Collaborative Law for Civil Cases

What do you love most about business disputes?

March 9, 2020

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Which do you love most about business disputes?

a) the stress
b) the cost
c) resulting enmity between folks who once liked & trusted one another?

I suspect most of us would answer (D) NONE OF THE ABOVE. And that even goes for many of us who practice civil litigation for a living. I don’t know about you other folks who consider yourselves trial lawyers and litigators, but I am quite confident that I have never had a client approach me after a trial, a deposition, or even a mediated settlement conference and say, “Boy, that was great fun! When can we do it again?” (Not even when our side could claim to have “won.”)

But I have seen former business partners use the legal system wrangle for months over income tax reporting obligations–even long after they had supposedly settled numerous claims against one another arising out of the dissolution of their business. I once defended a general contractor against claims by former clients and friends of his (whose wedding he had in fact even attended) who had accused him not only of breach of a renovation contract, but fraud and unfair and deceptive trade practices in the process. And I cannot count the number of occasions I have represented one of two formerly close friends and business partners in a knock-down drag-out courtroom brawl over business assets, non-compete obligations, or theft of company secrets and relationships.

Conflict is to some degree inevitable in any sophisticated business venture, construction project, or employment relationship. I suppose that is because disagreements and disappointments are tough to avoid in any human relationship, no matter how noble, charitable, or altruistic everyone’s intentions may have been at the outset. And the resulting conflict usually has significant consequences–quite often even for folks only tangentially involved.

As litigation attorneys, we may occasionally be tempted to think (though not necessarily foolhardy enough to say out loud) that conflict “keeps us in business,” so to speak. My sense is that most people and organizations, however, would just as soon avoid the litigation process whenever possible, given the time it takes, the often extraordinary cost, and the overwhelming of lack of control sensation that permeates legal battles from start to finish, from the client’s perspective. And yet given the universality of conflict and disagreements, well-meaning people still may find themselves in extremely difficult situations that require some sort of legal guidance to get out of or navigate through.

There has to be a better way of dealing with the kinds of relational and organizational conflict that ripens into legal disputes–particularly when the parties cannot avoid having to deal with one another on a go-forward basis, even after the presenting conflict is dealt with. As it turns out, there is a better way–and in fact some of our friends and colleagues at the bar have already found and begun employing it. It’s called Collaborative Law, or Collaborative Practice, and it has quite literally revolutionized the family law experience for clients and lawyers alike.

On Thursday, November 10, Irene King (one of the leaders of the collaborative practice movement for family law disputes in Mecklenburg County) will be joining Danae Woodward and me to present a live 1.5 hour CLE seminar sponsored by the Mecklenburg County Bar entitled, “It’s Not Just for Families Anymore!”- Applying the Collaborative Law Model to Construction, Employment and Other Corporate and Commercial Disputes.

We would love to have any fellow litigation attorneys (including but not limited to construction lawyers, business litigators, probate lawyers, or employment lawyers) join us to get a general overview of this new model of ADR that has great potential not only to deliver greater value to our clients, but also to generate meaningful and rewarding work for us as well.

And hey, even if you think the idea sounds crazy, or unworkable, or “too-touchy-feely,” or threatening to your livelihood or the practice of law as we know it, etc.– well, we’d love for you to come join us and contribute your thoughts and insights to the discussion. I think you’ll find that collaborative lawyers aren’t at all afraid of conflict. We just hope to find a less stressful, more productive, and perhaps more sustainable way to navigate through it.