Monday, September 30, 2013

Civil collaborative

Collaborative law has firmly established itself in the family law arena, where parties (and attorneys) are often willing to commit in advance to do everything they can to resolve divorce cases out of court. Not so much on the civil side, where the whole idea appears antithetical to traditional litigators. There have been attempts in the past to make civil litigation more, well . . . civil, but the codes that were created in some jurisdictions to encourage more gentlemanly (or ladylike) conduct never seem to get at the root of the problem. The root of the problem lies in the nature of the adversarial system itself, and its tendency to encourage adversarial behavior.

More recently, however, it seems that an increasing number of civil litigators may be starting to experiment with ways of resolving contested civil cases with little or no reliance on the court, or at least with trying to reduce the cost and acrimony associated with discovery, motion practice, and other nasty features of civil litigation. Some call this movement "planned early negotiation;" others call it holistic or integrative law. In some ways the idea seems a throwback to a bygone era (which may never have existed) in which attorneys maintained more trusting relationships with opposing counsel, and attempted to resolve disputes in a reasonable way. A more collaborative approach also seems to flow naturally into mediation, as opposed to the way mediation usually arises in hotly contested cases, as a temporary truce called in the middle of a war.

Because of the importance of this topic, we are thinking of adding a panel to the advocacy track of the SCMA fall conference this year, or perhaps a program next year, discussing where civil collaborative practice came from and where it might be heading. When I discussed the idea this week with Woody Mosten, one of the pioneers of collaborative law, I told him I myself have been shifting my own approach to litigation in this direction: trying to keep clients out of court altogether, and trying to resolve problems in litigation with less court assistance. I still feel the need, however, to keep the hammer of litigation in my back pocket. Woody made a disapproving face when I said that, indicating that he did not think my thinking had evolved sufficiently on this issue. It probably hasn't.

What I understand from others who have tried to advance the discipline of civil collaborative is that most civil trial lawyers feel the same way I do. Thus, one of the chief stumbling blocks to developing civil collaborative practice has been the resistance of civil trial lawyers to sign participation agreements of the type recommended in family law cases, in which the attorneys who work on resolving the case agree in advance that if they fail to achieve an agreement, they will not be the attorneys representing the clients in any court case. Are such agreements essential to the practice of collaborative law? Or can we develop a species of more cooperative dispute resolution in the civil area that does not require the use of participation agreements?

I think it's possible to achieve better results in litigation by attempting to resolve issues in cases without motion practice, and by relating to opposing counsel with a view toward reaching settlement, rather that conducting settlement discussions only as a time out from unrelenting hostility. It's even possible to resolve disputes without filing a complaint at all. The difficulty arises when opposing counsel has not signed on to the same program. And that is where the collaborative family lawyers are probably a step ahead of the civil litigators who are attempting to practice in a more cooperative way. 

Thursday, September 19, 2013

Constructive Engagement

The recently-elected President of Iran, Hassan Rouhani, is starting to sound like a mediator. Today Rouhani published an op-ed piece in the Washington Post, in which he said the following: 
The world has changed. International politics is no longer a zero-sum game but a multi-dimensional arena where cooperation and competition often occur simultaneously. Gone is the age of blood feuds. World leaders are expected to lead in turning threats into opportunities. . . . 
In a world where global politics is no longer a zero-sum game, it is — or should be — counterintuitive to pursue one’s interests without considering the interests of others. A constructive approach to diplomacy doesn’t mean relinquishing one’s rights. It means engaging with one’s counterparts, on the basis of equal footing and mutual respect, to address shared concerns and achieve shared objectives. In other words, win-win outcomes are not just favorable but also achievable.
Perhaps the diplomatic breakthrough achieved this past week on removing chemical weapons from Syria is only the prelude to an even bigger breakthrough: moving toward improved relations with Iran. If so, this olive branch from Iran should be given at least as much attention as the posturing op-ed piece from Russia's President Putin in last week's New York Times. (see my prior post) We know that President Obama, while tightening sanctions on Iran and making clear that Iran's acquisition of nuclear weapons would be unacceptable, has also been interested in opening a dialogue with Iran at least since he expressed a willingness to do so in the 2008 campaign. Finally he may have a receptive negotiating partner.

Crisis and opportunity, indeed.

Monday, September 16, 2013

Carrots and sticks

The most high profile negotiations in the world this weekend took place in Geneva, where the U.S. and Russia announced agreement on a framework for the surrender of chemical weapons by the government of Syria. Apparently discussion of this issue has going on for a long time. The idea of disarmament by the government of Syria did not simply arise in response to its recent chemical weapons attack. We might therefore try to analyze this agreement using modern principles of interest-based bargaining. Syria and Russia have an interest in resolving a terrible civil war (they are hoping to resolve it in favor of the government of Syria). They also have an interest in trade and decent relations with other countries in the region and the world. They want some degree of acceptance in the community of nations, and do not want to be seen as "outlaws." By giving up Syria's stockpile, they gain on all these points, and they therefore have good reasons to make an agreement even apart from the threat of force by the U.S., France and others.

Alastair Grant/AP
Looking at this situation in a more conventional way, it seems apparent that nothing pushed the parties to agreement until the U.S. and other countries threatened military action in response to Syria's recent dastardly attack. Secretary of State Kerry continues to insist that the agreement to confiscate Syria's chemical weapons must be backed by force. He was quoted in a meeting with Prime Minister Netanyahu as saying, "We cannot have hollow words in the conduct of international affairs." This diplomatic breakthrough can therefore be seen as merely the continuation of war by less destructive means. Civilized nations are entitled to enforce a convention (or at least a norm, since Syria never signed the treaty). If a country commits a gross violation of such an international norm, sanctions may be imposed. To avoid those sanctions--to avoid the imminent threat of being bombed--Syria says it will to submit to an agreement to obey these international norms. It's mostly a matter of who has the power, and whether they are willing and able to use it. Nations obey the rules when other nations impose meaningful sanctions for violations.

When we negotiate resolution of any sort of conflict, we may take for granted that we are usually doing it in the shadow of a more coercive and destructive form of conflict resolution. (In the international sphere, that means war. In the private sphere, that means courts.) Do we make agreements mostly because we understand the rules and know the consequences of breaking them? Alternatively, can we imagine a system of conflict resolution that does not require a backdrop of air strikes, economic sanctions or courts? Can we imagine nations, and individuals, reaching understandings based purely on enlightened self-interest and respect for the legitimate interests of others, without the need for the threat of force to compel and enforce those agreements?

Thursday, September 12, 2013

Crisis and Opportunity

The September issue of Advocate magazine (published by CAALA, the Consumer Attorneys Associations for Southern California) contains an article I wrote prompted by the funding crisis in California courts. These court cutbacks, which will cause delays and other problems in working cases through the court system, should cause the consumers of court services--both litigants and attorneys--to rethink the way they use the court system.

The title is borrowed from the fall conference I am helping to organize for the Southern California Mediation Association. Part of my article describes the new "Select a Mediator" program designed by SCMA in response to the closure of the LA County Superior Court's ADR program.

I also offer some suggestions for conducting litigation in an era where courts have fewer resources to deal with motions and trials. Lawyers and litigants are going to have to negotiate their way through pre-trial proceedings without bringing every controversy to a judge. That's a necessity caused by budget cutbacks, but doing that might also prove to benefit the parties by reducing the costs of court resolution of every dispute within a case.