A Brief History of the Origin of Collaborative Law in the United States
by Diane Woods
Sometime in the late 1980’s Stuart "Stu" Webb, a family law practitioner in Minneapolis, Minnesota grew weary of the daily courtroom battles he waged. As seasoned trial lawyer, Stu was adept and knowledgeable. As a caring human being, he longed for a non-combative forum where his analytical skills and ability to generate creative alternatives could be useful. He reasoned that the latter skills were grossly underutilized in the usual adversarial family law proceeding.
Stu was searching for a different way of doing business.
Although he also had training as a mediator, he perceived that one of the weaknesses in mediation was that, in the early stages, mediation frequently lacked critical legal advice from competent counsel. He also observed, in a 1990 letter to one of Minnesota’s Supreme Court Justices, that there were occasional times, occurring usually by accident, when in the course of attempting to negotiate a family law settlement, we find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where dynamics were such that in a climate of positive energy, creative alternatives were presented. In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction.
Stu mused that such a settlement promoted the possibility of the parties relating to each other differently in all future dealings. He also foresaw the possibility of the lawyers developing a degree of trust between them that might make their future dealings more productive.
In this same letter Stu concluded:
So my premise has been: why not create this settlement climate deliberately? I propose doing this by creating a context for settling family law matters by, where possible, removing the trial aspects from consideration initially. I would do this by creating a coterie of lawyers who would agree to take cases, on a case-by-case basis, for settlement only. The understanding would be that if it were determined at any time that the parties could not agree and settlement didn’t appear possible, or if for other reasons adversarial court proceedings were likely to be required, and the attorneys for both sides would withdraw from the case and the parties would retain new attorneys from there on out to final resolution.
I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law.
The advantages of this collaborative-law model, as pointed out by Stu, were:
1) Each party is represented by an attorney of his or her choice from the outset. This is usually not the case in private mediation where clients do not bring in attorneys until after the mediation has begun or possibly even at the conclusion of mediation. Frequently memoranda of understanding must be abandoned or vigorously revised in order to incorporate necessary and legally required provisions.
2) The process allows lawyers to focus on the settlement of the case without the threat of "going to court" lurking in the background. Frequently it is the norm to bypass settlement in the initial stages because the parties are preoccupied with posturing and the lawyers are absorbed by the discovery process.
3) There is a continuity between settlement and processing the final dissolution. This is all too often not the case in mediation with the resulting problem of the lawyers not liking the mediated settlement.
4) With the focus on settlement and avoiding court, the lawyers and clients are motivated to learn what works to achieve settlement; how to problem solve without getting "plugged in" to the emotional content. Lawyers who participate in this program will be motivated to develop win-win settlement skills such as those practiced in mediation.
5) Lawyers are freed up to use their real lawyering sills, i.e., analysis, problem solving, creating alternatives, tax and estate planning and looking at the overall picture as to "what’s fair."
6) Four-way conferences become the norm with positive energies being generated (because that’s where the creative solutions lie) as all work collaboratively for a fair settlement. As in mediation, the potential is high for the clients to have a great deal of input.
7) Clients and potential clients get an orientation in which they are advised of the advantages, including cost savings, of this approach and the kind of attitude and frame of mind that is most likely to achieve fair, prompt, efficient, and positive settlements that work for both parties.
8) When cases don’t settle and new attorneys are retained for trial, the clients have had the best shot both ways—a settlement specialist and a trial specialist.
9) Settling cases on a collaborative basis is more challenging, more cr eative, and just more fun!
On the heels of his letter to the Supreme Court, Stu set about meeting with various other Minneapolis family lawyers, explaining the collaborative process. He has frequently been heard to say that all it took to get started was one other attorney who was willing to give the process a try. At the present time, there are over forty attorneys in the Minneapolis-St. Paul area who are actively engaged in the practice of collaborative law. Stu’s practice is entirely collaborative, when he is not spreading the gospel of collaborative law somewhere in the United States.