Arbitration & Mediation

The ABA Approves the Oxymoron of Collaborative Litigation

By Victoria Pynchon

The ABA Ethics Committee has given the green light to collaborative law agreements -- considered unethical in Colorado -- so long as the clients give their informed consent.  See Putting a Kinder Face on Litigation.  Excerpt below:  

“When a client has given informed consent to a representation limited to col­laborative negotiation toward settlement, the lawyer’s agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client’s limited goals for the representation.”

The oxymoron?  Litigation is definitionally a "contentious tactic" pursued for the purpose of making someone else behave in a way they do not wish to behave == to pay money they do not want to pay; to accept less money than they are demanding for the injuries they claim to have suffered; to refrain from trespassing on your land or demonstrating on the street in front of your house or performing on a contract they contend does not require them to obey.

Why is litigation a "contentious" tactic?  Because its entire purpose is to overcome the will of another.  It is not an invitation to dinner to discuss the dispute in an attempt to find common ground.  Does litigation  sometimes lead to collaboration?  Most certainly, as do other contentious tactics such as persuasive argumentation, ingratiation, and violence -- all of which can serve to bring the parties to the bargaining table.

I am all in favor of collaborative processes for the resolution of disputes.  It's what I do for a living for heaven's sake.  But I am also an advocate for the preservation of meaning in the English language.  Collaborative litigation is a contradiction in terms.  And if you want your client's informed consent to anything, it would be best to remember that the "litigation" part of collaboration remains the iron fist inside the velvet glove.

Full post as published by Settle It Now Negotiation Blog on January 18, 2008 (boomark / email).