Collaborative Practice

An International Perspective

Connie Healy

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138948761
• eBook ISBN: 9781317364184
• Edition: 1
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Collaborative practice is a new method of dispute resolution, used mainly in family law matters. By taking a non-adversarial approach, it challenges the strictly positivist view of the lawyer as 'zealous advocate' for the client. As such, it has received much criticism from the established Bar and legal profession.

This book provides a doctrinal and empirical analysis of collaborative practice with a view to assessing its place within the dispute resolution continuum and addressing whether this criticism has been justified. It begins by establishing the theoretical underpinnings of conflict and differing approaches to conflict resolution, the impact of the comprehensive law movement and therapeutic jurisprudence. The origins and development of the collaborative process and the framework it provides for a multidisciplinary approach to conflict resolution is outlined. The book addresses the examination of the process undertaken in the lead up to the enactment of the Uniform Collaborative Law Act in 2010; now regarded as a model of best practice. Finally, through an examination of empirical research undertaken in the US, Canada and in England and Wales, and in presenting the results of the first known empirical research into the process in an Irish family law context, the book concludes with an evidenced based analysis of the process from the perspective of couples who chose to use the collaborative model to resolve the issues surrounding their relationship breakdown, collaborative lawyers and lawyers who do not advocate a non-adversarial approach.

As such this book provides a valuable insight into the process which will be of interest to: academics; practising lawyers; members of the judiciary; researchers in the fields of conflict resolution and family law and for students studying alternative dispute resolution (ADR).

1 The theoretical foundations of collaborative law and alternative dispute resolution

Introduction

In beginning to examine the effectiveness of any process, it is important to consider the theoretical perspectives upon which it is based. In the past, much criticism has been levied against ‘alternatives’ to the courts’ system. Twining, for example, commented that the ‘the vast bulk of mediation literature is atheoretical.’¹ Many see the paper given by Frank Sander at the Pound Conference in 1976 when he spoke about the idea of a ‘multi-door courthouse’ as the beginning of a change in thinking.² Another important milestone was the publication of Getting to Yes³ in 1981, addressing the potential benefits of negotiating settlement rather than taking an adversarial approach. As Menkel-Meadow⁴ notes, however, in taking either of these approaches, we may be:

failing to pay enough serious attention to earlier ‘intellectual’ founders of ADR – those who provided the key ideas, concepts or organizing frameworks from which we have built our modern movement of theories, practices, policies, and institutions.⁵

This book, in addressing the origins and development of collaborative practice and in presenting the results of original empirical research undertaken into the process,⁶ will begin by examining the theoretical underpinnings of alternative dispute resolution (ADR) and the writings of these ‘intellectual founders’. Specifically, this chapter will explore the concept of ‘conflict’ and the extent to which it can be a positive rather than a negative force.⁷ It will highlight the importance of examining the ‘ecology of human development’,⁸ the way in which society forms into ‘groups’ and the manner in which tensions and hostilities are addressed and disputes transformed, within and between those groups.⁹ Next, the importance, if any, of the ‘process’¹⁰ used in resolving these disputes and issues surrounding the concept of ‘procedural justice’ will be discussed. Central to this is the move from more traditional forms of resolution, namely: adjudication by the courts, to ‘ordinary lawyer negotiation’¹¹ within the courts’ system; the role that clients and their lawyers play in ‘adding to’ or ‘cooling down’ the dispute; and the place of collaborative practice within this dispute resolution continuum. The chapter will conclude by addressing the extent to which collaborative law or collaborative practice can be considered to be part of the ‘comprehensive law movement’¹² and the wider ‘field of inquiry’ that is therapeutic jurisprudence.¹³

The theory of alternative dispute resolution and the importance of understanding conflict

Menkel-Meadow, in seeking to identify the theoretical frameworks from which the field of alternative dispute resolution or conflict resolution emanates, opines that the field of ADR is ‘richer for multiple sources of insights and sensitivity to the interactive effects of law and legal institutions with other social institutions.’¹⁴ She notes that alternative dispute resolution is ‘situated in the broader intellectual space of the sociology or philosophy of the role of conflict.’¹⁵

While initial perceptions of conflict may have portrayed it in a negative light, referring to it as having ‘disruptive, disassociating and dysfunctional consequences,’¹⁶ Coser, in examining the ‘functions’ of conflict comments that:

groups require disharmony as well as harmony, dissociation as well as association; and conflicts within them are by no means altogether disruptive factors … Far from being necessarily dysfunctional, a certain degree of conflict is an essential element in group formation and the persistence of group life.¹⁷

Simmel and Coser, ‘see conflict as variable: sometimes “destructive,” but sometimes “constructive” or even creative … an opportunity for learning and growth’¹⁸; a positive force, enabling problems to be aired leading to creative problem solving. Mary Parker Follett also spoke about ‘constructive conflict.’¹⁹ She noted that:

As conflict – difference – is here in the world, as we cannot avoid it, we should, I think use it. Instead of condemning it, we should set it to work for us … The music of the violin we get by friction … We talk of the friction of mind on mind as a good thing. … we have to know when to try to eliminate friction and when to try to capitalize it, when to see what work we can make it do. That is what I wish to consider here, whether we can set conflict to work and make it do something for us.²⁰

For Follett there were three ways to deal with conflict: through domination, compromise or integration. She favoured the idea of integration, finding a solution that was conducive to all and not one in which any party would unduly compromise or dominate. In promoting integration, she also highlighted the importance of taking an interdisciplinary or multidisciplinary approach in how issues are resolved.

Significant, also, in Follett’s work was her appreciation of the differences that may lie between an individual’s ‘declared motives’ for the conflict and their ‘real motives’ and the need to ‘get underneath all the camouflage, to find the real demand.’²¹ She was acutely aware that in some instances this deception may be deliberate but that it may also ‘exist unconsciously’²² to the person in dispute; these ‘unconscious’ reasons may, in modern alternative dispute resolution terms, be considered the parties’ ‘interests’. Follett acknowledged the need for differing approaches once such ‘motives’ have been uncovered: on occasions to break a problem down into its constituent elements and, in other instances, to view it as a whole. Negotiation may then begin by addressing the ‘costless’ or less important concessions first, before moving on to the more contentious issues with a view to creative problem-solving.²³

Coser however, cautions that left to their own devices, some social conflicts may be infinite. To ‘prevent their struggle from becoming a zero sum game in which the outcome can only be total defeat or total victory,’²⁴ feuding parties need to have a ‘common interest’ in agreeing ‘explicit provisions’ as to what constitutes the end of the conflict.²⁵ Once these parameters or ‘symbols’²⁶ are in place, ‘[t]ermination of conflict becomes a problem to be solved by both parties.’²⁷ It will be argued throughout this work that the ability to appreciate the need for such parameters, and to be able to set realistic goals, effectively determines feuding parties’ ability to engage in different forms of dispute resolution mechanisms along the continuum.

The social context

What impacts on disputants’ ability to set these parameters? Conflict, as already noted, is a social construct. Thus, in examining its role, it is necessary to explore the societal factors that impact on its development and resolution. Some of these matters are within disputants’ control. Others, perhaps not.

An understanding of what Bronfenbrenner describes as the ‘ecology of human’ development helps to understand the way societies operate, the multi-layered web into which disputants are born.²⁸ Bronfenbrenner usefully described a series of ‘systems’ which, in his view, allows humans to develop in a manner similar to a ‘set of nested structures, each inside the next, like a set of Russian dolls.’²⁹ The first system he identified was the ‘micro-system’. This, he believed, represented the immediate relationships that people have in their lives. For example, the relationship between a parent and a child, between a child and a teacher. The next level, Bronfenbrenner described as the ‘meso-system’, namely, the relationships between differing ‘micro-systems’: the child’s home and school environment combined and how they may influence each other. Beyond these immediate relationships, Bronfenbrenner noted how factors outside of an individual’s direct environment, what he termed the ‘exo-system’, may also impact on their lives: a parent’s relationship with their work environment may impact on the family, in a situation where a parent, perhaps, becomes unemployed. Losing a job may not be relevant to the immediate issues at dispute but will obviously affect how matters are resolved. Finally, wider social policy and developments, at national or international level, form part of what Bronfenbrenner referred to as the ‘macro-system’, or society’s plan.

In conducting his research, Bronfenbrenner focused on examining human behaviour not in a laboratory-controlled environment, but in a way that explored how people actually live their lives. This corresponds to a phenomenological approach: the study of ‘human lived experiences’;³⁰ particularly relevant in family law matters, in which each family’s circumstances are unique. Bronfenbrenner was also cognizant of the impact of time. Douzinas, too, as a postmodern legal scholar, notes that the ‘[t]ime of justice differs from the time of interpretation.’³¹ Issues that have caused hurt or conflict when a relationship breaks down may be less relevant when a case comes to a court hearing or settlement.

Coser’s work on the functions of social conflict, referred to earlier, is also insightful in understanding the importance of ‘groups’³² that tend to form naturally within these ‘systems,’ and in understanding the extent to which groups will seek to protect and maintain their members. When a threat arises from something outside of the group, the group tends to mobilise to protect itself.³³ ‘Family’, with its varying definitions,³⁴ is possibly the most immediately recognisable ‘unit group’ within society, and has been recognised as such at national and international level. Recognising that there can be ‘a directing of antithetical feeling (affectionate and hostile) toward the same person’³⁵ within close personal relationships, if the actions of one of the parties threatens the preservation of the group, the conflict is often more deep-seated and difficult to res...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of cases
• Table of statutes
• Abbreviations
• Introduction
• 1. The theoretical foundations of collaborative law and alternative dispute resolution
• 2. The process and the unique features of collaborative practice
• 3. The advent of the Uniform Collaborative Law Rules/Act 2010 and the ripple effect
• 4. What has the research revealed?
• 5. Exploring the development of collaborative practice in Ireland
• 6. In conclusion …
• Bibliography
• Index