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
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
