Report on IACP, 9th Annual Networking & Educational Forum, New Orleans, Louisiana, USA. October 13th -19th , 2008

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