Dispute Settlement Counsel

Like discovery, motion practice as we now know it, is not very sustainable either. Motion practice can be a useful tool used to streamline litigation and narrow the issues. Still, within the parameters of civil procedure, it can be a time consuming and costly part of litigation. Often, its purposes can be accomplished by adopting the practice of transparency that is inherent in the nature of Collaborative Practice.

Consider this alternative: Once an initial legal analysis is done, some very open and transparent exchanges of positions and legal arguments between the lawyers can and should take place. Assuming both lawyers assess the case well, they can agree to be open and transparent about their clients’ respective claims and legal positions. This can be helpful in crystallizing both the basis for and the focus of the negotiation and can move the parties to the negotiating table sooner. 

Mutual recognition of the merits of one party’s claims and the other party’s counters or defenses can be accomplished by an exchange of memorandum-styled letters between the lawyers and a subsequent face-to-face meeting of the lawyers involved. One party presents its case and the legal and factual basis for it. The other party responds, and either advised the first party of the weaknesses or holes in the legal positions advanced or the strength of the defenses. They also exchange the factual arguments of each side, as the lawyers know them to be. They can provide each other with relevant documentation in support of their positions when they meet, all within the parameters of settlement negotiations. This process and exchange of supporting documentation can take the place of the typical demand letter from one side and usual positional response from the other side. But instead of setting the stage for a negotiation about the dollar amount of the settlement, these are setting the stage for the determination of whether a case is a good candidate for early ADR.

For a case to be a good candidate for Collaborative Law or mediation, both parties must have some colorable and valid legal and factual arguments. If one or the other does not have a strong claim or a strong defense, using Collaborative Law or early mediation is probably not warranted. It may sound counterintuitive at first, but it is the strength of the two parties’ respective legal positions that earns each of them the right to sit at the interest-based negotiating table. If one party essentially has no claim or no case, Collaborative practitioners should not be wasting their time and risking damaging the legitimacy of the Collaborative Law movement by suggesting using Collaborative Law. They provide the client value by doing a thorough initial assessing of the claims, advising the client that he or she has no viable claim and respectfully urging the client to invest his or her time, energy, emotions and money in something more productive.

As a community, by making the existence of a strong claim a pre-requisite, Collaborative lawyers help maintain their integrity and credibility such that when one of us approaches another lawyer with a case and suggests that a collaborative process be used to resolve it, the other lawyer can assume that the case has merit because a collaborative lawyer brought it forward.