Wednesday, 24 February 2010

My essay on Collaborative law

Collaborative law
The adversarial model of family law conflict resolution has come to be seen by participants as destructive and often leads to an exacerbation of the situation between the parties (Scott 2004). Tesler (1999) reported that clients were unhappy with the family lawyers. Clients avoid family lawyers who they believe are more adversarial in their thinking and behaviour than they want or need. Out of the dissatisfaction and the shortcomings of the litigation process collaborative law emerged in the 1990s. Collaborative law is a way of practising law whereby the attorneys for both the parties to the dispute agree to assist in resolving conflict using cooperative strategies rather than adversarial techniques and litigation. Webb (1996) Collaborative family law is a dispute resolution process in which the parties and their lawyers commit themselves to the realisation of a negotiated outcome. They agree that litigation will not be commenced while they are negotiating and that, in the event they are unable to negotiate a resolution of their dispute, neither lawyer will be eligible to represent his or her client in any subsequent litigation. In the process itself, the participants communicate to promote the maximum exchange of information, to reveal all concerns of the parties, to generate an array of creative ideas, and, ultimately, to agree upon the terms and conditions of a mutually acceptable settlement that satisfies the interest of both parties (Shields, 2003). Experts engaged as jointly appointed advisers. The parties commit to disclose voluntarily all relevant information, proceed respectively and in good faith, and to refrain from any threat of litigation during the collaborative process. The process moves forward like carefully managed four way settlement meetings, preceded by considerable groundwork between lawyer and client, and between lawyer and lawyer. Scott (2004) refers to the need for lawyers to retool how they think, speak, behave, how they relate to their client, how they relate to the other lawyer, the other party and other professionals and how they conduct settlement meetings. The process is different from that of normal negotiation in that there is often a moment when the lawyers and their clients realise that if the matter proceeds with positional rights orientated negotiations and they fail someone else will do the deciding which can have the effect of causing the parties and the lawyers to enter a creative problem-solving mode.
Scott (2004) describes a hallmark of collaborative law the requirement that the parties undertake to provide full and frank disclosure of information and commit to participate openly and honestly, in good faith, in the negotiations. This approach is consistent with the recent amendments to the Family Law Act which require an exchange of information and documents in early-stage between the parties.
History of collaborative law
Roscoe Pound, and American jurist and academic at the beginning of the 20th Century challenged the concept of the judge being an umpire and the parties fighting the case without judicial interference. Pound opined that this sporting theory of justice was not a fundamental legal tenant. ‘The idea that procedure must of necessity be highly contentious disfigures judicial administration at every point. It leads the most conscientious judge to feel that he is merely to decide the contest, as counsel present it, according to the rules of the game, not to search independently of the truth and justice.’ Pound (1906)
In 1981 Roger Fisher and William Urie published; Getting to Yes: Negotiating Agreement Without Giving In. They questioned positional bargaining. Getting to Yes offered principled negotiation as an alternative to positional bargaining. The four basic points of principled negotiation are as follows:
1. People: Separate the people from the problem.
2. Interests: Focus on interest, not positions.
3. Options: Generate a variety of possibilities before deciding what to do.
4. Criteria: Insist that the result be based on some objective standard.
The process has become known as interest based negotiation. Collaborative family law represents a development interest based negotiation. At the first interview with the client, the collaborative lawyer will adopt a client centred approach in which the discussion is not confined to the legal dimensions of the client’s problem but extend it into the economic, social, psychological , moral, political, and religious dimensions as well. Clients may tell their lawyer that they want justice. It is important that the client and the lawyer have the same understanding of what outcome is sought. The lawyer must explore with the client their interests, concerns, objectives and options for resolution of the dispute to help get a client ‘justice’. Justice is hard to define.
Justice
The Collins English dictionary defines justice in a number of ways including: the moral principle that determines the fairness of actions; the administration of law according to prescribed and accepted principles
There is a working definition of justice familiar to many lawyers. ‘I only want what is due to me.’ Justice is sum clique. (Latin) To each his due. Miller (1976. p20)
In the ancient world philosophers asked questions about life including what was justice. Plato in his philosophical work the Republic discussed the meaning of justice. Plato saw the state is growing out of the individual. Plato saw three types of individual workers, soldiers and the rulers. The workers represent appetites, the soldiers embody the spirit and the rulers represent the rational element. Justice in the State will be attained only when the three classes of the fill their functions. Stumpf (1993 p138)
Thomas Hobbes in his famous work Leviathan developed a theory of social contract. Hobbes argued that without government or laws life would be solitary, poor, nasty, brutish and short. Citizens enter into a social contract and appoint a sovereign, which will enforce the law and give peace in consideration for citizens obeying the law. The apartheid regime in South Africa would have argued that the apartheid laws having been made by the sovereign State of South Africa they were just laws and must be obeyed. Hobbes made no allowance for unjust laws.
John Rawls in his book, A Theory of Justice (1972) stated that justice is the first virtue of social institutions. Rawls states that each person in society possesses an inviolability founded on justice that even the welfare society as a whole cannot override. Justice does not allow the good of the majority to outweigh the interests of the minority. Rawls propounds that any injustice is only tolerable if it is necessary to avoid an even greater injustice. In a society social justice principles are a set of principles for choosing among various social arrangements which determine the division of advantages. Rawls develops the social contract theory of justice. Men decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of society. Rawls develops the concept of the original position in which no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strengths and the like. Rawls develops this as the veil of ignorance. This is to ensure that no one is disadvantaged. The principles of justice are then the result of a fair agreement. The choice which rational men would make in this hypothetical situation of equal liberty determines the principles of justice.
Mick Dodson Social Justice Commissioner in 1993 when asked what is social justice said, "Social justice is what faces you in the morning. It is awakening in a house with adequate water supply, cooking facilities and sanitation. It is the ability to nourish your children and send them to school where the education not only equips them full employment but reinforces their knowledge and understanding of their cultural inheritance. It is the prospect of junior unemployment and good health: a life of choices in opportunity, and free from discrimination."
When family law clients talk to their solicitor about collaborative law one perspective of justice to be considered is social justice.
The Constitution of the Republic of South Africa recognised the principle that the conflicts of the past had caused immeasurable injury and suffering to the people of South Africa and that because of the country's legacy of hatred, fear, guilt and revenge there was a need to understanding but not a vengeance a need for reparation but not retaliation, a need for ubuntu but not for victimisation. These South African constitution contrary to the opinion of Hobbes acknowledged that the sovereign had erred. The promotion of national unity and reconciliation act of 1995 establish the truth and reconciliation commission. The objects of the commission were to take measures aimed at granting reparation to and rehabilitation and restoration of the human civil dignity of victims of violations of human rights and in part achieved this by the granting of amnesty to wrongdoers. It may be argued that the Commission process allowed the good of the majority of South Africa to override the minority victims. This sentiment however is contrary to the reality as described by Krog in her powerful work, “ Country Of My Skull,” wherein she recounts horrific versions of suffering by many under the apartheid regime which would never have been recounted but for the Commission's work. In her paper ' The South African Road ' Krog states ' whatever the commission sets out to do, it should give space, he is as well as recording and distributing mechanisms to allow people to recount their experiences, unrestricted and in the own way. These memories should be made widely available so that the memory of the country can be restored and a whole past can be acknowledged by all.' is the put forward is that the telling and hearing of the story is more important than were retributive justice.
The jurisprudence of the Truth and Reconciliation Commission and its approach to seeking justice from a different perspective can be compared to the collaborative approach to family law that has developed in recent years. As in the aftermath of the fall of apartheid in South Africa the truth in family law disputes is rarely fully discoverable. The effect of adversarial litigation often escalates the conflict between the parties rather than focusing on positive parenting and other positive outcomes. The collaborative law process can assist parties achieve an optimal outcome. The collaborative process requires lawyers to leave the Family Law Act and Rules to one side. Like at The Truth and Reconciliation Commission the parties to a family law dispute resolved collaboratively are able to tell their story and need not be challenged as to their perspective. Like in a Truth and Reconciliation Commission hearing if one party in a collaborative law resolution process seeks to deceive the other any settlement or ' amnesty ' is at an end.
Collaboration
Collaboration occupies a place at the opposite end of the conflict resolution continuum from competition. Shields (2003)
Deutsch (2004) ‘A conflict is likely to take a constructive course if it is viewed as a mutual problem to be worked on together in a cooperative process; a conflict is likely to take a destructive course if it is defined as a win-lose conflict in which the conflicting parties engage in a competitive process to determine who wins and who loses. The typical effects of a successful cooperative process when introduced into a conflict, that is not already strong and determined, tend to induce a cooperative, constructive process of conflict resolution. Such typical effect includes: honest communication; friendliness and readiness to be helpful to one another; enhancement of the others power and well-being; and mutual trust and trustworthiness. In contrast, the typical effects of a competitive process tend to induce a destructive, competitive process of conflict resolution. These typical effects include: communication designed to deceive; hostility and obstructiveness directed towards the other; attempts to weaken the power of the other and to keep or place the other in an inferior position; mutual suspicion and untrustworthiness.’
Deutsch (1973 p20) distinguishes between cooperative and competitive processes. He states that, ‘the crux of the differences between cooperation and competition lies in the nature of the way the goals of the participants in each of the situations are linked. In a cooperative situation, the goals are so linked that everybody ‘sinks or swims’ together, while in the competitive situation if one swims, the other must sink.’
Deutsch (1973 p353) describes aspects of adversarial dispute resolution that can perpetuate conflicts. These included bad communication between conflicting parties, competition that stimulates the view that a solution of conflict can only be imposed by one side through superior force, deception or cleverness and the need to maximise one’s own power and minimise the power of the other as an objective.
Shields in reviewing Deutsch adopts a concept of promotive interdependence. Collaboration proceeds on the basis that there is a positive correlation between the goal attainments of both parties. The efforts of one party to attain his goals will invariably promote the likelihood of the other attaining his as a direct consequence.
A Paradigm Shift
The legal system is set within an adversarial paradigm. The legal process for resolving family law disputes sits within the same framework as that used for resolving contractual and negligence claims. The process assumes there is a right and wrong position. Thomas Sowell when considering a vision of Justice in, ‘A Conflict of Visions’ (2002 p190) considered the inherent limitations of human beings as central to the concept of legal justice as discussed by Oliver Wendell Holmes in finding a justice to the individual was rightly outweighed by the larger interest on the other side of the scales. Homage denied that the law historically evolved by the application of logic. The style of continues to discuss a statement of William Blackstone an 18th-century English legal theorist. At p193 Sowell refers to English courts of Equity which were distinguish from the courts of Law as the source of justice when the courts of Law would not help a claimant. Blackstone said that law without equity tho hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion. It is this confusion that a change of paradigm from adversarial to collaborative dispute resolution achieves. It is the confusion of parties deciding what they want to achieve rather than being confined by a result fixed within a legal formula. Sowell contrast the position of Holmes and Blackstone with that of William Godwin at p196 who stated, “Every case is a rule to itself.” Godwin further said ‘…justice requires contemplation of all the circumstances of each individual case. Sowell at p199 records that one vision of justice sees the importance of achieving desired social results. That this view rejects an emphasis on legal process and calls for there to be an awareness that process not an empty vessel whose users may pour into it whatever they will quoting Tribe. He raises the issue faced by anyone involved in a legal process that whilst there may be procedure there will always be substantive based decisions. This was so in South Africa both before and after 1995 and remains true when seeking justice in a family dispute. Parties to family disputes seeking to change from the adversarial to the collaborative paradigm can identify the dispute as they perceive it and then decide their own manner of resolution. The difference is that the focus is now on the interests of the parties and not the rubric of the law. The procedure used in the collaborative process will be determined by the parties and not by a rigid rules and laws. The collaborative process can be used by the parties to define and resolve their problem.
Bibliography
Deutsch, Morton. 1973. The Resolution of Conflict. New Haven CT, Yale University Press.
Deutsch, Morton. 2004 Destructive Conflict and Oppression accessed 17. 1.2007 http://www.humiliationstudies.org/documents/DeutschOppression.pdf
Krog, Antjie. 1998. Country of my skull. Parktown: Random House South Africa (Pty) Limited.
Miller, David. 1976. Social Justice. Oxford: Clarendon Press.
Pound, R.. (1906). The causes of popular dissatisfaction with the administration of justice. F.R.D. 35:273-291. St. Paul, M N: West Publishing Co., p. 281.
Scott, M, "Collaborative Law: A New role for lawyers" (2004) Australasian Dispute Resolution Journal, Volume 15, Number 3, August
Shields, Richard W. Judith P. Ryan, Victoria L. Smith. (2003). Collaborative Family Law: Another Way to Resolve Family Disputes. Toronto: Thomson Carswells.
Sowell, Thomas (2002) A Conflict of Visions. New York: Basic Books
Stumpf, Samuel E. (1993). Elements of Philosophy An Introduction. 3rd Ed. New York: McGraw-Hill, Inc.
Tesler, P.H. (2001) Collaborative Law: Achieving Effective Resolution in Divorce without Litigation. Chicago; ABA Publications.
Webb, S. G. (1996) Collaborative law-a conversation: why aren’t those divorce lawyers going to court? The Hennepin Lawyer. August 1996:26-28
Wolf, Robert P. 1977. Understanding Rawls. Princeton: Princeton University Press.

3 comments:

  1. Well done setting up this blog Christopher. It is an important tool for the public and interested parties to learn more about this fantastic process. Even though Collaborative practice is widespread around the world and has been practiced extensively for about 20 years elsewhere, it is a new process in South Australia, and a very exciting opportunity for families to experience the new breed of lawyers that this process attracts. I am thrilled that you have started this blog and that more of the public will have access to learn about Collaborative Practice. What a wonderful resource you have created.
    Regards, your collaborative friend Bev Clark

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  2. I like your comments on Justice; it is hard to define.

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  3. Dr Anthony Smerdon5 March 2010 at 22:02

    What a wonderful web site for those clients who are searching for an alternative to conventional law. Well done Swan Lawyers

    ReplyDelete