
still
does not resonate for me. It reflects in part, for me, the distance of
the
academician from the playing field.
What is becoming increasingly clear for me is the flip side of the
disqualification provision - which was created as much as a way of
demonstrating to
the clients that the attorneys had no vested interest in playing court,
only to
settle before trial, which is the real flaw of the adversarial model.
What
gives collaborative law juice, however, is not the disqualification
provision,
but rather the collaborative commitment to remain in the process until a
result can be reached that works for each party. I am convinced that
this is the
articulation of powerful principles that are at work in the
collaborative
process that have given this model its legs.
Left to their own devices, many clients, I believe, will choose the
relative
security of being able to maintain using their attorney in the event of
trial, rather than making the collaborative commitment, without fully
appreciating the benefits of doing so. In doing this they may well
deprive themselves of
the real magic of collaborative law, the healing that comes from
reaching a
collaborative conclusion.
Certainly, we have always held that collaborative law will not work for
everyone, and it is a mistake if parties end up there without fully
comprehending
the process and making an informed choice. This is a critical phase of
the
process, one that requires the best efforts of the collaborative
attorney, and
the ongoing focus of our training.
I can't help but compare this concern, however, to the reality we have
all
witnessed with parties being indoctrinated into the adversarial process
without ever being given the choice that collaborative law offers.
Similarly, the concern expressed about "excessive pressure to use the
process, and once you are in it, is there excessive pressure to reach an
agreement"
fails to resonate for me. Excessive pressure as compared to what? That
seems to me to be very subjective, and a pretty hard factor to quantify.
Divorce
ranks among the most stressful events in our lives. Yes, there will be
pressure for parties going through divorce.
Given the client focus of collaborative law, coupled with the
increasingly
common use of mental health professionals, my money is on collaborative
law
being substantially less stressful than the alternative. In addition to
which,
the parties are in control of the process, rather than ending up on
court
calendars moving relentlessly toward a day of reckoning, whether one or
both
parties are prepared or not. Talk about excessive pressure to reach an
agreement.
Julie Macfarlane observes, "There is a gap between the commitment and
the
zeal of these lawyers and their clients." I trust that is an accurate
assessment of the cases she studied. Rather than a flaw in the model
that tells me we
still have room for improvement in what we do. Indeed, she reflects that
almost immediately, acknowledging that lawyers will learn how to
structure the
process better as they handle more cases collaboratively and fine-tune
their
training.
All in all, this is a very good article. It gives us some things to chew
on.
Perhaps we don't need to over-react to the parts that don't fit as well
for
us.
Take Care
Bruce D. Peck
Collaborative Family Law
9202 Tyne Lane
Inver Grove Heights, MN 55077
(651) 994-9944
(651) 994-9955 Fax
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