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The Promise and Perils of Collaborative Law


John Lande


University of Missouri School of Law


Dispute Resolution Magazine, Vol. 12, p. 29, Fall 2005

Abstract:     
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 negotiations. 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.

This article concludes that CL is an important innovation offering great promise and posing real risks. It offers suggestions for minimizing the risks.

Number of Pages in PDF File: 3

Keywords: dispute resolution, negotiation, interest-based negotiation, problem-solving, collaborative law, cooperative law,

JEL Classification: K49

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Date posted: May 14, 2006  

Suggested Citation

Lande, John, The Promise and Perils of Collaborative Law. Dispute Resolution Magazine, Vol. 12, p. 29, Fall 2005. Available at SSRN: http://ssrn.com/abstract=899961

Contact Information

John Lande (Contact Author)
University of Missouri School of Law ( email )
Missouri Avenue & Conley Avenue
206 Hulston Hall
Columbia, MO 65211
United States
573-882-3914 (Phone)
573-882-3343 (Fax)
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