To; Partners, Ligomarc Advocates,
Cc; Legal Associates
From; Arinaitwe W. Patson
REPORT ON 9th ANNUAL NETWORKING AND EDUCATIONAL FORUM FOR INTERNATIONAL COLLABORATIVE PROFESSIONALS, IN NEW ORLEANS, LOUISIANA, USA.
Introduction;
I would like to extend my sincere gratitude and appreciation to the partners Ligomarc for allowing me to attend the just concluded forum and all the workmates for the understanding and cooperation during my absence. Before I give an audit of the forum, I must say I had a great time in USA, in and out of the conference. I was able to make maiden trips to visit friends and relatives in Chicago, New York, New Jersey, Dallas Texas and the venue of the forum, New Orleans Louisiana in my short visit. I enjoyed the whole experience and exposure and of course needless to say the first class services offered at Sheraton hotel, New Orleans. I am hesitant to say I enjoyed the food and the weather. The aforementioned forum was organized by international Academy of Collaborative Professionals in partnership with American Bar Association.
About International Academy of Collaborative professionals (IACP).
The International Academy of Collaborative Professionals (IACP), is an international community of legal, financial professionals, mental health professionals among other professionals, working in concert to create client-centered processes for resolving conflict. IACP serves members, influences the collaborative community, and benefits the public. It is committed to fostering professional excellence in conflict resolution through Collaborative Practice.
Attendance and participation.
The aforementioned forum was hosted in Sheraton Hotel, New Orleans attracting participants from the five continents across the globe notably, majority from USA, UK, Israel, Germany, France, Czech Republic, Switzerland, Ireland, Scotland, Australia, Canada, South Africa and your very own from Uganda. The forum was mainly for the members of IACP. The forum was heavily facilitated by experienced attorneys, International mediators and arbitrators and re-known authors and speakers in the area of commercial/civil practice and family law. The workshops were divided into Civil/commercial collaborative practice and Divorce/family collaborative practice. However there were other workshops cutting across all professions especially dealing with effective dialogue, how to handle stress, restorative justice and reconciliation among others. I majorly attended workshops dealing with commercial disputes/transactions. The key element that stood at the hub of these commercial/civil law workshops was the interest based negotiations in settling matters. Looking at the clients’ interests in bargaining other than taking positions that create impasse and leads to failing of the would be settled matter.
Some of the notable workshops I found very informative and relevant were;
a)How do you get past Stuck? Moving through Impasse
b)Deeper Resolution: The Synergy of Civil Collaborative Practice and mediation
c)Collaborative law- An effective tool for international commercial Dispute resolution
d)Refining the conversation: how Team discussions can unlock cases
e)Civil roundtable
f)Yours, Mine, ours: Client-centred Strategies for Negotiating Financial Issues
g)Legacy, Leverage and Durability.
h)Among many others.
Am creating a file with all these presentations to get an insight of what actually transpired at the forum. Each workshop had its topical issue to discuss and lessons to learn from. But due to workshop happening concurrently, it was not possible to attend all workshops, one had to choose. However, the papers and materials presented have been availed in both hard and soft copies. Beneath is an what collaborative practice is all about.
What is collaborative practice?
Collaborative practice/collaborative law is the brain child of a Minneapolis lawyer, Stu Webb (whom i was able to meet at the forum). In 1990 Stu was a jaded family law practitioner who “just could not take it anymore”. Instead of retiring Stu developed collaborative practice to save his clients from soul destroying litigation and to make practising his profession fun again. The practice started predominately in family matters, especially divorce. However, the practice has since evolved to encompass civil/commercial disputes and other disputes. Collaborative practice is about cooperation, not confrontation. It has been described as “Law without litigation / Mediation with advice”.
It is a clients’ problem solving with lawyers and other professionals that they need to assist them to understand each others perspective and find their own resolution. The clients are responsible for information gathering and for generating options to provide solutions. . The most fundamental characteristic of the process is that it creates a safe environment in which each participant can work successfully toward achieving his or her goals. Each participant and their collaborative professionals acknowledge that the essence of Collaborative Law is the shared belief that it is in the best interest of the parties and their families (in case of a divorce matter) to avoid adversarial proceedings, to commit themselves to resolving their differences in a manner that is empowering with minimal conflict, and to working together to create shared solutions to the issues. This process relies on an atmosphere of mutual respect, honesty, cooperation, and a commitment to maintaining a safe environment, with the objective of ensuring the continued good business relationship for commercial entities and future well-being of the parties and their children for family matters.
The lawyers and other professionals are trained to guide and assist the clients to engage in interest based negotiation to generate options that are future focused and to prevent the process from becoming weighed down by issues of blame and the purely legal “rights” of each party.
The goal of Collaborative Law is to maximize the settlement options of all parties, to increase the abilities of the parties to communicate, and to minimize the potential negative economic, social and emotional consequences which are by-products of the traditional adversarial court process. The important difference between Collaborative Practice and conventional litigation is the commitment to reach an agreement without going to court. The parties maintain control of the process and the decisions instead of relinquishing them to a judge. To reach this goal, the parties with a help of their counsel agree not to seek court intervention by committing to stay in the negotiation process and focus on settlement by design from the outset.
The process in outline is as follows;
(a) Each client is represented by their respective lawyer/advocate throughout the process.
(b) The lawyers/advocates stand in the role of “ally” to their client and seek to advance their interest.
(c) Both lawyers/advocates help the client and the other party work as a team to:
find and focus on your common interests;
understand each other’s concerns;
exchange information;
explore a wide range of possible choices; and,
reach solutions acceptable to both of them.
How is collaborative law different?
Both lawyers and clients sign a contract at the start of the process which provides that all four parties to the contract will not go to Court or use threats of Court to solve the dispute.
If the collaborative process fails, both lawyers must withdraw from acting for their respective clients.
The collaborative process is conducted on a different basis to the traditional positional bargaining approach that lawyers adopt – it is based on both clients and lawyers adopting interest based negotiation techniques.
Negotiations are carried out almost entirely in four-way meetings attended by both counsel and both clients.
In the collaborative process both clients will:
treat each other with respect;
listen to each other’s perspectives, interests and concerns;
make full and frank disclosure of all material matters;
engage in good faith negotiations;
explore all possible choices;
let go of the past in order to focus on the future.
Is the collaborative process the right choice?
Collaborative practice is an alternative dispute resolution process that has many advantages.
Both clients have skilled legal advisers at every stage of the process. Both counsel understand how to reach creative settlements. The client is never “on his/her own”; the counsel is at the client’s side, advising and assisting the client to achieve goals by mutual participation in the process and to achieve agreement.
Both clients and their counsel agree in advance to work only towards a settlement acceptable to both clients. Litigation can never be threatened. Neither party will be permitted to “play games” or take unfair or improper advantage of each other or to misuse the process.
The lawyers share with their clients a financial incentive to make the collaborative process work. The lawyers have not succeeded unless they help clients create a mutually acceptable solution. As with all good faith negotiation, some compromise is required from each side. An outcome that both parties are satisfied with notwithstanding that they have compromised is a “win/win” result.
The lawyers are “out of a job” if the process breaks down. Neither lawyer can go on to represent the client if the collaborative process fails.
The lawyers are concerned about the process as well as the outcome.
Clients and lawyers work together as the members of a settlement team, rather than working against each other as “opposing parties”.
What is the process?
All four-way meetings in the collaborative process always follow the same steps:
1.Identify what is important to each client (interests);
2.Identify what questions the clients need to answer;
3.Gather information;
4.Create the maximum number of choices;
5.Evaluate options and modify and refine them;
6.Negotiate to an acceptable agreement; and,
7.Closure.
The Collaborative process will not be suitable to every client or for every matter. It is simply another tool available in ADR. One significant advantage is that it allows the parties to generate options for the solution of issues between them that would not be available through the court process. Further, the clients choose the outcome in a process where they have control.
No Court or other Adversarial Intervention
By choosing to employ a Collaborative Law process, parties commit to settle their matter without adversarial involvement. They agree to give full, honest and open disclosure of all information, whether requested or not, and to engage in informal discussions and conferences to settle all issues. Parties agree to provide whatever releases are necessary to obtain information from accountants, employers, pension and profit sharing plans, as well as any other documents relevant to the process.
Parties agree that a court Order may be necessary to acquire information which cannot be obtained by releases. This process anticipates the preparation and filing of the necessary court pleadings to effect the provisions of the agreements and complete the process.
Participation with Integrity
Participants and professionals agree to work to protect the privacy and dignity of all involved in this process. Each participant will maintain a high standard of integrity and demonstrate respect for the needs and concerns of the other. Specifically, participants shall not take advantage of the other participants, nor of the miscalculations, misperceptions, or mistakes of others, but shall identify them for correction.
Roles of Collaborative Professionals.
Each party is entitled to select the participating attorney, financial professional of his or her choice or any expert relevant to the dispute. The parties will jointly select financial professionals as needed.
The attorneys’ role is to provide a safe environment and an organized process that will assist the parties to reach mutually acceptable agreements. The attorneys will help the parties communicate with each other, identify issues, collect and interpret data, locate experts, ask questions, make observations, suggest options, help parties express their needs, goals and feelings, check the workability of the proposed solutions and prepare and file all written paperwork for the court. Although collaborative attorneys may be members of collaborative group, each attorney is independent from the other attorney and has been hired by only one party in the collaborative process.
In divorce and other family disputes, the role of the mental health professional is to assist the parties in dealing with the psychological and emotional aspects of the ending of the relationship, the divorce transition, and in preparing for the post-divorce relationship period. In addition to acting as coaches and facilitators, they can assist in creating the framework for successful parenting relationships and strategies. Collaborating Mental Health Professionals may be employed by each of the parties, any of the parties, or the parties together.
The role of the financial professional is to assist parties to understand both the financial and tax ramifications of settlement decisions which will better enable them to reach an agreement which maximizes the financial resources in a manner acceptable to each party. Financial professionals may serve in many helpful capacities: as independent managers with whom the parties contract to organize the gathering of all relevant financial information; as experts to analyze cash flow and financial records used in the determination of support; and as experts regarding the valuation of business interests, employment benefits and retirement assets.
Roles of Parties
The parties are in charge of the process and responsible for its outcome.The essential role of the parties is to embrace the Principles and Guidelines of the collaborative process and to actively participate in the application of these principles to their specific circumstances. In so doing, the participants commit to allow each party to work in his or her role in the case with autonomy and respect. Critical to achieving success is the goal that each party feels safe in the process. One’s individual protection comes from the fact that each party must give consent to every aspect of the process. Each party agrees to refrain from taking unilateral action that would directly, or indirectly, affect the interests of the other without express consent. The parties commit to working in a constructive fashion toward creative, empowering and meaningful solutions. Most importantly, it is the parties who are responsible for coming to these solutions and final agreement.
Boundaries of the Collaborative Process
The collaborative process represents an opportunity and not a guarantee. It is essential for the parties and the collaborative professionals to operate in good faith, and with honesty and integrity if the objectives of the process are to be realized by the parties. A prerequisite to reaching these objectives is the establishment of a process which each party experiences as being safe. To that end, the parties agree to honor the personal and process boundaries of one another. These include, but are not limited to psychological, emotional, relational, and physical boundaries.
It is understood that the collaborative professionals may withdraw from a case as soon as possible upon learning that any party has withheld or misrepresented information and failed to immediately correct the problem, or otherwise acted to undermine or take unfair advantage of the Collaborative Law process. Examples of such actions include secret disposition of property, failure to disclose assets, debts or income, taking assets out of jurisdiction, dilatory conduct of either party, abuse of the minor children or plans to flee with the children.
Termination of collaborative Law Process.
Either party may unilaterally and without cause terminate the Collaborative Law process by giving written notice of such election to the other party and attorneys. The parties do not waive the right to seek assistance of the court. However, any resort to adversarial court action automatically terminates the Collaborative Law Participation Agreement signed by the parties and their Collaborative Professionals.
The attorneys’ representation of the parties is limited to the Collaborative Law process. No attorney representing a party in the Collaborative Law process can represent that party in court in any proceeding against the other party. In the event the parties choose to proceed adversarially, using the procedures of the court and the legal system, both attorneys are disqualified from representing the parties and shall immediately file Notices of Withdrawal.
If the attorneys have not formally appeared as the attorneys of record for the parties, they shall otherwise terminate their relationships with the participants.
In the event that the Collaborative Law process terminates, all experts will be disqualified as witnesses and their work product will be inadmissible as evidence unless the parties and the collaborative experts each agree otherwise in writing. However, if the collaborative process is terminated, parties are likely to incur additional retainers for new counsel and their matter may be delayed while new attorneys become familiar with our case.
Withdraw of Attorney.
Attorneys may withdraw at any time during the process for any reason. The withdrawal of an attorney does not necessarily terminate the Collaborative Law process. If the attorney for either party withdraws, the attorney for the other party may continue to represent that participant in any ongoing negotiations or processes, so long as the matter remains outside the court system.
If the participant whose attorney has withdrawn continues without a new collaborative attorney, the case may continue using collaborative principles and practices. However, the case will no longer be governed by the Participation Agreement signed by all parties at the outset of the Collaborative Law matter, as the process requires two trained attorneys representing their participants. In the event that the participant whose attorney has withdrawn retains another trained collaborative attorney, the parties agree to re-execute the Participation Agreement in order to have all parties governed by its terms.
Whether an attorney withdraws as a matter of right, or because of a disqualification because of a court intervention, the withdrawing attorney shall provide the participant with all pleadings, signed agreements, and any financial records which had been provided by the parties. File notes, correspondence and all communications between the parties and professionals shall remain confidential.
Temporary Agreements.
In order to provide each party with a feeling of safety and security, without which full commitment to the Collaborative Law process is impossible, some temporary agreements may be necessary and that those may even include mutual restraining agreements or orders. The parties agree to work in the collaborative process to reach those agreements to allow all parties to proceed with safety and security while permanent agreements are negotiated. If either party feels the need, temporary agreements may be entered as temporary court orders and that the filing of such temporary agreements shall not be inconsistent with the commitment to work without the intervention of the court system.
Confidentiality
All discussions among the parties, notes written in conjunction with those discussions, and communications between the participants and the collaborative professionals are deemed settlement discussions and may not be offered as evidence in any subsequent proceedings between the parties. Pleadings, financial records of the relationship, and written agreements signed during the process are not covered by the confidentiality provision and will survive the termination of the Collaborative Law process. The collaborative process will not create confidentiality for any documents which would otherwise be discoverable under Civil Procedure rules. Any documents created for the collaborative process (settlement proposals, schedules, summaries, etc.) for the purpose of facilitating settlement discussions and negotiations, shall be deemed confidential and may not be introduced in any subsequent court proceeding without the express written consent of all parties.
In signing the Collaborative Law Participation Agreement, all parties and Collaborating Professionals pledge to comply with and promote the spirit and written word of these Principles and Guidelines. These are the guidelines of the collaborative process which can be adopted visa avis our commercial court mediation rules.
Observations in light of Uganda
1.Collaborative law “is a type of alternative dispute resolution [having] its roots in, and [sharing] many attributes of, mediation.” Created in Minnesota in 1990, collaborative law practice has spread throughout the United States, Canada, Australia and Western Europe. While different protocols of this type of practice exist, they all share the key element of using a “disqualification stipulation” or “four-way agreement” in which “. . . the parties commit to negotiating a mutually acceptable settlement without court intervention” by using open communication and sharing information. If the matter is not resolved, the attorneys withdraw so that the clients must obtain new counsel to pursue the matter in court.
2.The disqualification agreement gives parties an incentive to reach agreement because litigation would increase the time and costs for the parties as well as the burden of starting over and educating new lawyers. Collaborative Lawyers also have an incentive to reach agreement so that they accomplish their clients’ goals and continue to receive their fees. The disqualification agreement is intended to create an environment where everyone focuses on interest-based negotiation without thinking about the possibility of adversarial litigation. The disqualification agreement clearly does promote collaborative negotiation in many cases. A disqualification agreement is not necessary or sufficient to promote collaboration, however. Some Collaborative Lawyers struggle to collaborate even with a disqualification agreement and many people negotiate quite well without one.
Although the disqualification agreement can be helpful, it also can create problems. Some parties will not use a process that jeopardizes their continuing relationship with their lawyer – and that effectively gives their adversary the power to fire their lawyer. The disqualification agreement also creates a risk of significant settlement pressure. After investing substantial time and money in Collaborative negotiations, clients may feel stuck in the process because they feel economically or psychologically unable to hire a new lawyer to litigate when it might be in their best interest to do so. This might also be problematic where there is a culture of corporate bodies hiring attorneys in retainer basis.
3.From the experience of attorneys who have adopted this mode of dispute resolution, Dispute resolution professionals have had a hard time getting people to use an interest-based approach in negotiation instead of a positional approach. ADR 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. With Uganda’s common law background and its adversarial nature, there is a likelihood of same hiccup emerging.
4.Virtually Collaborative Law developed and has been predominately practiced in family matters, despite great efforts to promote it in other disputes especially Civil and commercial matters. There are many reasons why the disqualification agreement creates a greater barrier in civil/commercial cases than family cases. Civil cases often have more money at stake, there is often a stronger relationship between lawyers and clients, and there often are weaker reputational pressures to make sure that lawyers act collaboratively. Civil lawyers would be especially reluctant to see cases go to their competitors if they do not settle in Collaborative Law. When a lawyer is hired on contingency fee basis, a disqualification agreement creates additional problems.
5.Another challenging reason for not a huge number of practitioners in ADR or collaborative law advanced at the workshop was the stigma attached to ADR processes. Some larger firms tend to put ADR processes on the back burner. This might be hindrance in Uganda as well should the practice be adopted. For example, it was observed that in a large firm in US or UK where billable hours is a main priority, the lawyers want cases that go to trial because they are guaranteed more hours. It cannot be denied that a firm will accumulate more billable hours if their lawyers spend a majority of their time litigating than if they were practicing collaborative law. Some larger firms work with big clients that believe litigating will be more beneficial to them than settling. If the firm were to advise this type of client to consider settling instead of litigating, the client could very easily walk out the door and go to another firm. Therefore, in circumstances like that, these firms will not consider using a process like collaborative law because they do not want to lose these important clients. In addition, some lawyers plainly do not want to use an ADR process because they enjoy representing their clients in an adversarial context.
However, my considered view is that lawyers that are skeptical about the process should realize that collaborative law may offers many benefits that the typical practice does not. At least from my theoretical point of view. Collaborative law is unique in the sense that it is one of the only processes in which two lawyers actually work together in the same room with their respective clients, striving to reach mutual goals through an agreed process that explicitly precludes litigation. The lawyers’ relationship with one another is a positive one because for once they are able to trust one another.And in the end, the parties are grateful for the assistance of both lawyers, another unique aspect of collaborative law
Is collaborative law the best option for everyone?
Collaborative law is an exciting new alternative to keep strained business relations (and family disputes for that matter) out of the courtroom, but certain aspects of the process raise some important considerations. For instance, could the disqualification agreement serve more as a burden on the client than a benefit? And some question whether the practice follows ethical standards; is the lawyer “zealously advocating” for his or her client and can we be sure a client has given actual informed consent to participate in the process? Others have suggested that mediation is a sufficient process, so collaborative law is not necessary.
Collaborative law may not be for everyone. For example, in family matters, collaborative law is probably not the appropriate process for a family violence victim to settle a divorce. In that situation, the decision of a judge would most likely afford that type of individual more appropriate protection and remedies. Sometimes people involved in a dispute need a judicial determination of a preliminary question of law or fact before they can proceed with any type of negotiation. This is not a problem; these individuals can agree to participate in collaborative law afterwards.
Secondly, Collaborative law is not for people who want revenge on their former spouse. If a client is vengeful, the process will most likely be ineffective because this client is not focused on collaboration or solutions. Collaborative law practitioners recognize that initially a client may demonstrate feelings of animosity towards the other party, but after a lengthy initial consultation, a trained collaborative lawyer should be able to decipher if the client would be an appropriate candidate for the process. Overall, if the parties place a high value on reaching an agreement and avoiding the adversarial pressures of contested litigation, collaborative law would be an appropriate choice as a dispute resolution process. Further, while it is accurate to say collaborative law may not be right for everyone, it is for most people.
Conclusion;
“The collaborative law movement presents an exciting opportunity for intentional development of legal culture, theory, and practice.” The satisfaction of the collaborative law clients will ensure collaborative law is recognized as a credible process. And in turn, the satisfaction of the clients reward the collaborative law practitioners and motivate them to continue advocating for the process. Therefore, with support, promotion, and effective practice by its advocates, collaborative law will no longer just have potential. It will become a main method to remove clients from the war zone of litigation and into a peaceful venue to resolve conflict. Many scholars and practitioners I met and had a chance to interact with believe collaborative law is an innovative new ADR process that should be utilized as the primary means for resolving disputes. In order for this to happen, there must be more effort by the legal and professional communities to promote the growth of the collaborative law movement.
I know this being a novel idea in Uganda, it might take time to take deep root, but we cannot ignore the global movement towards such methods of dispute resolution that would best serve our clients interests. Mediation has already taken root though supervised by court in most instances. In that we will be going back to basic tenets and ideals of the legal profession, being a service which will still earn the practitioner fees. However, practicing collaborative law requires judgment to see which case best suit the practice not all cases can be handled under collaborative practice. I hope this is an idea that can form part of our practice.
On a lighter note, I was nominated on the IACP Civil/Commercial sectoral committee on research, training and publication. I pray that with your support we can ignite the inevitable fire to spread like bushfire in the virgin lands of Africa as we rewrite history of our legal jurisprudence.
There is a file of hard copy of some of the resource materials and a folder on the network for soft copy of other reference materials that you might find of interest.
Thank you.
Arinaitwe Patson Wilbroad
(Member International Academy of Collaborative Professionals,USA
Monday, May 24, 2010
ADMISSIBILITY OF ELECTRONIC EVIDENCE IN UGANDA, IS IT ‘AUTHENTIC’?
Introduction.
Presently, most people around the globe use internet to send and receive instant messages, play on line games, download music and movies, share experiences and stories. Thus the internet undoubtedly provides a new vehicle for social connections and networking, linking people together without heed to geographic limitations. Yet despite all these benefits the internet has become a vehicle for criminals to meet their victims.
With increased reliance on technology in everyday life including transacting business, recreation and culture, individuals leave traces of criminal activity, concluded contracts and breaches and other correspondences, on their computer and on line. This raises questions as to the admissibility of such evidence given our present rules of evidence in Uganda under common law and statute.
During discovery, you assemble e-mails with all sorts of seemingly irrebuttable facts, computer records from which you can easily compute damages, and copies of Web pages from various sites that support your theory of the case. Your work is done; you are ready for trial. But are you? Will you be able to get all of that great electronic material admitted at trial? After all, in many cases, even if evidence is accumulated, it may be inconsequential if it becomes inadmissible at the trial.
This article will therefore discuss whether electronic evidence (particularly e-mails) from internet-based sources, social networks can be admitted under the Uganda’s evidence rules. There is little or no local material and case law on this subject. The author will traverse through the well known rules admitting evidence and discuss whether the same can be used in admissibility of electronic evidence. Specific emphasis to relevance, authenticity, and the best evidence rule.
Admissibility and relevance.
In order to successfully admit any piece of evidence, electronic or otherwise, a party must overcome three obstacles (1) authentication, (2) hearsay, and (3) the best evidence rule. The starting point was highlighted by Tsekooko, Ag.J ( as he then was) in Uganda vs David Kamugisha & Anor [1988-90] HCB 77 that the question of admissibility of evidence be it oral or documentary basically depends on whether it was relevant to the issue before court. Otherwise the court record would be filled with all types of evidence which was not sufficiently relevant and they might tend to prolong the trial unnecessarily because of immaterial matter. Among the exceptions was that affecting the credibility of a witness or impeaching his credit. Sec. 4 of the Evidence Act1states that only relevant evidence in respect of the existence or non existence of a fact in issue may only be given in any suit or proceedings. Thus all relevant evidence2 is admissible except as otherwise provided under the Constitution3 and Acts of Parliament4.
Would these rules apply directly to electronic evidence? In the neighborhood, Tanzania’s High Court has already pronounced itself on the admissibility of electronic evidence which has been followed by an amendment to their Evidence Act5. In the case of Trust Bank Ltd vs Le-Marsh Enterprises Ltd, Joseph Mbui Magari, Lawrence Macharia Commercial Court Case No.4/2000 (High court of Tanzania) court was called upon to rule upon as to whether electronic evidence was admissible as best evidence. Court ruled that the electronic evidence is admissible in Tanzania courts. This was a departure from the strict rule of best evidence rule. The judge stated that the court should not be ignorant of modern business methods and shut its eyes to mysteries of the computer. Subsequent to that decision, the parliament of Tanzania responded by enacting the Electronic Evidence Amendment Act, No. 15 of 2007 which made provision for the admissibility of electronic evidence in courts of law in Tanzania6. Ugandan Courts have not come out expressly on the admissibility of electronic evidence. This calls for searching within the existing legal regime to ascertain whether it is admissible7.
Authenticity.
Authenticity in evidence is what the party claims it to be, otherwise it is irrelevant. The test of authenticity is that the proponent must present “evidence sufficient to support a finding that the matter in question is what its proponent’s claims. A document may be authenticated based on
“appearance, contents, substance, internal patterns, or distinctive characteristics taken in conjunction with circumstances can provide sufficient indicia of reliability to permit a finding that it is authentic”8.
Consequently, the standard of authenticating electronic evidence is substantially the same as authenticating other documents9. It will usually take the form of testimony by an individual with direct knowledge that the produced evidence is what it purports to be
Authentication or identification should be a condition precedent to admissibility, and is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.
E-mail print outs should be admitted just like ordinary paper evidence with the foundation that the print out is what the person saw on the web after typing in a particular address. Other jurisdictions have so far gone ahead to draft rules of court and statutory rules in respect of admitting electronic evidence. In the American case of US vs Briscoe, 896 f.2d 1476 at page 1494-95 (7th Cir.1990), the federal court stated that a proper foundation for computer records is generally established if the party presenting the computer records,
“provides sufficient facts to warrant a finding that records are trustworthy and the opposing party is afforded an opportunity to inquire into the accuracy thereof and how the records were maintained and produced”.
Although authentication is a relatively low standard, in order to prevail, the proponent must be able to successfully show that the content of these social postings, e-mails are attributable to, connected to, and even authored by the defendant through the existence of direct or circumstantial evidence. The degree of authentication does not vary simply because a record happens to be (or has been at one point) in electronic form10.
Of course while the standard for admissibility of electronic records may not be extremely high, care should be taken to ensure that the records will withstand a challenge as to credibility. The authenticity of an electronic document would be stronger if,(a) Nobody but the author would be likely to put this type of information there, (b) The length of time the evidence was on the website; (c) The fact, if applicable that it is still on and can be viewed by the judge.
The party seeking the admission of an e-mail is not required to prove beyond doubt the accuracy of the record, rather, enough evidence required to satisfy the inquiry and shift the burden to the opponents to prove that the computer system is unreliable.
That notwithstanding, there various Challenges to authenticity of electronic documents which include; (a) Where the records are altered, manipulated or damaged after they were created, courts are skeptical of unsupported claims or alterations; (b) Reliability of the computer program that generated the records; (c) Identity of the author of the records- corroborate with circumstantial evidence; (d) There is a possibility of fabricating emails to create evidence of misconduct.
The authenticity of the email as evidence may be challenged by questioning if the evidence was altered or manipulated after they were created and this raises issues relating to the chain of custody of the evidence. However, it is my opinion that at this stage what the party seeking the admission of the document has to do is to establish a prima facie case for admissibility. This could be done by laying the foundation for admissibility. For instance by showing that the internet service providers may be able to retrieve information that its customers posted or emails that its customers sent. Also showing the reliability of the third party service provider in handling the records of the digital evidence. Mere authentication may not be enough. Compliance with the requirements of identification by no means assures admission of an item into evidence as other bars like hearsay, relevance may remain.
Laying foundation for the admissibility of electronic evidence;
For admissibility, there must be both proper authentication and a basis for admissibility as a non hearsay or under an exception to hearsay rule. If the author of the record (i) admits that he/she authored the document, (ii) admits that the document is true, (ii) is available for cross examination, and there is no hearsay, then the document is admissible. The proponent, however, must establish a foundation that the record was created and stored in such a way as to ensure reliability11. Indicia of reliability can include; (a) Validation of computer systems to ensure accuracy, reliability, consistent intended performance and the ability to conclusively discern invalid or altered documents; (b) Ability to generate accurate copies of records in both human readable and electronic form; (c) Protection of records to enable their accurate and ready retrieval throughout the records retention period; (d) Limiting systems access to authorized individuals, and use of authority checks to ensure that only individuals who have been authorized can use the system, electronically sign the record, access the operation or device, alter a record or perform the operation at hand.
The requirements of admissibility of e-mails in evidence were classically expounded on by United States of America Magistrate Judge, Judge Paul W. Grimm in the case of Lorraine vs Markel America Insurance. Co. 2007 WL 1300739 (D.Md. May 4, 2007). In that case involving contract interpretation issues, Magistrate Judge Grimm refused to allow either party to offer emails in evidence in support of their summary judgment motions. He found that they failed to meet any of the standards for admission under the Federal rules of evidence. The emails were not authenticated but simply attached to their pleadings as exhibits, as has been the common practice. Even though neither party directly challenged the admissibility of the other’s emails evidence, the court was not in position to consider emails, because no basis had been provided by the parties for admissibility or authentication. In Judge Grimm’s words,
“unauthenticated emails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence” [ emphasis mine]
He noted that courts have recognized that authentication of electronically stored information may require greater scrutiny than for the authentication of ‘hard copy’ documents. Judge Grimm further noted that there are many ways in which email evidence may be authenticated with the most frequent ways being, person with personal knowledge, expert testimony, distinctive characteristics including circumstantial evidence.He further laid down five evidence rules which must be considered, to wit;
Is the evidence relevant (does it have any tendency to make some fact that is of consequence to the litigation more or less probable that it otherwise would be).
If relevant, is it authentic (can the proponent show that the evidence is what it purports to be?)
If the piece of evidence that is being offered as evidence an original or duplicate under the best evidence rule, or if not is there admissible secondary evidence to prove the content and,
Is the probative value of the electronic evidence substantially outweighed by the danger of unfair prejudice such that it should be excluded despite its relevance?
He noted that the above rules may not apply to every exhibit offered into evidence. The opinion of US Magistrate Judge Grimm is not only a review of the requirement for admitting electronic evidence under the Federal rules of Evidence, but a practical discussion of some of the technology and documents management issues raised by those requirements such as the indicia of authenticity and data collection techniques. Once a communication ( letters, emails, web pages) is authenticated as having been created by the opposing party, it should be admissible for any purpose as non- hearsay12. This should be primarily in the context of admitting e-mails in evidence. This would make a logical sense to extend it to publicly available network websites that are in essence held out as public diary or accessible to those surfing on line.
Evidentiary weight of Electronic Documents.
Even if a record is authenticated and admissible, the court still must decide how much weight it should be accorded. The general rule with respect to authenticity of electronic records is that inaccuracies or suspicions of alterations of the records are an issue for the trial judge of fact to consider when weighing the evidence, not in determining its admissibility. Given that most electronic documents will be admissible for the same reasons as their paper counterparts, it appears that the majority of disputes will not be about admissibility but rather about what weight to accord to such records. So, does the fact that an e-mail record may be altered more easily than a written engender any special concern? Who will have the burden of proof as to reliability? In the American jurisdiction, in the case of US vs Young Bros, Inc 728 F, 2d 682, 693-94 (5th Cir, 1984) court rejected an argument by the defendant that computer records are inherently less reliable because of potential software and data entry problems13. Thus importantly, it is clear that electronic evidence is not deemed to be inherently less reliable or trustworthy than paper records. Thus in the absence of the specific evidence of tampering, allegations that computer records have been altered should go to their weight, not their admissibility.
The exclusionary rule/best evidence rule.
An oldest dogma of the law of evidence is that a party seeking to rely upon the contents of a document must adduce primary evidence of it14. Sections 6015 and 6116 and 6317 of the Uganda’s Evidence Act18 emphasis this best evidence rule. The perfect and the most common item is the original of the document itself19. In the case of Macdonell vs Evans20Maule.J states that what the best evidence is must depend upon circumstances. Thus when the subject of inquiry is the content of a document, no evidence is admissible other than the document itself except in the cases enumerated under section 64(1) of the Evidence Act21.The crucial question at this stage is whether printed out emails and other computer records qualify as original to satisfy the test of the best evidence rule. It is my submission that if data are stored in a computer or similar device, any print out or other output readable by sight, shown to reflect the data accurately should be regarded as primary evidence with in the meaning of section 61 of the Evidence Act.
Conclusion;
Creating and securely archiving and retrieving is a trial of the entire electronically stored information management process, from the steps of signing the record all the way through sealing electronically the document are examples of an effective electronic process which may enhance the overall persuasiveness of the hard copy of the electronic contracts and other electronic communications and emails. Emails and similar forms of electronic communications may not be properly authenticated with in the existing framework of rules of evidence in Uganda. Electronic evidence brings a unique baggage to the admissibility equation that we need to think through very carefully. Essentially the appropriate body will have to create a whole body of law to deal with electronic evidence.
© January 2008
1 Evidence Act Cap 6 Laws of Uganda Revised edition, 2000
2 Generally, all relevant Evidence is admissible. The most notorious bar to admissibility, of course is hearsay. According to Osborn’s Concise Law dictionary, 9th Edition, 2001,Hearsay is defined as a statement [either oral or written] other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
3 In respect to right to privacy and privileged documents.
4 The Evidence Act, The evidence (Bankers Books) Act etc
5 Tanzania evidence Act, 1967 section 40
6 Electronic Evidence Amendment Act, 2007 can be found in Miscellenous Amendement Act, No. 15 of 2007 available at http://www.parliament.go.tz
7 There could be situation where courts in Uganda have admitted such evidence without contest from the opposite party or court cautioning itself on its authenticity.
8 The admissibility of electronic Evidence in Court” Cybex initiative. A comprehensive study by Cybex; The Digital forensic company, supported by European Union; http://www.cybex.es/AG2005/news.htm
9 “The admissibility of electronic Evidence in Court” Cybex initiative. A comprehensive study by Cybex; The Digital forensic company, supported by European Union; http://www.cybex.es/AG2005/news.htm
12 Jon Neiditz; “From E- Discovery to E- Admissibility? Lorraine v Markel and What may follow”, Lord Bissel & Brook LLP. Information Management Practice. Available at http://www.lordbissel/.com accessed on 21st november, 2007, 13:25hours.
13 Similarly in the case of US vs Glasser, 773 F,2d 1553 (11th Cir.1985), computer print outs of transactions relating to mortgage bank accounts were admitted into evidence under the business records exceptions. However, there is no similar legislation in Uganda regulating electronic evidence to incorporate the business records exceptions. Perhaps the new bill in the offing by the Law Reform Commission should consider such provisions.
14 P.B Carter (1970); Cases and Statutes on Evidence, 11th edition, sweet & Maxwell, London, page 629
15 Sec.60 states that “The contents of documents may be proved either by primary or secondary evidence”.
16 That primary evidence means the document itself produced for inspection of the court.
17 Documents must be proved by primary evidence except in the cases mentioned under sec.64
18 The Evidence Act, Cap 6 Laws of Uganda, Revised edition, 2000
19 See; Macdonell vs Evans, (1852) common pleas 21 L.J C.P 141 Maule.J stated that, “it is a general rule… a party tendering a private document should give the best evidence. Generally the best evidence is the original document, which is primary evidence of its contents”.
20 ibid
21 See also; Prince J.D.C Mpuga Rukidi vs Prince J.D.c Mpuga Rukidi, Supreme Court Civil. App. No. 18/1994 in the judgments of Odoki J.S.C and Oder J.S.C in respect of admissibility of photocopies of documents under section 64 of the Evidence Act.
Monday, March 1, 2010
Collaborative Law and Lawyers in Peace Making: A Paradigm Shift in Dispute Settlement.
Introduction;
“The Courts of this country should not be places where the resolution of disputes begin, they should be places where disputes end-after alternative methods of resolving disputes have been considered and tried” Sandra Day O’Connor
“The Courts of this country should not be places where the resolution of disputes begin, they should be places where disputes end-after alternative methods of resolving disputes have been considered and tried” Sandra Day O’Connor
Abstract
The increased cost of litigation has not decreased the number of lawsuits filed each year. Even the economic recession has not helped. The majority of Ugandans probably have been or will be involved in a law suit at some point in their lives. They will be a party to a breach of contract, mortgage sale, will contest, land dispute, family dispute, or other legal action that requires legal representation. When disputes arise, most people do not realize that they have a choice in the manner in which their dispute is settled, and that there are several alternative dispute resolution procedures that are more efficient and economical than litigation . Collaborative law/practice is novel on the dispute resolution scene in Uganda, and many people are unfamiliar with the mechanics of the process. It is as different from litigation as day is to night. It is also different from other dispute resolution mechanisms like mediation and arbitration. This article will detail effects of litigation, the historical development of collaborative practice, how it operates, whether it is any different from other alternative dispute resolution mechanisms especially mediation and its distinguishing features, and the criticism levied on the practice. It will address the benefits of the collaborative law process for parties and lawyers and further look at challenges in applying it in Uganda’s context and the need for retooling the mind towards alternative dispute resolution mechanisms. It concludes with how collaborative law aims to become a main method for peacefully resolving legal disputes.
Do parties really need to go to court?
The psychological and emotional effects of litigation has resulted in the establishment of special courts like Industrial Courts to handle commercial, labor and tax disputes. There are also Family and Children Courts, Commercial Courts and Land Tribunals. These courts seek ways to end conflict, promote justice and cooperation between the parties. Nonetheless, the problem remains with the parties increasingly relying on others to craft solutions for problems “created” by one or more of the parties. Neither the litigants nor their lawyers are committed to seeking the best alternative for both parties. The result: litigants give control of their lives and businesses to others and are seldom, if ever, satisfied with the outcome . This adversarial process inherently focuses on “blame” in order to “win.” The end results find litigants giving control of their disputes to third parties and then being seldom, if ever, satisfied with the outcomes.
Most lawyers will tell you that they settle most of their cases. They will also tell you that settlement generally occurs on or near the day scheduled for trial after months filled with written discovery, gathering and examining documents (most of which are irrelevant), depositions, expert reports (if it is a complex matter requiring an expert), applications to compel, enjoin third parties, security for costs, applications to enforce, mediation, and the exhaustion of the clients’ patience and monetary resources.
If a case does go to trial and the client “wins,” there is often an appeal, then a stay of execution, sometimes an application for security of costs and everyone gets to start all over. So what does it mean to win in litigation? Is winning getting money even if it destroys any chance of an important ongoing business or family relationship? Is winning punishing the other side even if the final order does not correct the reason there was a loss or injury in the first place? Or is winning getting a piece of paper called a judgment when the defendant’s assets are “judgment” proof? What if winning could be equated to satisfying the interests of all of the parties as much as possible? When dispute resolution focuses on the clients' interests instead of "winning," there is a much greater opportunity for the parties to experience lasting satisfaction with the outcome. Until the interests of the parties are addressed, no one really wins, and there is frequently no lasting resolution .
Procedurally, the practice of litigation has become more complicated and more tactical. It is not uncommon for lawyers to use both delay, prolonged, and expensive litigation as strategies to help achieve a particular result for a client. To echo the words of Federal judge Justice Rosalie Abella, “we have moved from a society governed by the rule of law to being a society governed by the law of rules” . The vocabulary of battle is sprinkled throughout our professional exchanges and correspondences between lawyers, “stand duly warned”, “we have no option but to unleash the legal machinery”, “we shall coerce you by due process of the law”. A system that treats litigants as adversarial is destructive to future relationship, be it business or family. The legal process frames all problems as disputes and this encourages parties to battle instead of working together to resolve shared problems. Those wanting to work together fear that the system itself will make things worse, not better.
Being a competitive exercise, litigation proceeds by selective disclosure and tactical maneuver, mobilizing evidence and witnesses favorable to one side and suppressing or discrediting the ones favorable to the other. Particularly where clients are disturbed and vulnerable as in a divorce, the warrior's first instincts are to "throw up a perimeter" and fire off heavy rhetoric or onerous discovery to let the other side know they are in for a fight . We hear the client groan, but persuade him that it's for his own "protection," The tone thus having been set, the other side responds in kind. Differences between the parties are emphasized so as to eclipse areas of agreement. To the first offer of settlement the stout-hearted lawyer may say, perhaps over-protectively, "I wouldn't let my client agree to that."
The court system remains over-burdened, working hard to maintain “access to justice” while trying to modify procedures and rules to promote settlement. Most judicial officers especially in the High Court speak and encourage mediation. This has been followed by a pilot study on practice of mediation supervised by court. This has not yielded much but we cannot underestimate the results achieved so far. Sometimes it is the lawyers that frustrate the process waiting for the matter to be referred back to the judge. One advocate wanted to secure a date for a scheduling conference before the mediation started, reasoning that “in case mediation failed…” Such opinion, of course, shows little commitment to the process from the very beginning. Some lawyers who have called ADR (Alternative Dispute Resolution) as “Accelerated Degeneration of Revenue”
The lawyer's instinct to prove her/his zeal by adopting the client's positions and attitudes often leads to unrealistic expectations. Reality may not set in until trial looms or the liquid assets that might have provided a readjustment cushion have been consumed in the struggle. A hasty settlement in the corridors of the court house undermines any sense of control in the client, and increases the risk of drafting errors and hindsight. When the terms are less favorable than the client was prepared to expect, he may be subject to either party’s remorse. And the high emotions and unpredictable results of a trial carry their own risks of dissatisfaction. But don't clients hire fighters not settlers? A lawyer who like most, bills himself as a fighter is likely to attract clients who want to fight. When one's only tool is a hammer, everything looks like a nail. However, there will always be one who casts oneself as a settler of disputes and will attract a remarkable number of clients who fear getting enmeshed in litigation with its publicity and other attending effects.
Removing the element of adversary naturally disconcerts lawyers who have not learned other ways to resolve a clash of interests . Being accomplished in the use of the Civil Practice Rules to ferret out discoverable information or to preclude untimely claims and issues, one may feel unprotected or even helpless without those weapons in hand. But are they necessary to provide a client the essential benefits of legal representation?
What is Collaborative Law?
Collaborative Practice/collaborative law is the brain child of a Minneapolis lawyer, Stu Webb . In 1990 Webb was a jaded family law practitioner who “just could not take it anymore” . He disliked the adversarial nature of his practice. He was finding it harder to tolerate the schizophrenic nature of trial work and the incivility that seemed to be increasing . Webb had no desire to continue with family law litigation and was ready to quit practice. Instead of retiring he turned his mind to restructuring his practice. He concentrated on settling his family files and took of a favorite, settlement-oriented, colleague on the other side. As professional companions, they enjoyed working together and were usually successful in resolving their cases.
There came a case they could not settle. As both had been trained to do, they went to court, on their clients instructions. The end result was disastrous for Webb’s working relationship with his colleague . Pondering what happened, Webb came close to locking his office door and walking away. However, he decided he had nothing to lose by continuing to practice and telling his clients that his role would be limited to settlement and if the case could not be settled, they would have to hire a new lawyer to take their case to court. On 1st January 1990, he began his Collaborative practice to save his clients from soul destroying litigation and to make his practice fun again.
As Collaborative Practice began to develop, it became clear that collaborative practitioners should work together to promote and improve the process, which was still in infancy. In mid 1990s, California collaborative groups began to meet monthly. Out of their vision to form an umbrella networking organization to serve collaborative practice in many forms, the American Institute of Collaborative Professionals (AICP) was born. By 2000, Collaborative Practice was developing exponentially across Canada, and to reflect its international reach, the name of the organization was changed to the International Academy of Collaborative Professionals. The IACP now boasts of membership across the globe, especially USA, Canada, the United Kingdom, Australia, New Zealand, South Africa, and Uganda. Uganda now has around eight lawyers who have been trained in Collaborative Practice under the auspices of Collaborative Professionals from USA .The extensive history of IACP is chronicled on the IACP website; www.collaborativepractice.com.
The practice started predominately in family matters, especially divorce. However, it has since evolved to encompass civil and commercial disputes, among others. Collaborative practice is about cooperation, not confrontation. It has been described as “Law without litigation”, “Mediation with advice”. It is a way of solving problems with lawyers assisting the parties to understand each other’s perspective. The clients are responsible for information gathering and for generating options to provide solutions. The most fundamental characteristic of the process is that it creates a safe environment in which each party can work successfully toward achieving his or her goals. Each party and their collaborative professionals acknowledge that the essence of Collaborative Law is the shared belief that it is in the best interest of the parties and their families to avoid adversarial proceedings, to commit themselves to resolving their differences in a manner that is empowering with minimal conflict, and to working together to create shared solutions to the issues. This process relies on an atmosphere of mutual respect, honesty, cooperation, and a commitment to maintaining a safe environment, with the objective of ensuring the continued good business relationship for commercial entities and future well-being of the parties and their children in the case of family disputes.
The lawyers and other professionals are trained to guide and assist the clients to engage in interest-based negotiation to generate options that are future focused and to prevent the process from becoming weighed down by issues of blame and the purely legal “rights” of each party. The Collaborative Process is based on team work, full disclosure, honesty, respect, civility, healing, integrity, parity of costs, exploration of alternatives to determine a fair resolution, and parties maintaining control over the results. If this sounds like fantasy, hold on because this is only the beginning.
The goal of Collaborative Law is to maximize the settlement options of all parties, to increase the abilities of the parties to communicate, and to minimize the potential negative economic, social and emotional consequences which are the by-products of the traditional adversarial court process. The important difference between Collaborative Practice and conventional litigation is the commitment to reach an agreement without going to court. The parties maintain control of the process and the decisions instead of relinquishing them to a judge. To reach this goal, the parties with the help of their lawyers agree not to seek court intervention by committing to stay in the negotiation process and focus on settlement by design from the outset. The High Court came up with the mediation process before trial. However, much as some cases have been resolved, a cross-section of lawyers attend mediation as a procedural requirement, waiting to agree to disagree so that the matter can be referred back to the judge. This has not helped in as far as parties being committed to the mediation process are concerned. It is still seen as a court manned process not any different from scheduling or other court processes. The process in outline is as follows; (a) each client is represented by their respective lawyer/advocate throughout the process. (b) The lawyers stand in the role of “ally” to their client and seek to advance their interest. (c) Both lawyers help the client and the other party work as a team to: find and focus on clients’ common interests; understand each other’s concerns; exchange information; explore a wide range of possible choices; and reach solutions acceptable to both of them.
The Collaborative Process
The Collaborative Process is voluntary and cannot be court ordered, so all parties and lawyers must agree to participate. Once the process has been agreed upon, the parties to the dispute and their collaboratively trained lawyers sign a participation agreement that sets out the guidelines to be followed during the process. Since collaborative lawyers will never represent the collaborative parties in court, they are able to focus all of their skills on the interests of the parties and resolution of the dispute rather than dividing time and energy between trying to settle and preparing for trial. This concerted effort allows disputes to be settled months, sometimes years, earlier than settlements that occur on the courthouse steps or corridors.
The collaborative approach redefines good law practice as analysis, clarification, and negotiation. It is the ability to utilize skills seldom seen in litigation. Collaborative lawyers do not rely on taking advantage of the other sides' mistakes and oversights, nor do they seek to avoid revealing the entire truth of the matter in dispute. Power plays or similar tactics are all unacceptable in the collaborative approach.
The actual resolution of the dispute takes place in a series of two to three hour long, face-to-face meetings of the parties and their lawyers. Each meeting follows an agenda that the participants receive in advance of the meetings, and no decisions are made regarding the actual dispute outside the presence of the parties.
Step One
The first step determines the interests and goals of all of the parties. The parties have an opportunity to state what they want and, perhaps more importantly, why they want it. Each party also has the opportunity to hear the goals and interests of the other parties from the mouths of the parties instead of having messages channeled through lawyers. This saves time and eliminates misunderstandings, confusion, and any “spin” that frequently accompanies hearsay.
Since the parties are required to state the underlying basis of their concerns, they must consider their interests and goals more carefully rather than simply make demands that have no basis in anything remotely related to reality as opposed to positional bargaining which is the primary tool used for negotiations in the litigation process. The goals of positional bargaining are for the plaintiffs to get as much as possible, whether the amount is deserved or not, and for the defendants to pay nothing, or as little as possible, whether they are liable or not. In the collaborative process the participants examine the facts of the dispute and use interest based negotiation to work toward an agreement that is equitable for all of the parties.
Step Two
Determining interests and goals also lets the parties have a much better idea of the documents and other information that must be collected to intelligently approach resolution of the dispute. The second step of the collaborative process is the task of actually gathering the necessary information.
Parties and their lawyers agree to request the production of only those documents relevant to the dispute. Participants also agree to voluntarily comply with requests for delivery of information. Some disputes will require an expert opinion. In those instances, the parties may agree to jointly employ a single expert. The use of a single, objective, expert opinion will provide the parties with accurate, unbiased information and reduce the cost of the expert’s fee.
Step Three
The focus of the face-to-face meetings is now ready to advance to the third step which is the development of as many options as is reasonably possible. Brainstorming options will lead to out-of-the-box thinking that will result in opportunities for formulating creative solutions. The entire collaborative process is confidential, so parties are free to engage in speculation and conjecture without fear that their words will later be used against them.
As the parties explore possibilities, they should be encouraged to concentrate discussions on the future. When negligence is an issue, responsibility for damages must be discussed; however, the lawyers should direct the discussions to the actions of the responsible party and avoid judgmental personal attacks. Casting blame or finger pointing is, at its very best, nonproductive. Apology sometimes becomes a part of the collaborative process, but an apology should never be offered unless it is a sincere expression of regret.
Every option the participants suggest should be listed on a white board, overhead, or some type of media that is able to be viewed by all of the participants in the face-to-face meetings. Some options may seem unrealistic or one-sided to one party but not to another; nevertheless, all options should be listed and none evaluated until the next step of the process. What may seem unrealistic at first glance may later be part of the solution.
Step Four
Once the parties are satisfied that they have developed a comprehensive list of options, they will evaluate the options and discard any that are inappropriate. The parties may find that an option must be modified or combined with other options in order to achieve their goals. During this fourth step, it is hoped that each party will become comfortable with opposing lawyer; however, it is very important that clients understand that although this is a collaborative approach, the parties must not rely on anyone but their own lawyer for legal advice.
Step Five
The final step of the Collaborative Process is the negotiation of a resolution which takes each party’s interests into consideration. This is made possible by following the steps in the process and systematically working through the elements of the dispute. Options are discovered and solutions are explored that would never have been mentioned or considered in the litigation process.
Parties should not expect the Collaborative Process to be a series of calm, subdued tea parties. The face-to-face meetings may involve lively discussions and arguments; however, the arguments will be based on the issues in dispute and will not consist of personal attacks and unreasonable demands. Collaborative lawyers I interacted with intimated that they have found that the Collaborative Process involves harder work than litigation since the lawyers are not free to stomp out of the room shouting, “I’ll see you at court.” When the going gets tough the collaborative lawyers must stay the course and work even harder to assist the parties in finding more and better options for resolution. All the four-way meetings in the Collaborative Process always follow the same steps: Identify what is important to each client (interests); Identify what questions the clients need to answer; gather information; create the maximum number of choices; evaluate the options and modify and refine them; negotiate an acceptable agreement; and, closure.
The Collaborative Process will not be suitable to every client or for every dispute. It is simply another tool available in ADR. One significant advantage is that it allows the parties to generate options for the solution of issues between them that would not be available through the court process. Further, the clients choose the outcome in a process where they have control.
No Court or other Adversarial Intervention
By choosing to employ a Collaborative Law process, parties commit to settle their matter without adversarial involvement. They agree to give full, honest and open disclosure of all information, whether requested or not, and to engage in informal discussions and conferences to settle the dispute. Parties agree to cooperate in obtain information from accountants, employers, pension and profit sharing plans, as well as any other documents relevant to the process.
Parties agree that a Court Order may be necessary to acquire information which cannot be obtained by releases. This process anticipates the preparation and filing of the necessary court pleadings to effect the provisions of the agreements and complete the process.
Participation with Integrity
Participants and professionals agree to work to protect the privacy and dignity of all involved in this process. Each participant will maintain a high standard of integrity and demonstrate respect for the needs and concerns of the other. Specifically, participants shall not take advantage of the other participants, nor of the miscalculations, misperceptions, or mistakes of others, but shall identify them for correction.
Roles of Collaborative Professionals.
The first strategic objective of professionals working in a client-centered process is to raise clients’ awareness of the direct connection that exists between success in achieving their macro goals and their behavior throughout the process. In contrast to the adversarial approach, advocacy in a client-centered model becomes advocacy for the process rather than advocacy for a position. “Feeling safe” is no longer some abstract concept; it becomes the clients’ experience of an environment and a process that is transparent in all its aspects: communication, information development, transitional decision-making, option development, consequence evaluation, bilateral negotiation, and resolution.
In a client-centered process, the identification of these types of shared, macro goals becomes a critical primary task. A macro goal is an outcome objective that is held by the parties and is so big as to seem simplistic and obvious. At the outset of the process when the clients are typically anxious and skeptical, the simple act of having each of them acknowledge these core goals establishes a positive tone and powerful criteria for all that follows.
These macro-goals establish benchmarks against which all subsequent actions may be measured. Either the clients engage in the process in a manner that moves them closer to the attainment of those core goals, or their actions take them further away. If the process structure and applications have been strategically designed to give clients every opportunity to achieve those goals, then one of the most important aspects of a client-centered process has been achieved: highlighting the responsibility that the clients bear for the success of the outcome. They can choose to act strategically with the support of the process and the professionals, or they can allow their emotions to drive their conduct, with the predictable chaos that results.
Client-centered means that the process is of the clients-- its primary objective is to identify the shared goals of the parties, i.e. their macro goals; about the client—it helps the parties articulate and define their concerns and interests in a manner that enhances the likelihood of their achieving their macro goals; for the clients—it requires that the clients be educated regarding the cause-and-effect relationship between their goals and their behaviors while the process is in progress. The process adapts to client need, rather than unilaterally requiring that the clients adapt to the process.
Each party is entitled to select the participating lawyer, financial professional of his or her choice or any expert relevant to the dispute. The parties will jointly select financial professionals if needed.
The lawyers’ roles are to provide a safe environment and an organized process that will assist the parties to reach mutually acceptable agreements. The lawyers help the parties to communicate with each other, identify issues, collect and interpret data, locate experts, ask questions, make observations, suggest options. They will also help the parties express their needs, goals and feelings, check the workability of the proposed solutions and prepare and file all written paperwork for the court. Although collaborative lawyers may be members of a collaborative group, each lawyer is independent from the other lawyer and has been hired by only one party in the Collaborative Process.
In divorce and other family disputes, the role of the mental health professional is to assist the parties in dealing with the psychological and emotional aspects of the ending of the relationship, the divorce transition, and in preparing for the post-divorce relationship period. In addition to acting as coaches and facilitators, they can assist in creating the framework for successful parenting relationships and strategies. Collaborating Mental Health Professionals may be employed by each of the parties, any of the parties, or the parties together.
The role of the financial professional is to assist parties to understand both the financial and tax ramifications of settlement decisions, which will better enable them to reach an agreement which maximizes the financial resources in a manner acceptable to each party. Financial professionals may serve in many helpful capacities: as independent managers with whom the parties contract to organize the gathering of all relevant financial information; as experts to analyze cash flow and financial records used in the determination of support; and as experts in the valuation of business interests, employment benefits and retirement assets.
Roles of Parties
The parties are in charge of the process and responsible for its outcome. The essential role of the parties is to embrace the principles and guidelines of the Collaborative Process and to actively participate in the application of these principles. In so doing, the participants commit themselves to allowing each party participate effectively with autonomy, freedom and respect. Critical to achieving success is the goal that each party feels safe in the process. One’s individual protection comes from the fact that each party must give consent to every aspect of the process. Each party agrees to refrain from taking unilateral action that would directly or indirectly affect the interests of the other without express consent. The parties commit themselves to work constructively. Most importantly, it is the parties who are responsible for the resolution of the disputes and the final agreement.
Boundaries of the Collaborative Process
The Collaborative Process represents an opportunity and not a guarantee. It is essential for the parties and the collaborative professionals to operate in good faith, and with honesty and integrity if the objectives of the process are to be realized by the parties. A prerequisite to realizing these objectives is the establishment of a process which each party finds safe. To that end, the parties agree to honor the personal and process boundaries of one another. These include, but are not limited to psychological, emotional, relational, and physical boundaries.
It is understood that collaborative professionals may withdraw from a case as soon as possible upon learning that the other party has withheld or misrepresented information and failed to immediately correct the mistake, or otherwise acted to undermine or take unfair advantage of the Collaborative Law Process. Examples of such actions include secret disposal of property, failure to disclose assets, debts or income, taking assets out of jurisdiction, dilatory conduct of either party, abuse of minors or plans to flee with the children in a marriage dispute.
Termination of Collaborative Law Process.
Either party may unilaterally and without cause terminate the Collaborative Law process by giving written notice to the other party and lawyers. The parties do not waive the right to seek assistance of the court. However, any resort to adversarial court action automatically terminates the Collaborative Law Participation Agreement signed by the parties and their Collaborative professionals.
The lawyers’ representation of the parties is limited to the Collaborative Law process. No lawyer representing a party in the Collaborative Law process can represent that party in court in any proceeding against the other party subject to the collaborative process. In the event the parties choose to proceed with the adversarial method, using the procedures of the court and the legal system, both lawyers are disqualified from representing the parties and shall immediately file Notices of Withdrawal. If the lawyers have not formally appeared as the lawyers on record for the parties, they shall otherwise terminate their relationships with the participants.
In the event that the Collaborative Law process terminates, all experts will be disqualified as witnesses and their work product will be inadmissible as evidence unless the parties and the collaborative experts each agree otherwise in writing. However, if the Collaborative Process is terminated, parties are likely to incur additional retainers for new lawyer and their matter may be delayed while new lawyers become familiar with our case.
Disqualification/withdraw of the Lawyer.
Lawyers may withdraw at any time for any reason during the process. The withdrawal of a lawyer does not necessarily terminate the Collaborative Law process. If the lawyer for either party withdraws, the lawyer for the other party may continue to represent that participant in any ongoing negotiations or processes, so long as the matter remains outside the court system.
If the party whose lawyer has withdrawn continues without a new Collaborative Lawyer, the case may continue using collaborative principles and practices. However, the case will no longer be governed by the Participation Agreement signed by all parties at the outset of the Collaborative Law matter, as the process requires two trained lawyer representing the parties to the dispute. In the event that the participant whose lawyer has withdrawn retains another trained collaborative lawyer, the parties agree to re-execute the Participation Agreement in order to have all parties governed by its terms. “Whether an attorney withdraws as a matter of right, or because of a disqualification because of a court intervention, the withdrawing attorney shall provide the participant with all pleadings, signed agreements, and any financial records which had been provided by the parties. File notes, correspondence and all communications between the parties and professionals shall remain confidential”.
Parties should not expect the collaborative process to be easy going. When the going gets tough, the collaborative lawyers must stay the course and work even harder to assist the parties in finding more and better options for resolution.
Is the disqualification clause a burden on the client?
The most controversial aspect of collaborative law is the disqualification clause. Critics of the collaborative law process in USA claim the disqualification agreement is actually a burden on the client. If a client decides he or she wants to terminate the collaborative law process, the client not only has to find new representation, the client also has to find all new experts to participate in the litigation process . Termination will result in an increase in cost and time for the client. In addition, clients will no longer be able to work with the lawyers they invested trust and time in . Therefore, in order to avoid the burdens of termination, the client could feel pressured to accept agreements that may actually not be in his or her best interest .
Despite the potential burdens, the disqualification agreement is a significant external incentive for the lawyers and parties to settle . If the parties reach impasse in traditional negotiations, lawyers who are not barred from taking the issue to court usually decide quickly what should be done. One reason for this behavior is the financial incentive to go to court; lawyers receive more money from their clients if the clients decide to litigate because it requires more time and work. Therefore, some lawyers may push their clients into litigation in order to make extra money . The disqualification clause helps to ensure that the lawyer is advocating for the client’s best interests, and not what will make the lawyer the most money .
If a client does not want to take a chance on agreeing to the disqualification clause, “cooperative law” is also an option. This facilitative process is similar to collaborative law because it involves four-way meetings between the clients and their respective lawyers. Procedurally, the two processes are about the same, but the major difference is the lack of the disqualification agreement. However, I wonder if the incentive to settle is really there if the lawyers and clients know they can resort to litigation at any time? Will the parties really work as hard to come up with a creative solution if they know they can always go to court? The bottom line is that the risk of litigation will always be present in cooperative law.
The disqualification clause creates powerful incentives to search for a reasonable solution without litigation. In the long run, working longer and making concessions in order to reach an agreement will almost always be in the best interests of both the clients and anyone whose life is affected by the relationship. The clients will walk away from the process knowing how to reasonably resolve future issues with one another. This will hopefully help prevent any subsequent legal battles between them. The disqualification clause aims to help the clients and their attorneys create a mutually beneficial settlement that will help the clients preserve a peaceful relationship.
However, there is a well founded view on the challenge of disqualification clause in collaborative practice. One author observed that “an attorney is unlikely to sign away to an adversary the ability to decide when the attorney’s representation of her client ends” . That indeed few corporate lawyers would appreciate amassing time and expenses of preparing for collaborative session only to have the opposing side prematurely withdraw, leaving all other lawyers unable to continue in their representation of their clients. Secondly some lawyers are paid on contingency fee structure, thus failure to reach a settlement in the collaborative law session could leave a contingency fee lawyer without a penny for his efforts.
Thirdly, considering and recognizing that civil litigators may have fewer, more long–term relationships with their clients, disqualification agreements would threaten those relationships by allowing another lawyer or law firm to take over a client’s case, if it failed to settle. And civil litigators are likely to resist opening the door to their competition. Thus the fear of break up as a result of disqualification clauses might keep both corporate lawyers and corporate clients away from the collaborative practice. The question that calls for more enquiry is whether or not collaborative law can be wholly embraced by the corporate world with the withdraw clause? Does it call for an amendment? The debate shifts from Texas to Kampala.
Temporary Agreements.
In order to provide each party with a feeling of safety and security, without which full commitment to the Collaborative Law process is impossible, some temporary agreements may be necessary and that those may even include mutual restraining agreements or orders. The parties agree to work in the collaborative process to reach those agreements to allow all parties to proceed with safety and security while permanent agreements are negotiated. If either party feels the need, temporary agreements may be entered as temporary court orders and that the filing of such temporary agreements shall not be inconsistent with the commitment to work without the intervention of the court system.
Confidentiality
All discussions among the parties, notes written in conjunction with those discussions, and communications between the participants and the collaborative professionals are deemed settlement discussions and cannot be offered as evidence in any subsequent proceedings between the parties. Pleadings, financial records of the relationship, and written agreements signed during the process are not covered by the confidentiality provision and will survive the termination of the Collaborative Law process. The collaborative process will not create confidentiality for any documents which would otherwise be discoverable under Civil Procedure rules. Any documents created for the collaborative process (settlement proposals, schedules, summaries, etc.) for the purpose of facilitating settlement discussions and negotiations, shall be deemed confidential and cannot be introduced in any subsequent court proceeding without the express written consent of all parties.
In signing the Collaborative Law Participation Agreement, all parties and Collaborating Professionals pledge to comply with and promote the spirit and written word of these Principles and Guidelines. These are the guidelines of the collaborative process which can be adopted visa avis our commercial court mediation rules.
How is collaborative practice different from mediation?
Many mediators and collaborative law practitioners I met in USA were of the opinion that; reasons for preferring Collaborative Law are almost always described in terms of ‘doing better,’ including reducing the risk of getting a bad deal or simply giving away too much, and equalizing what they otherwise regarded as an uneven negotiation.” The collaborative lawyers explained that they believe their coaching and facilitative skills are necessary to ensure their clients’ needs are met, but in a mediation setting, the lawyers are not encouraged to use those skills. It has been said that there is some “sibling rivalry” present between mediation and collaborative law, but efforts are being made to build a better relationship between the two processes because they are important alternatives to litigation. Mediation takes the dispute out of the courtroom and aides the parties in creating their own settlement agreement. In mediation, the parties work with a neutral third party to resolve their disputes . Mediation promotes good communication between the parties, and encourages the parties to create their own solutions. If mediation is already accomplishing the aims of collaborative law, why adopt an additional approach?
Collaborative law practitioners are not mediators. A mediator is a neutral third-party and collaborative law practitioner is an advocate. Under the Uganda court system, especially the High Court, registrars who double as mediators since they work directly with the clients, while the lawyers are present during the mediation process, they are limited to “advising from the sidelines.” Therefore, it is likely that the parties participating in mediation will go into the process alone, and the mediator will guide both parties through the settlement process. Collaborative law provides the client with an advocate during the settlement process that he or she may not have in mediation. However, Gay Cox , one of the re-known collaborative practitioners in Texas, highlights some of the challenges of collaborative practice. She states that;
“The field is challenging and intellectually stimulating. The practitioner is exercising many skills-conflict resolutions, coaching, counseling, advising, speaking persuasively, listening, empathizing, being assertive, drafting, researching, etc. A four-way meeting is like an improvisational drama production where you, as one of the lawyers, are a co-director. You are always ‘on’. You learn to function as a member of a team. You learn when to let go and be silent, allowing others to take the lead. You find that you must relinquish control of and to your client. There is no virtue in being one who ‘is in control of his/her client’ (a statement often made in praise of litigators). You come to appreciate that the lawsuit belongs to the clients, not to you. It is only important that they are satisfied with the outcome. You affirm their right to do what they feel is right even if it is beyond what the law would require. The only limitation is that you will not be a party to breaking the law. With this comes the peace of mind that the burden of being primarily responsible for the outcome is lifted from your shoulders. It is the client's life and they will live with the consequences of their choices, knowing that they have an avenue-the collaborative law process-to address future disputes”
Unlike mediation without the assistance of lawyers, clients in Collaborative Law can have as much hand-holding as they want. They get the benefit of the lawyer's investigative and analytical skills in detecting any possible fraud as the facts are assembled. They get sound real-time advice in setting goals and skilled help in negotiating. And it all proceeds at a pace not dictated by the "hurry up and wait" demands of a court calendar, so the parties have time to reality-test each other's proposals, and to get comfortable with their deal before signing it. The main difference from litigation is that the lawyer's advocacy is focused on persuading the other party rather than a judge .
Is the collaborative process the right choice?
Collaborative practice is an alternative dispute resolution process that has many advantages. Both clients have skilled legal advisers at every stage of the process. Both lawyers understand how to reach creative settlements. The client is never “on his/her own”; the lawyer is at the client’s side, advising and assisting the client to achieve goals by mutual participation in the process and to achieve agreement.
Both clients and their lawyer agree in advance to work only towards a settlement acceptable to both clients. Thus litigation cannot be threatened. Neither party will be permitted to “play games” or take unfair or improper advantage of each other or to misuse the process. The lawyers share with their clients a financial incentive to make the collaborative process work. The lawyers have not succeeded unless they help clients create a mutually acceptable solution. As with all good faith negotiation, some compromise is required from each side. An outcome that both parties are satisfied with notwithstanding that they have compromised is a “win/win” result. The lawyers are “out of a job” if the process breaks down. Neither lawyer can go on to represent the client if the collaborative process fails. The lawyers are concerned about the process as well as the outcome. Clients and lawyers work together as the members of a settlement team, rather than working against each other as “opposing parties”.
Observations by experienced collaborative professionals
The disqualification agreement may not promote collaborative negotiation in some cases. A disqualification agreement is not necessary or sufficient to promote collaboration. Some Collaborative Lawyers struggle to collaborate even with a disqualification agreement and many people negotiate quite well without one.
Although the disqualification agreement can be helpful, it also can create problems. Some parties will not use a process that jeopardizes their continuing relationship with their lawyer – and that effectively gives their adversary the power to fire their lawyer. The disqualification agreement also creates a risk of significant settlement pressure. After investing substantial time and money in collaborative negotiations, clients may feel stuck in the process because they feel economically or psychologically unable to hire a new lawyer to litigate when it might be in their best interest to do so. This might also be problematic where there is a culture of corporate bodies hiring attorneys on retainer basis.
From the experience of attorneys who have adopted this mode of dispute resolution, dispute resolution professionals have had a hard time getting people to use an interest-based approach in negotiation, instead of a positional approach. ADR 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. With Uganda’s common law background and its adversarial nature, there is a likelihood of the same hiccup emerging.
Virtually Collaborative Law developed and is predominately practiced in family matters, despite great efforts to promote it in other disputes, especially civil and commercial matters. There are many reasons why the disqualification agreement creates a greater barrier in civil/commercial cases than family cases. Civil cases often have more money at stake, there is often a stronger relationship between lawyers and clients, and there often are weaker reputation pressures to make sure that lawyers act collaboratively. Civil and corporate lawyers would be especially reluctant to see cases go to their competitors if they do not settle in Collaborative Law. When a lawyer is hired on contingency fee basis, a disqualification agreement creates additional problems. Also in divorce matters, it may not work in Uganda where parties should not be seen negotiating divorce or colluding with each other.
It was observed at the 9th Annual IACP forum in October 2008 in New Orleans USA that some large law firms in USA tend to put ADR processes on the back burner. This might be a hindrance in Uganda as well should the practice be adopted. It was observed, for example, that in a large firm in US or UK where billable hours is a main priority, the lawyers want cases that go to trial because they are guaranteed more hours. It cannot be denied that a firm will accumulate more billable hours if their lawyers spend a majority of their time litigating than if they were practicing collaborative law. Some larger firms work with big clients who believe that litigating will be more beneficial to them. If the firm were to advise this type of client to consider settling instead of litigating, the client could very easily go to another firm. Therefore, in circumstances like that, these firms will not consider using a process like Collaborative Law because they do not want to lose these important clients. In addition, some lawyers plainly do not want to use an ADR process because they enjoy representing their clients in an adversarial context.
Nevertheless, my considered view is that lawyers who are skeptical about the process should realize that Collaborative Law may offer more benefits than the typical practice does. Collaborative law is unique in the sense that it is one of the only processes in which two lawyers actually work together in the same room with their respective clients, striving to reach mutual goals through an agreed process that explicitly precludes litigation. The lawyers’ relationship with one another is a positive one because for once they are able to trust one another.
Is Collaborative Practice the best option for everyone?
Collaborative law is an exciting new alternative to keep strained business relations and family disputes out of the courtroom. But certain aspects of the process raise some important considerations. For instance, could the disqualification agreement serve more as a burden on the client than a benefit? The question is whether or not the practice follows ethical standards; is the lawyer “zealously advocating” for his or her client and can we be sure a client has given actual informed consent to participate in the process? Others have suggested that mediation is a sufficient process, so collaborative law is not necessary.
Collaborative law may not be for everyone. In family matters, for example, collaborative law is probably not the appropriate process for a family violence victim to settle a divorce. In that situation, the decision of a judge would most likely afford that type of individual more appropriate protection and remedies. Sometimes people involved in a dispute need a judicial determination of a preliminary question of law or fact before they can proceed with any type of negotiation. This is not a problem; these individuals can agree to participate in collaborative law afterwards.
Secondly, Collaborative law is not for people who want revenge on their former spouse or business partner. If a client is vengeful, the process will most likely be ineffective because this client is not focused on collaboration or resolution of the dispute. Collaborative law practitioners recognize that initially a client may demonstrate feelings of animosity towards the other party, but after a lengthy initial consultation, a trained collaborative lawyer should be able to decipher if the client would be an appropriate candidate for the process. Overall, if the parties place a high value on reaching an agreement and avoiding the adversarial pressures of contested litigation, Collaborative Practice would be an appropriate choice as a dispute resolution process. Sometimes you will meet someone who is just determined to have their day in court, and you will know immediately that collaborative law is not for them. But when people realize it does not have to be knives at dawn, it might be the option for them .Further, while it is accurate to say collaborative law may not be right for everyone, it is for most people.
Questions to ponder about
One of the questions that have bothered me in the research for this paper concerns the ability or inability of the facilitation process to enforce agreements without use of the law. If two parties agree to resolve their dispute without using the process of adjudication, and if they come to an agreed upon settlement, who will enforce it if there is no legal document? Unfortunately, the days are gone where 'men of honor' would settle with the handshake or in front of one witness . So if the ground on which the concept of law has grown up is accountability, who will hold these two parties accountable? What if the settlement was wrong or broke some constitutional or criminal law? There may be honor among thieves but is this the appropriate justice or the pursuit of truth that facilitation and adjudication value?
I have pondered over other questions: Can the legal system make more room for alternative styles of conflict resolution? Will lawyers and judges embrace the validity of alternative dispute resolution with the same tepidness that nurses and doctors had for alternative medicine years ago? Is it inevitable that facilitation and its varied approaches to managing conflict has so impacted the legal system that there is no turning back? What about the development of public laws and issues of morality? Can facilitation handle the complexity of law making? Why is law so complex in the first place? These questions are still unanswered in my mind. However, reading several court cases where the only justice done is a financial gain and the only truth sought is who is to blame or who the winner is, I am looking for something better than just the legal system. One further question leads into my conclusion: Does spirituality or religious norms play a role in the adjudication or facilitation processes of dealing with conflict? A great friend of mine, my trainer, a lawyer and collaborative professional, Gay Cox, sent me a message about the speech she gave at the State Bar Spring Conference in USA in March 2009. It sums up spirituality and conflict resolution; “I quoted Jesus' words in Matt. 5:25-26 and ended with "So, if you were going to be dedicated to a cause what better cause than transforming the way the world resolves conflict. In my spirituality, this would be what it means to be in the Image of the Divine, to be a peacemaker and thus be called a child of God." This is synonymous with what the Principal Judge in Uganda, Justice James Ogoola, stated at the Symposium, “Come Let Us Reason Together” , organized at Hotel Africana on 18th April 2009, where a lawyer is seen as a peacemaker rather than an a fighter.
Mind Shift
Lawyers interested in the Collaborative Process must be trained and, to be effective, must experience what is referred to as a “paradigm shift.” Making the paradigm shift requires 180° shift in thinking from litigation to Collaboration. One example of a shift in the lawyers’ behavior is the lack of reliance on the law to dictate the outcome of the dispute. Clients are privately advised of their legal rights, but discussions about the law are replaced with discussions regarding the interests and goals of the parties in the face-to-face meetings. Constant references to the law will only serve to stifle or limit creative thinking. Parties may resolve their disputes in any manner that they agree on so long as the solutions are not illegal or against public policy.
Some parties and lawyers will find it difficult, if not impossible, to agree to voluntary disclosure of all relevant information. Some lawyers will protest that their clients will object to their withdrawal if the case does not settle. People with these attitudes probably do not belong to the Collaborative Process. The Collaborative Process is a many faceted opportunity to avoid and to settle disputes. By using the process in drafting agreements, parties are able to anticipate and prevent many pitfalls that could later result in expensive conflicts.
Areas of the law which can benefit parties by early use of the process to negotiate legal documents include, but are not limited to, construction contracts, partnership agreements, pre and post nuptial agreements, buy-sell agreements, estate planning documents, and employment contracts, mortgage contracts, land disputes and international trade contracts. Parties having disputes in practically any area of the law and are willing to go forward honestly and in good faith can take advantage of the collaborative opportunity to settle their disputes privately and remain in charge of scheduling and costs. While litigation destroys ongoing relationships, the Collaborative Process can be a bridge to a redefined relationship between the parties and, in addition, act as a model to resolve future disputes. Disputes belong to clients not their lawyers. Consequently, clients should have the opportunity to choose how they want to resolve their disputes.
Future of Collaborative law World wide
Business executives and professionals are beginning to realize that costly and time consuming litigation does not need to be the first option for resolving disputes, especially with the recent global economic recession. Light bulbs are starting to light up in law firms and corporate executives’ offices only that it takes a shape of cost-cutting in the form of cutting down fee notes. But would this stop disputes from arising? The Collaborative Practice may be the business imperative of our time. Interest-based negotiation, as opposed to positional bargaining, really captures the exponential power of cooperation. Working together in a non-adversarial manner to meet the goals and interests of the parties is a quick, inexpensive way to resolve disputes quickly, control costs and scheduling, control outcomes, maintain relations, avoid unnecessary publicity, which is rarely possible in litigation.
We must be alive to Clark’s Law of Revolutionary of Ideas. Every revolutionary idea—in science, politics, art, law or whatever, evokes three stages of reaction. They may be summed up in three phrases (1) it is impossible, so don’t waste my time with it. (2) It is possible, but it is not worth doing. (3) I said it was a good idea all along. The collaborative process has been welcomed in different parts of the globe and many law firms in USA, Australia, Ireland and United Kingdom. It has become part of the practice and litigation has been dropped in favor of the collaborative process. That belief gives us assurance that the future of collaborative law is bright. The satisfaction of the Collaborative Law clients will ensure its recognition as a credible process. In turn, the satisfaction of the clients will be a kind of reward to the collaborative law practitioners who will be motivated to continue advocating for it.
Therefore, with support, promotion, and effective practice by its advocates, Collaborative Law will no longer just have potential. It will become a main method to remove clients from the war zone of litigation and into a peaceful venue of conflict resolution. Many scholars and practitioners I have met from different jurisdictions believe collaborative law is an innovative new ADR process that should be utilized as the primary means for resolving disputes. In order for this to happen, there must be more effort by legal and professional communities to promote the growth of the collaborative law movement.
Conclusion.
For collaborative law to become a novel idea in Uganda, it will probably take some time. But we cannot ignore the global movement towards such methods of dispute resolution that would best serve our clients’ interests. Mediation often supervised by courts has already taken root. Practicing Collaborative Law requires judgment to see which case is best suited to the practice because not all cases can be handled under Collaborative Practice. I hope this is an idea that can form part of our practice.
The Collaborative Law process definitely has its own place in ADR, and its successes will help in promoting the Collaborative Law movement. I know one day it will be like what Stu Webb experienced, “I will no longer go to court” in any practicing lawyer’s life. For lawyers, it is not only a question of reshaping the legal institution to make it more accessible to clients, more personal, and more under client control. The legal profession is itself stumbling under enormous pressures. Competition is increasing, job satisfaction is decreasing.
I share the views of Nancy Cameron, the incumbent president of IACP; lawyers have a tremendous amount of control over the evolutionary spiral of the legal institution . We are skilled in debate and critique. We can choose to direct these skills to snipe at change and maintain the status quo. Or we can initiate a deeper dialogue about the interface between the legal profession and peoples’ lives. We can speak to each other about the destruction of professional blind spots, and how to promote a broader vision within the legal community. We can decide how we wish to live our professional lives. And we can act on our intentions. Yes, we can! It is my humble prayer that we can expand our professional dialogue to be more inclusive of the differing needs of the public and profession, and we can drive the evolution of the legal institution to respond to the challenges of our place in history. As peacemakers we will deserve a place in history.
ends
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