By Colleen Byers,
Bell Davis Pitt
Abraham Lincoln, a wise lawyer and visionary leader once said, “With malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds.” Abraham Lincoln was talking about the abolition of slavery and the healing of a young country quite literally torn apart by Civil War. Yet there are pearls of wisdom in President Lincoln’s words that are equally applicable to our modern legal practices. After all, as lawyers and mediators, we are frequently called upon to bind up the parties’ wounds.
Collaborative law is a form of alternative dispute resolution that offers parties an opportunity to bind up their wounds with dignity and respect. Conceived in 1990 by Minnesota family lawyer Stuart Webb, collaborative law is a non-adversarial, attorney-led, structured negotiation process that focuses on the needs and interests of the parties as they work together to create sustainable solutions.
With an emphasis on the open and honest exchange of relevant information, trained lawyers facilitate joint brainstorming sessions to support and empower the parties to craft a workable and lasting solution for themselves, rather than hand their fate over to a judge or jury after a long and costly battle through the court system. Collaborative law offers a faster, more cost effective, and less traumatic path toward conflict resolution that gives the parties a chance to preserve their relationships with each other. Unlike the modern mediation style where the parties remain in separate rooms, entrenched in their respective positions and worried that if the other side gets a bigger piece of the proverbial pie, then they will necessarily get less, in the collaborative process, all of the parties are seated at the same table, with their advocates by their sides, collectively brainstorming ways to expand the pie rather than just divide it. Everyone, including the attorneys, is committed to finding a business or personal resolution that everyone can embrace, not just reluctantly suffer through.
The Business Case for Collaborative Law
Collaborative law is particularly beneficial in matters in which there is an ongoing relationship or future associations. Think of a family business that’s “divorcing,” a construction project in which there’s the opportunity for the parties to have future, profitable ventures, or an employment matter where the parties have a continuing need to work together.
Increasingly, clients are unwilling or unable to pay large legal fees for extended periods of time or tolerate protracted litigation. Particularly those clients in the technology and innovation space do not have the time to wait 18-24 months for a dispute to work its way through the court system. By then, the technology has become archaic. Rather than pay their lawyers to fight over provisions of a required case management order and other procedural formalities, the parties in a collaborative case benefit from knowing that every minute their lawyer spends on their case, he is working toward facilitating a business resolution.
Collaborative Law Regulations Pending in NC
After hours of drafting and consulting with practitioners in a myriad of practice areas, the Uniform Collaborative Law Act (“UCLA”) was submitted to the North Carolina legislature. This winter, it passed the House and is currently before the Senate Rules Committee for consideration. The UCLA seeks to codify the regulations for the practice of collaborative law in non-family civil matters. Of particular importance to attorneys is the restriction on collaborative attorneys and their respective firms from representing their clients in subsequent litigation if the dispute is not resolved in the collaborative process. This disqualification rule is intended to encourage parties and their lawyers to engage diligently in negotiations to avoid having to hire new counsel if they do not reach resolution in the collaborative law process.
Collaborative Law Resources
Led by John Sarratt, the North Carolina Civil Collaborative Law Association (“NCCCLA”) seeks to educate attorneys as well as the general public about the many advantages of utilizing collaborative law to resolve civil disputes in the commercial arena. The non-profit organization defines uniform standards and best practices for civil collaborative professionals, offers training and networking opportunities, and provides resources for practitioners and parties.
If you want to learn more about collaborative law and how to incorporate it into your practice, please join me and other leaders of NCCCLA at an upcoming Collaborative Practice Training CLE in Asheville on June 19th and 20th. For details and registration, click here:
The collaborative process is not the right fit for every dispute, nor for every client, but it is a viable form of alternative dispute resolution that we, as counselors at law, should educate ourselves and our clients about.
About the Author
Colleen L. Byers is a lawyer and certified mediator at Bell, Davis & Pitt. Her legal practice includes business and commercial litigation, legal malpractice defense, trust, estate and guardianship disputes, will caveats, and fiduciary litigation. Colleen is trained in the Civil Collaborative Law process and is certified by the North Carolina Dispute Resolution Commission to mediate Superior Court cases as well as those matters pending before the Clerk of Court. When she is not spending time with her husband and their daughters, Colleen enjoys practicing and teaching yoga.