Civil Collaborative Practice: A Better Way to Resolve Disputes

By: MARC O. SHERIDAN, Esq. and STEPHEN G. GORDON, Esq.

Consider the closely held corporation forced to restructure; or the family partnership caught in hard times and hard feelings; or the sole proprietor confronted with employment issues; or the thorny estate or malpractice dispute.

Traditionally, these impasses were litigated - with all the attendant financial, emotional and temporal expense intrinsic to litigation. However, in recent years, a highly efficient dispute resolution process - civil collaborative practice - has gained prominence. Collaborative practitioners are found in all 50 states and over 22 countries around the world.

Civil collaborative practice is a voluntary process that preserves key relationships, solves problems mutually and privately, and avoids financially draining, time-consuming tactics. Civil collaborative practice is conducted outside the courtroom in a series of private, confidential face-to-face meetings. The parties, not the judge or jury, control the process and the outcome. Each party is zealously represented by specially trained settlement counsel. Collaborative attorneys have the same professional obligation to their clients as do litigators.

Everyone's full effort is directed towards settlement. If settlement is impossible, the collaborative attorneys must withdraw from further representing their clients. Thus the threat to "see you in court" is eliminated. The parties forego the "battle to win" in favor of "creative problem solving." This fundamental shift in approach towards conflict resolution results in "win-win" solutions.

The parties pledge full and open disclosure. There is no costly gamesmanship in the exchange of the essential information upon which settlement rests. Negotiation is "interest-based" rather than "positional." The specific interests of each party are identified. Settlement is achieved by mutually fashioning a result that meets the main interests of the parties.

Often a team approach is employed: attorneys address specific legal issues, mental health professionals deal with emotional and psychological issues that frequently impede settlement, and financial and other experts explore options from their professional perspectives.

Civil collaborative practice is more cost efficient and less time-consuming than litigation. It allows for professionals to focus on finding substantive solutions rather than making motions and court appearances and leaves decision-making to the clients. It fosters respectful discourse and discourages bullying and maneuvering. It preserves individual integrity and salvages relationships among the parties.

The advantages are clear: whether you are an employer, employee, owner, partner, spouse, or sibling, civil collaborative practice is a better way to resolve disputes.