Competition, arguing, and maneuvering defines law as it’s traditionally practiced. Now, though, a collaborative law movement is gaining traction globally. I had a compelling conversation the other day with J. Kim Wright, a collaborative law practitioner who runs the site CuttingEdgeLaw.com. We discussed Kim’s new book, Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law (American Bar Association, 2010).
“We have not in recent history been very collaborative folks. We are the people to avoid in society,” Kim began. I knew instantly this conversation was going to be interesting. Kim was referring to lawyers who, she says, graduate from law school with “no heart and no soul.” Kim had read “Smashing Silos,” a column I wrote for Bloomberg BusinessWeek. And she insisted that law is all about silos. “We are taught to compartmentalize everything.” These silos include specialties and sub-specialties of law.
Collaborative law begins with the premise that people work out their differences towards the common goal of resolution rather than compete and fight through litigation. This is different from the various forms of court-ordered and pre-court alternative dispute resolution (ADR) such as mediation, because ADR often begins with the premise that if the parties are unable to resolve their differences, the case will proceed to trial. Mediation, for instance, often involves “shuttle diplomacy” in which the mediator runs back and forth between both parties and points out the weakness of each side’s case in hopes of avoiding a trial.
In contrast, collaborative law involves an acknowledgment from both parties that litigation constitutes failure to achieve goals and places a premium on preservation of relationships. Divorce and family law practice has been faster to adopt the shift to collaboration than many other specialties. In such cases, collaborative divorce and family lawyers sign contracts committing to resolve cases rather than litigate. If they fail to settle, the contracts require that the lawyers withdraw from the case.
Collaborative law grew out of a movement in Minneapolis developed by Stu Webb and others during the late 1980’s and quickly spread to northern California and beyond. The International Academy of Collaborative Professionals based in Phoenix brings together lawyers, mental health professionals, and financial professionals to resolve divorce and other conflicts.
One barrier to collaborative law is that many lawyers embrace tradition. “Lawyers hate to be on the fringe. They’d prefer to die than be weird,” Kim explained, adding that her goal is to embrace the fringe. Kim focuses on spreading collaborative law across specialties including corporate law. Too often, corporate agreements encourage conflict and ultimate litigation. In her practice, Kim abandons “boilerplate” or standard contract language and instead writes agreements in plain language designed to anticipate and prevent conflict. “When a conflict comes up, we’ve actually already talked about what to do if there’s a conflict,” she notes.
Like corporations, lawyers are waking up to the value collaboration creates both for practitioners and customers.