Tuesday, January 26, 2010

Lawsuits Don't Have to be So Painful

 by Diane Dimond

Lots of lawyers aren’t going to like this column. It’s about a new way for the rest of us to think about legal representation.

 Up front let me say, there’s always going to be conflict. People disagree over business, property, divorce or next-door neighbor stuff. But what if, rather than hire high-priced lawyers to duke it out in court over months or even years, conflict was solved in a better, faster, more productive way? It would still be legally binding – it just wouldn’t necessarily take so long or be so expensive. It definitely wouldn’t be so gut-wrenching.

Enter the idea called “collaborative law.” Here’s how it works:

The guiding principal of lawyers who practice collaborative law is that everyone agrees upfront to work together in a respectful way to reach a settlement. No pit bull lawyer tactics are allowed. No promising to wring dry the opposition, filing mounds of paperwork or hiring private detectives to dig up dirt.

And clients of collaborative-law counselors sign an agreement promising there will be no yelling, name-calling or bickering about the past. Let’s face it, when you’re getting a divorce, suing your business partner, or fighting with your family over an estate, it’s human nature to want to lash out with personal insults. That’s really counterproductive behavior. In collaborative-law cases, clients know that if the process becomes too combative, both the lawyers will resign rather than participate in the ugliness. And both lawyers promise not to be involved in any litigation that might result.

 Agree to Agree - The New Lawsuit Tactic

Collaborative law is all about the gentle compromise, the smoothest and quickest route to get clients out of unworkable situations. If your case needs special expertise in a particular area – maybe a financial, labor law or even medical malpractice expert – the collaborative lawyer has a team of like-minded associates who will join the process.

The only time you go to court is at the end of the process, simply to get the state’s approval of your agreement.

In the past, professional mediators have tried to fill this role, but many aren’t lawyers and mediation sessions are often structured so the complaining parties sit in different rooms. Meanwhile, the professional runs back and forth delivering messages and trying to make progress toward a solution. No doubt mediation has proved to be extremely useful, but it can be a cumbersome process.

Now, with the collaborative-law movement taking hold in states across the country, even top-notch mediators, like Lee Jay Berman (below right), president of the American Institute of Mediation in Los Angeles, are embracing the trend and calling it a breath of fresh air for those in the conflict resolution business.

“It brings lawyers back to being Counselors at Law and putting their clients’ needs first – by its very definition,” Berman told me. “And it brings outside consultants (therapists,    accountants, etc.) into the issue in the way that they were  intended – not as competing experts, paid to say the opposite, but as expert consultants assisting the team in reaching a mutually agreeable resolution.”

While all this might sound like a great new idea, the fact is it was conceived 20 years ago by a Minnesota divorce lawyer named Stuart Webb.  He was frustrated with the constant adversarial approach to legal problem-solving, so he started a new practice seeped in the idea of cooperative compromise.  His web site's opening line says it all:  “Resolving divorce issues with dignity and support.”

Webb’s revolutionary idea of everyone joining hands for the client’s sake has already taken off. There are about 22,000 lawyers trained in collaborative law worldwide.  “I just heard there are lawyers now practicing collaborative divorce law in Iran,” he told me in an astonished voice.

When I told Webb my theory that many lawyers might not embrace his idea for fear it would limit their billing hours, he gently said, “The lawyer will still be making an hourly fee. They’d just be filling up their day with collaborative-law cases. And they’d feel better about it at the end of the day.”

Webb was calling me during a break in a meeting of about 30 lawyers.  “We were just talking inside about how we all got into collaborative law … how it re-energized those of us near burnout. I guarantee litigation lawyers don’t sit around and do that!”

In this financial day and age, anything that can resolve disputes outside the court system will help ease the burden of ballooning dockets and save taxpayers money. As citizens first, I’d think even the American Bar Association could get behind that.

I say let the collaborative movement spread! The next time you need a lawyer, look for one in your state who practices this type law.  I think you’ll find a lawyer who’s more interested in achieving a just settlement than watching the meter run.


Leah said...

I'd heard of this method back in the mid 90s but nothing ever came of it. Be interesting to see how it is received. Many thought arbitration & mediation were going to over take the judicial system but they proved to be not quite as useful as first thought - for a host of reasons.

Ann said...

Oh no! Don't get conned. My CL attorneys taught CL ethics and 1) ignored me for 7 months (no response to emails or phone calls) and 2) advised me to give up my money for my ex so he could buy a house and 3) shared private client emails behind our backs without our knowledge or permission.

Kinder, gentler? No, abusive, slovenly, breach of fiduciary work. Transparent? Only in your dreams. This is a con, raging through the legal system.

So, after a trial and appeal which I won, Palo Alto attorneys Michael Lowy and Ron Romines did for my ex what no one else could: rewarded him for defrauding me. My judge and the CA 6th District Court of Appeals would vomit if they knew.

See my pages on CL



and especially read the info on Pauline Tesler