Is There a Place for Collaborative Law in the Resolution of Commercial Disputes?

The concept of “collaborative law” as a means of resolving disputes without going to court has been utilized within the family law community for years. When applied in domestic and custody cases, the spouses voluntarily agree to make a good faith effort to resolve their disputes without judicial intervention and further agree to support their efforts with outside experts (financial and psychological) if or when needed. Such a collaborative approach is then formalized contractually in a “participation agreement” where the parties not only accept to make their best efforts to compromise and settle but also commit to the notion that, if their efforts to collaborate fail, the attorneys representing each side will be disqualified from representing the parties in court. Since the parties are willing to attempt this collaborative process, before filing any action in court, the joint willingness to participate creates an implied alignment of goals.  

Further, these participation agreements outline issues such as confidentiality of communications, privileged work product of lawyers and outside experts and the alternative use of mediation and arbitration for dispute resolution. But most importantly, the use of this collaborative law approach represents a sincere desire by the parties involved to do whatever they can to work out their differences without the cost, expense, and personal impact caused by going to court to resolve their dispute. A final piece of the collaborative law system is that it remains voluntary throughout the process. Therefore, participants can, at any time, terminate the process and divert the matter to a court or tribunal to litigate their dispute. 

Since this resolution method works so well in domestic matters, it seems like there should be obvious applications for this process in other civil and commercial disputes. All it would take is a commitment from practitioners to accept the idea that, under collaborative law theory, if the lawyers involved in the collaborative process fail to resolve the dispute, they will withdraw from their representation of the participating parties. Apart from that, most everything else in a standard collaborative law participation agreement follows the general conditions of any other representation agreement, including the protections related to confidential communications, lack of admissibility as evidence and work product privilege (subject to exceptions for personal injury or criminal activity).

More than twenty states have enacted some form of the “Uniform Collaborative Law Act” as recommended by the Uniform Law Commission. The opportunity for a greater acceptance and utilization of collaborative law in general civil litigation matters should be at the forefront for ADR professionals and practitioners, all of whom support the need for creative methods to help their clients reach resolutions of civil disputes without the need for court.