Outside the family: Attorneys see more openings for collaborative law

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Divorces can be bruising—not least of all for the attorneys involved. Frustration with the scorched-earth mentalities that often engulf them helped spur the development of collaborative law, a process in which lawyers seek to sap some of the emotional venom by helping the estranged spouses directly negotiate a mutually acceptable resolution, without involving any neutral third party.

The hope is that the parties can thus walk away still on speaking terms.

Collaborative law is so far largely unknown outside of the family law context. But a group of North Carolina lawyers is working to expand the concept to other areas of the law, particularly to arenas such as business disputes and construction law, where the disputants have existing relationships that are similarly worth preserving.

John Sarratt of Harris Sarratt & Hodges in Raleigh is the president of a non-profit organization called the North Carolina Civil Collaborative Law Association that was formed this year with the mission of raising awareness about the collaborative process and developing a market for practitioners outside the family law context. Many of its members attended a training workshop on collaborative law in Cary earlier this month, the fourth such training Sarratt has helped to organize across the state.

The collaborative method has similarities to other types of alternative dispute resolution such as mediation, but Sarratt said that the process differs from mediation in several key respects, most notably in that the process is largely client-driven. Additionally, the attorneys who advise each party are contractually prohibited from serving as counsel if the process breaks down and parties proceed to traditional litigation. Sarratt said that this keeps the participants focused on negotiating a solution rather than positioning themselves for further litigation.

“In mediation it is rare that the parties speak to each other. The lawyers state their positions and then the parties probably don’t see each other again until they leave the building. In a collaborative process from the very beginning, the clients are sitting at the table across from each other,” Sarratt said. “The only incentive is to bring the parties together, if it’s possible, and reach a solution.”

Sarratt said that in situations where the collaborative process is viable, it raises the possibility of saving the parties time, money and aggravation. For instance, rather than having each side hire—and pay for—its own expert witness, parties participating in the collaborative process might agree to hire one neutral expert to render an opinion and share the cost.

The new non-profit group’s training events have focused on teaching conflict resolution techniques, many of which draw from Roger Fisher and William Ury’s influential book, “Getting to Yes,” which was first published in 1981 and is still taught in many law school curricula. The idea is to shift discussions away from parties’ emotions and towards the needs and interests that underpin their conflicting positions, with the hope of finding a solution that can satisfy both sides’ needs. The process is designed to give parties more flexibility to generate creative solutions that couldn’t be produced via litigation.

Ashley-Nicole Russell, an attorney in Greenville who attended the Cary event, has a family law practice devoted to collaborative dispute resolution. She said she hopes to be able to expand her collaborative law practice into other fields such as business law, and particularly for disputes involving family-run businesses. The process involved in unwinding such companies is often very much like that of a divorce, she said, partly because crucial decisions are often imposed upon the parties by an outside arbiter.

“Nobody knows a business like that business’s owner,” Russell said. “If there’s corporate divorce, these parties have relationships as well, and it’s easy to utilize the collaborative process in that respect, to bring all the parties to the table, find out what the real problems are and address those in the same context that you’re addressing the legal issues. It addresses the emotional and legal issues around conflicts.”

Not every type of dispute lends itself to the collaborative process. There was at one point a hope that it might find a niche in medical malpractice cases, another venue where the litigants are often very emotionally invested in the case—doctors often feel under attack and patients often want nothing so much as an apology. But in practice it turned out to be difficult, Russell said, because insurance companies’ business models weren’t made to accommodate such a process.

But Sarratt’s group sees other possible opportunities. Nicole Slaughter, an attorney with Hamlet & Associates in Wilmington who practices construction law, thinks that collaborative dispute resolution would be well suited to her practice area, where disputes often flare up among contractors and subcontractors that are likely to do business again in the future. The cost and time involved in the traditional litigation process can sometimes bring construction projects to a sudden halt, she said.

“There are a lot of different applications for this, and I think there’s a need for it,” Slaughter said. “The public wants other ways of resolving disputes.”

The attorneys who spoke to Lawyers Weekly said that North Carolina was out front of most states when it comes to extending collaborative law beyond its traditional roots in family law. Slaughter said that when she talks to construction law attorneys in South Carolina, they have little idea what she’s talking about. (The president of South Carolina’s academy for collaborative law professionals confirmed that it is still mainly confined to family law in her state.)

The dispute resolution section of the North Carolina Bar Association, which hosted the event in Cary, has since 2014 had a collaborative law committee; Sarratt is currently the chair. The training events began last year and Sarratt said that as of the most recent one, the state now has over 100 trained non-family law collaborative law practitioners. He said that the next step is to try to find work for them, and that he was optimistic that there would be strong interest in the process as more clients learn about it.

“The collaborative element in the process is the lawyers themselves. The reason you train the lawyers and have lawyers represent each client is to guide the process,” Sarratt said. “It’s a much faster process, it’s a less expensive process, it’s a process that maintains and may even improve relationships, and it stays completely out of court.”

Follow David Donovan on Twitter @NCLWDonovan