Published September 1, 2005
Dispute Resolution Magazine
© 2001 John Lande

Collaborative and Cooperative Law -- Promise and Peril
by John Lande

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 negotiation. 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.

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John Lande is Director of the LL.M. Program in Dispute Resolution and Associate Professor at the University of Missouri-Columbia School of Law. He teaches courses on Mediation and Non-Binding Methods of Dispute Resolution. His scholarship focuses on institutionalization of mediation in the legal system and how lawyering and mediation practices affect each other. Among other issues, he writes extensively on Cooperative Law, an innovation developing in response to Collaborative Law, itself an important innovation in conflict engagement. Engaging Conflicts has a new category in 2007, Cooperative Law -- Beyond Collaboration.