By Ty Supancic, Esquire
One of the primary goals of The Law Collaborative, LLP, is to become masters and innovators of Consensual Dispute Resolution techniques and practices. In order to develop and promote Consensual Dispute Resolution so that it may become the mainstream, we must change our vocabulary as well as our approach.
We purposefully use the term Consensual Dispute Resolution (CDR) instead of the more prevalent Alternative Dispute Resolution (ADR) because the word “alternative” is a pejorative. It suggests that ADR methods are secondary or tertiary choices to “regular” or traditional dispute resolution. “Regular” suggests mainstream, preferred, and superior. But anybody who has ever been involved in “regular” dispute resolution (litigation) can attest to the fact that, while it may be mainstream, it is not superior. Oftentimes both parties are worse off after participating in the traditional dispute resolution process, and the only people enriched are the lawyers.
Competent and ethical attorneys should always consider CDR methods and approaches first. Litigation should always be considered the last resort as it is usually the most expensive and least predictable avenue. We believe that in the near future, litigation will be considered the alternative dispute resolution method.
One of the most promising developments in the field of CDR is Collaborative Law, a specialized form of con-joint mediation involving two attorneys. This article is not intended as a primer on Collaborative Law; many far more eloquent practitioners have already provided these. For a short list, go to the Articles section of our website.
Nor is this article intended to persuade you that Collaborative Law is the way of the future. Do not bother reading further unless you believe that Collaborative Law holds great promise. If you need convincing, I would refer you to the case studies on our website, or those on the websites of any of our colleagues. The proof of the pudding is in the eating as they say. Instead, this article is intended to discuss and reflect on what can be done to improve our collaborative skills and instincts.
Collaborative Problem Solving
Collaborative Law is not yet taught in law schools. Until recently, collaboration of any kind was not formally taught anywhere. What we are taught in school and life is positional negotiation, argument, and combat. From our earliest upbringing, we are taught to choose sides. Dodge ball, red rover, and every other sport is about one side winning and the other losing.
Nowhere is this more apparent than in law school. Attorneys are taught from their first day in law school that there are two sides to every argument – your side and the professor’s side – wrong and right, innocent and guilty, black and white. Positional thinking and analysis are paramount to success in law school. One of the primary reasons in law school for examining both sides of a fact pattern is so that you may anticipate your opponent’s defense and defeat it. Graduates exit the system indoctrinated and highly skilled in the methods of argument and combat.
In contrast, collaboration skills are usually learned by trial and error in daily life as we try to work with family, friends, and co-workers. You might pick up some collaborative skills in leadership training or business school, but collaboration is usually taught as a means to an end, not the end in itself.
Part 1 – Why We Collaborate and Collaborative Problem Solving
Part 2 – The Collaborative Paradigm
Part 3 – Changing Our Paradigm
Part 4 – Leading By Example
Part 5 – God is in the Details
