Seven Ethical Considerations for Attorney Neutrals in Collaborative Matters

Collaborative MattersAttorneys who have substantive knowledge of a particular area of law are sometimes brought in as neutrals in Collaborative Law cases.  Parties sometimes want unbiased advice on how a court would likely interpret the facts and how parties draft settlement agreements to address the major legal concerns that this area of law raises, in order to help them reach a negotiated resolution.  Some attorneys with proper training also act as coach-facilitators in these cases.  Is this ethical?  The attorney should consider the following guidelines:

  1. Under the preamble to the Model Rules of Professional Conduct, “In addition to … representational roles, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.”  It is OK to be a neutral.
  2. An attorney “shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as … third party neutral, unless all parties … give informed consent, confirmed in writing.”  The exception is if the attorney’s firm establishes an “Ethical Wall” (formerly known as a “Chinese Wall”).
  3. An attorney who has served as a neutral may not seek employment from a party or lawyer.
  4. A lawyer who is serving as a third party neutral must inform unrepresented parties that the lawyer is not representing them.  Even though both parties have lawyers who represent them in a Collaborative case, it is still a good idea to include appropriate language in the retainer letter.
  5. Lawyers who are members of the International Academy of Collaborative Professionals (IACP), the largest industry group, are also subject to IACP ethical standards.  Under those standards, the lawyer “shall not engage in any continuing client relationship that would compromise the Collaborative practitioner’s neutrality.”
  6. Under the IACP standards, a lawyer who is hired as neutral must stick to that role.  While the advice he gives may make one client or the other unhappy, he should seek to provide it in a way that does not unduly increase the conflict between the clients (diplomacy!) and appears to be neutral, rather than advocating for one client over the other.
  7. In a family case, the IACP standards prohibit lawyers from working with either or both client(s) or with their child(ren) outside of the Collaborative process.  However, although the standards are not entirely clear, it appears that a neutral could work with both parties at the same time if permitted under legal ethics rules.   Attorneys should carefully consider the degree to which they can do so without wading into a non-waivable conflict of interest, as well as the amount of informed consent about joint representation they need to provide.

It sometimes surprises non-lawyers that attorneys have ethics!  In fact, ethics is a required class in law school, a required part of the bar exam and in many states a continuing education requirement.  As important as ethics can be in typical legal practice to resolve tensions among lawyer self-interest, client self-interest and the interests of tribunals and other parties, they are even more important in Collaborative matters.  The reason is that building trust in the process and participants is such a vital part of this type of work.  In other words, even as neutrals, attorneys should be mindful that they are modeling ethical, trustworthy behavior, which can only enhance the process and strengthen the Collaborative team.

Conflict Resolution for Small and Family Business: Collaborative Law and Supplier-Customer Disputes

Collaborative LawDisagreements between companies and their suppliers, distributors or customers can often disturb a mutually beneficial arrangement.  Neither party wants a prolonged, expensive legal dispute.  Neither party wants the public to know about the dispute or the terms of the underlying contract.  One alternative for small or family businesses looking for a fast, cost-contained, efficient solution is to use the relatively new discipline of Collaborative Law.

  1. What is Collaborative Law?  Collaborative Law was originally designed as a method for reducing the hostility and expense of divorce.  Practitioners came up with a set of effective steps to encourage squabbling spouses to engage inso-called interest-based negotiation (negotiation based core interests rather than on staking out extreme positions and haggling to reach a middle ground) and cooperative problem-solving.  Some of these techniques translate very well to civil disputes in which parties want to maintain an ongoing relationship yet resolve their disagreement efficiently.
  2. How Does It Work?  It starts with the parties and their attorneys agreeing in writing to seek a resolution of their dispute outside the court system.  They then set the parameters of their discussions, such as the number of initial meetings, the inadmissibility of any of the settlement discussions in court and a joint commitment to exchange relevant information freely rather than playing discovery games.
  3. How is the Lawyer’s Role Different? In litigation or most commercial mediation, the lawyer takes the lead adversarial role as the client’s primary persuasive mouthpiece.  He also utilizes the tools of the system to weaken the opponent’s side and strengthen that of his client.  In the Collaborative process, lawyers advocate for clients by supporting them in a problem-solving mode.  Since this can be a leap for some lawyers, special Collaborative Law training is the best preparation.
  4. Lawyer Disqualification.  To keep the focus on the conference room instead of the courtroom, in a pure Collaborative case the lawyers agree to withdraw in favor of litigation counsel if the case does not settle.  Since this is not always practical, variations are evolving, including some that protect in-house counsel.
  5. The Collaborative Team The negotiating group consists of more than just parties and their lawyers.  In most cases, a specially trained neutral Collaborative coach-facilitator assists in managing the process and party communications.Partiesoften find it useful to seek any neededexpert advice jointly, ranging from industry-specific factual interpretations to accounting guidance to third party legal opinions.
  6. Conduct of Negotiations.  In a non-Collaborative case, lawyers carry much of the load in offline negotiations or, for a few brief moments, in court.  In a Collaborative case, most of the work takes place in joint meetings with agendas carefully crafted to advance the settlement negotiation process and encourage interest-based negotiation.  The parties themselves are actively involved in this creative problem-solving exercise.

If the parties are engaged in the process, they can sometimes resolve a difficult disagreement within a few meetings, which reduces the drag on internal resources, reduces the legal bills and reduces the ongoing build up of conflict between parties that may want to continue to work together.  The whole process stays private, as do the terms of the arrangement from which the dispute arises and even the fact that the parties have done business together.  Although it is not right for every case, the Collaborative approach encourages customers and suppliers to move beyond their initial stances while giving them the flexibility to design a customized settlement that might not be available in court.

Cognitive Bias in Mediation: Fundamental Attribution Error

Massachusetts family mediationPeople tend to process information through some of the same filters over and over again. We call these filters “cognitive biases.” They are hardwired into our brains.

One particularly strong bias is called “fundamental attribution error.” When something good happens, we tend to overestimate the role of our own effort and intention. For instance, a store manager might say, “The changes I made helped us make more money last year,” even though it happened at the time the whole industry was expanding. On the other hand, when something bad happens, we are tempted to assign moral blame.  For instance, in a family mediation in which one party has experienced an injury or illness, the other party will often say, “I know she got hurt, but she really could be fine now if she worked harder at it.” In other words, people do have a subconscious tendency to congratulate themselves and blame the alleged victim.

Both sides of the fundamental attribution error coin come up often in business and family mediation. The mediator first has to decide if it is a barrier to resolution, creating significant difficulties on one or both sides, or if he can safely ignore it. If it is a barrier, he has many options.  He can engage in reality testing, although he should read the parties carefully to be ready to address any explosive pushback if emotions run high. He canhold up a mirror to the party most entrenched or float the fairness bubble.  His goal is to see if the parties’ perspective can be shifted so they can get past the issue.

For the parties, fundamental attribution error can be offensive. People do not like listening to boastful language that implicitly or explicitly denigrates their role in positive developments. At the same time, people do not like listening tolanguage thatimplicitly or explicitly blames them, often by laziness, for not escaping externally imposed constraints. As a party, one can spin the language to increase or decrease the other party’s perception of one’s fundamental attribution error to increase or decrease the other party’s annoyance.  Annoyance often stands in the way of resolution, but sometimes, if people are motivated by a desire to overcome the taint, it can be an impetus. The implicit message to which some parties respond is, “Prove to me you are capable.” Parties who are using the mediator to convey messages should be up front about their goals, since mediators sometimes filter out emotional content in order to keep the focus on the elements of resolution.

Fundamental attribution error: acknowledge its presence, then choose to use it or try to bypass it.