Collaborative Process and the Obligations of Lawyers As “Public Citizens”

by Sandra Crawford, JD, Mediator and Collaborative Professional

For a legal dispute to be called a “Collaborative Process” each party must commit to retaining a counter-part lawyer who agrees to work under a signed Confidential Collaborative Participation Agreement as a “team” with the clients and collateral professionals required my the issues presented by the dispute. Lawyers in Illinois are governed under the Illinois Supreme Court Rules of Professional Conduct. Article VIII, Preamble (1), of the Rules provides that lawyers are “public citizens with a special responsibility for the quality of justice.” The Preamble goes on to exhort lawyers to “seek improvements of the law, access to the legal system, the administration of justice, and the quality of services rendered by the legal profession.”

This post will lay out why the dispute resolution model, known as Collaborative Process (now enshrined in Illinois law effective January 1, 2018 – 750 ILCS 90/1 et. seq.), helps lawyers, who chose to become educated in and to practice this model, achieve all four obligations set out in the Rules of Professional Conduct and how this in turn benefits individuals, the wider public and the system as a whole.

Improves the Law
Collaborative lawyers “seek to improve the law” by promoting more peaceful and emotionally healing ways for disputants to resolve conflict, particularly in the field of family law. Often lawyers are perceived to be “incentivized to spend more time than is necessary to resolve a client’s problems” because lawyers traditionally bill by the hour and do a lot of their work outside their client’s direct presence. In a Collaborative Process the lawyers for each party join with both parties as a “team.” Much of the work is done in a series of face-to-face sessions, referred to as “four-way meetings”. Discussions about billing and fees are transparent and covered in the Participation Agreement which is signed by the parties, the lawyers and all other professionals on the team. Collaborative lawyers work to educate and empower their clients to help them reach more sustainable agreements for themselves, their families and their future. This in turn improves the law by improving how the public interacts with and perceives lawyers and the legal system.

Increases Access
Collaborative Law will “increase access to the legal system.” Currently, there is an initiative underway within the Collaborative Law Institute of Illinois (Currently, there is an initiative underway within the Collaborative Law Institute of Illinois (www.collablawil.org) to create a modest means Collaborative Process option. This will bring the Collaborative model to under-served communities and in turn will help to spread information about and understanding of Collaborative Process. By creating greater understanding about this relatively new model of dispute resolution (it was introduced in Illinois in 2002), public awareness about Process choice will also be increased. In turn access to the legal system is improved.

Improves Administration of Justice
As Collaborative Process is an non-litigation (“out-of-court”) model of dispute resolution, it helps with the effective “administration of justice”. It streamlining what a Court has to do in matters resolved using the model. Typically, cases resolved using Collaborative Process only require one trip by the parties and their Collaborative counterpart-counsels to the Courthouse for purposes of entering the final judgment by consent after all issues are negotiated and finalized in the “four-way” sessions. This cuts down significantly on the already strained resources of the tax-payer-supported Court system, thereby improving the “administration of justice”.

Quality Legal Services
Improvement of the quality of services rendered by the legal profession is achieved by Collaborative lawyers through the specialized training which Collaborative Professionals commit to before taking on Collaborative cases. This training includes both a 40-hour mediation or communication skills training and a 12 to 15-hour Collaborative Basic Skills Training. Minimum standards for the latter training are set by the International Academy of Collaborative Professionals (www.collaborativepractice.com).Continuing experiential and skills-based trainings in communications, negotiations and dispute resolution are also part of the Collaborative community’s commitment to improvement of quality of legal and related services to the public. Interdisciplinary trainings and practice with mental health and financial professionals, who make up the other parts of the Collaborative “team”, also improves the quality of services which lawyers can provide. Interdisciplinary practice deepens the lawyers understanding of conflict and conflict resolution and ultimately also improves the delivery of legal services.

Sandra Crawford, JD, Mediator and Collaborative Professional