15 Pages Posted: 19 Jul 2010
Date Written: July 13, 2010
Collaborative law is “a voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter rather than having a ruling imposed upon them by a court or arbitrator.” Collaborative practice may be seen as merely the newest branch of the growing Alternative Dispute Resolution tree. But that view would underestimate its potential impact and mistake its aims. Collaborative lawyers such as Forrest S. Mosten challenge the dictum that negotiation must occur “in the shadow of the law.” Collaborative practitioners find legalistic prescription too confining in their - and their clients’ - search for real-world solutions to the legal, financial, and emotional dilemmas which arise during family dissolution and reorganization.
Collaborative practice aims to radically alter the culture of lawyering and knock the ground out from under the major premises of the adversarial system. Collaborative Law is, in short, subversive. That word implies an undermining and an upheaval. But of what? Of the fundamental idea that the client brings the lawyer a problem for the lawyer to solve.
Mosten targets his audience of “potential collaborative professionals,” advising them to reject “adversarial jousting” and devote themselves instead to fostering client empowerment. Mosten is well aware that clients - especially those in the grip of the raging emotions which often fuel the break-up of a family - may not be in the best psychological position to use empowerment wisely. But he insists that the best role for counsel to play in this maelstrom is to foster the client’s development of “a rational sense of self to overcome fierce and long-held reactive emotions” toward his or her spouse. Indeed, the attorney should not only model good lawyering but also teach effective client behavior. “People are not born clients,” and the role of a client seeking his or her best interests (instead of one simply pushing positions) needs to be learned. The best teacher, Mosten believes, is a collaborative lawyer. His Collaborative Divorce Handbook provides a step-by-step guide to the concepts, tools, and strategies needed to enter or improve upon collaborative practice. But, more significantly, Mosten’s text provides a compelling call to re-center legal practice around the client in a fundamentally different way.
Keywords: Collaborative Law, Collaborative Practice, Alternative Dispute Resolution
JEL Classification: K10, K30, K41
Suggested Citation: Suggested Citation
DiFonzo, J. Herbie, From Dispute Resolution to Peacemaking: A Review of Collaborative Divorce Handbook: Helping Families Without Going to Court by Forrest S. Mosten (July 13, 2010). Family Law Quarterly, Vol. 44, No. 1, p. 95, 2010; Hofstra University Legal Studies Research Paper No. 10-25. Available at SSRN: https://ssrn.com/abstract=1639432