Collaborative Law and Mediation
According to a widely told story, Minneapolis family law attorney Stu Webb, after some 26 years of practice, came up with a radical idea against the established grain.
In a particularly difficult divorce case he decided to work with the opposing attorney. He proposed sharing information and if the two could not reach agreement, he would not bring the case to court. Webb called the concept of a separate settlement counsel who would not litigate cases as “collaborative law.” As the model developed, cooperating attorneys and their clients began to bring in other professionals, such as financial advisers and mental health professionals, as needed.
The term has also become part of the discussion as to how the practice of lawyering is changing. This is led by Julie Macfarlane, Forrest Mosten, and others who see the future as attorneys who are, in the words of Michael Leathes, “solution and results-orientated, process-intolerant, favouring (and skilled in) negotiation, mediation, collaborative practice and restorative justice.”?Widely respected practitioner Forrest (“Woody”) Mosten has been a strong advocate for family mediation and unbundled legal services where attorneys provide advice along with other appropriate professionals. Mosten has been a strong advocate for the paradigm shift that changes the power dynamic between lawyers and clients so the client takes more responsibility for problem-solving and decision-making, as well as for mediators to be part of the collaborative divorce process.
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Many family law groups offer the collaborative approach, but its use for other civil matters has been limited. Some types of cases that have benefitted from collaborative law include disputes between business partners, construction, wills and estates, and other kinds of family law cases. ?As collaborative law evolves, the role of mediation in the process is evolving as well, but at base, parties in a collaborative case can bring in a mediator to assist in the negotiations.
No laws need to be enacted to advance collaborative law. Attorneys can utilize any dispute resolution process. The only change necessary is for attorneys to set directive adversarial approaches aside for an approach that emphasizes relationships over winning.