Recently, a group of lawyers, including some that have fostered the application of civil Collaborative Law concepts for many years, were successful in convincing the legislative committee of the State Bar of Texas to recommend that codification of the Uniform Collaborative Law Act be introduced for consideration in the 2017 legislative session. It is felt that between the time that the committee agreed to make the recommendation and the Board meeting in September 2016, certain factions of the (Trial?) Bar made it known to individual Directors that they were in strong opposition to this inclusion, and at that meeting it was agreed that the proposal would be tabled indefinitely. Contrary to the public record, there was no real room for debate.
And subsequently there was no news. The State Bar Journal made no mention of the issue. The explanation given from the Bar offices was that they did not want to give the appearance that the Bar opposed the measure, so it was better to not discuss it all, than to tell what happened.
Is it? Without the socialization of the issue, there can be no public debate.
Why do many lawyers in the Texas Trial Bar oppose the use of Collaborative Law principles in the resolution of civil disputes? This fact is not well socialized and many within the hierarchy of legal governance do not want to address issues (including this one) that may be controversial.
Collaborative Law proponents are fond of quoting Sandra Day O’Connor, former United States Supreme Court Justice and her thoughts regarding use of the courts for resolution of disputes, as follows:
“The courts of this country should not be the place where resolution of conflict begins. They should be places where disputes end, after alternate methods of resolving disputes have been considered and tried.”
—State Bar of Texas Collaborative Law Section
The Collaborative Law process is increasingly used in civil matters throughout the United States and in many foreign countries. Participants in a Collaborative Law process (and their counsel) work together in an attempt to resolve conflicts through an examination of their primary goals and interests in pursuit of a resolution that they can all agree to. The process emphasizes resolution through interest based discussions as opposed to beating up the “bad guy” in a blame game calculated to cause some damage or achieve some perception of appropriate restitution for the bad acts inflicted. Or otherwise, in a process that destroys relationships for instance in probate or partnership conflicts.
In the Collaborative Law process, the participants and their counsel agree up front that any actual or threatened litigation causes a termination of discussions. No more dramatic, “I’ll see you in court” with a door slam. Certainly the players can terminate the process and resort to more pugilistic methods. But many times through the progression of the collaboration, the parties become so invested in achieving resolution that they are reluctant to then resort to a judge or jury to dictate an outcome totally out of their control. Further, the attorneys involved in the process are not allowed to continue to represent their client in subsequent litigation of the matter, so counsel have a strong incentive to foster continuing discussions and ultimate resolution in the interest of remaining involved in the outcome.
The Collaborative Law process has been successfully used in Texas in the Family Law context for a number of years. It is especially helpful where two parents need to learn to work together in making decisions in the future best interests of their children, and to shield those children from a process that is often so ugly that there are no “winners”, especially not the children.
The process has also been successfully deployed to resolve matters requiring strict confidentiality, for instance where families or partners desire to resolve disputes outside of the public view and without destroying their long term relationship. Also in matters of medical malpractice, employer-employee disputes, probate, faith-based conflicts and other areas where the participants may have an interest in a private and self-directed resolution.
To dispel a common misnomer, Collaborative Law is different than mediation in a number of ways. Most times the court will order mediation. In some of these cases, the parties go through the motions of attempted settlement with no real interest or incentive to work through the conflict. Mediation continues the litigation mindset of backward looking, blame-game based attempt to determine how the parties will agree to assign or accept fault and apply money to a resolution, which they could perhaps “live with”. Also, mediation generally occurs after much of the emotional and financial hemorrhage has passed and the parties are either dug in on their positions or decide that they have come this far and might as well roll the dice with the judge or jury. The poor mediator in the meantime is the one doing all the work trying to convince the sides that they are better off resolving the issue. In Collaborative Law, the parties have already determined they are better of resolving the issues. And they commit to work together to that end. Not all can come to that conclusion. Some are more invested in the fight than the resolution. I am consistently reminded by a Collaborative Law mentor that the collaborative process is not for everyone.
All that being said, my intent is not to sell the process in this note. My intent is to open a discussion regarding why this cannot be discussed!