Divorces can be bruising—not least of all for the attorneys involved. Frustration with the scorched-earth mentalities that often engulf them helped spur the development of collaborative law, a process in which lawyers seek to sap some of the emotional venom by helping the estranged spouses directly negotiate a mutually acceptable resolution, without involving any neutral third party. The hope is that the parties can thus walk away still on speaking terms.
Collaborative law is so far largely unknown outside of the family law context. But a group of North Carolina lawyers is working to expand the concept to other areas of the law, particularly to arenas like business disputes and construction law, where the disputants have existing relationships that are similarly worth preserving. And if the idea catches on there, its use could have potential to grow in South Carolina as well, says the president of the state’s academy for collaborative law attorneys.
John Sarratt of Harris Sarratt & Hodges in Raleigh is the president of a non-profit organization called the North Carolina Civil Collaborative Law Association. The group was formed this year with the mission of raising awareness about the collaborative process and developing a market for practitioners outside the family law context. Over the last two years, Sarratt has crisscrossed that state organizing training workshops to teach attorneys about the method’s principles.
The collaborative method has similarities to other types of alternative dispute resolution such as mediation, but Sarratt said that the process differs from mediation in several key respects, most notably in that the process is largely client-driven. Additionally, the attorneys who advise each party are contractually prohibited from serving as counsel if the process breaks down and parties proceed to traditional litigation. Sarratt said that this keeps the participants focused on negotiating a solution rather than positioning themselves for further litigation.
“In mediation it is rare that the parties speak to each other. The lawyers state their positions and then the parties probably don’t see each other again until they leave the building. In a collaborative process from the very beginning, the clients are sitting at the table across from each other,” Sarratt said. “The only incentive is to bring the parties together, if it’s possible, and reach a solution.”
Sarratt said that in situations where the collaborative process is viable, it raises the possibility of saving the parties time, money, and aggravation. For instance, rather than having each side hire—and pay for—its own expert witness, parties participating in the collaborative process might agree to hire one neutral expert to render an opinion and share the cost.
The new non-profit group’s training events have focused on teaching conflict resolution techniques, many of which draw from Roger Fisher and William Ury’s influential book “Getting to Yes,” which was first published in 1981 and is still taught in many law school curricula. The idea is to shift discussions away from parties’ emotions and towards the needs and interests that underpin their conflicting positions, with the hope of finding a solution that can satisfy both sides’ needs. The process is designed to give parties more flexibility to generate creative solutions that couldn’t be produced via litigation.
Shannon Burnett, an attorney in Blythewood who is the president of the South Carolina Academy of Collaborative Professionals, says that the use of collaborative law is still mainly limited to family law in South Carolina, but that she sees other avenues for its growth there as well. Probate law is a particularly well suited area for alternative dispute resolution, she said, because the opposing sides in probate disputes are often family members as well.
Burnett said that in her experience, handling cases collaboratively leads to higher rates of satisfaction, among both the disputants and the attorneys counseling them. For her, she said, it extended her ability to continue working in the high-stress crucible of family law.
“It’s not just cost and speed, it’s satisfaction, which especially in family court you get very little of,” Burnett said. “It’s a hard thing for people to go through, and especially to have a judge making those decisions, but in collaborative law, where the participants are so integral to the solution, there’s a lot more satisfaction for the people who are involved with it.”
Not every type of dispute lends itself to the collaborative process. There was at one point a hope that it might find a niche in medical malpractice cases, another venue where the litigants are often very emotionally invested in the case—doctors often feel under attack, and patients often want nothing so much as apology. But in practice it turned out to be difficult, because insurance companies’ business models weren’t made to accommodate such a process.
But Sarratt’s group sees other possible opportunities. Nicole Slaughter, an attorney with Hamlet & Associates in Wilmington, North Carolina, who practices construction law, thinks that collaborative dispute resolution would be well suited to her practice area, where disputes often flare up among contractors and subcontractors that are likely to do business again in the future. The cost and time involved in the traditional litigation process can sometimes bring construction projects to a sudden halt, she said.
“There are a lot of different applications for this, and I think there’s a need for it,” Slaughter said. “The public wants other ways of resolving disputes.”
Slaughter said that when she talks to construction law attorneys in South Carolina, they have little idea what she’s talking about, although Burnett said that she knows of at least one attorney who offers collaborative law as an option for construction cases and is actively trying to expand that aspect of his practice.
Sarratt said that his organization has now trained over 100 non-family law collaborative law practitioners. He said that the next step is to try to find work for them, and that he was optimistic that there would be strong interest in the process as more clients learn about it.
“The collaborative element in the process is the lawyers themselves. The reason you train the lawyers and have lawyers represent each client is to guide the process,” Sarratt said. “It’s a much faster process, it’s a less expensive process, it’s a process that maintains and may even improve relationships, and it stays completely out of court.”
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