- Collaborative law facilitates resolution with independent attorneys (they are chosen separately and then agree to cooperate). Co-resolution facilitates resolution with dependent negotiators (they come as a package deal and share a cooperative relationship).
- Collaborative law is designed to produce a negotiated settlement. Co-resolution is designed to produce reliable, cooperative negotiation methods throughout the process.
- Collaborative law is a type of legal advocacy and therefore requires attorneys. Co-resolution is a separate, independent process that only requires mediation-trained professionals.
Containing Cooperation.
As is has been identified in collaborative law, a "container" is a mechanism that limits the interaction between disputing sides to negotiation and settlement. Such a container is absolutely necessary in bringing two partisan negotiators to focus on cooperation.
In 1985, the great Roger Fisher proposed the idea of settlement counsel--attorneys that focus entirely on negotiating a resolution with the other side. However, the idea did not take off because, like the negotiation strategy in Getting to Yes, there was nothing holding the other side to limit themselves to the same cooperative approach. And because an experienced negotiator can covertly pursue one-sided advantages and a hard-nosed litigator can stall negotiations until they bring the unprepared opponent into court, it is not wise for one side to focus entirely on settlement. While the great minds in law and ADR were trying to invent a method for bringing the parties to focus on settlement (but thinking only from the perspective of one side trying to strategically affect the other), little-known Stu Webb came up with the idea of focusing both sides on settlement by creating a container around the negotiation process.
Webb's container is formed by opposing lawyers signing a contract stating that neither will litigate (containing the interaction to settlement negotiation) and that if the case goes to court, both lawyers will withdraw (enforcing the container). The success and popularity of this approach show that, for both sides to focus on assisting disputants in negotiation and negotiation alone, there must be some kind of container that prohibits selfish, adversarial strategies.
While the container created in collaborative law involves two parties seeking independent attorneys and then the attorneys limiting their assistance via contract, co-resolution creates a container by offering both negotiators/coaches ("co-resolvers") as a single service or process. Just as in collaborative law, the assistance provided is limited to negotiation because if the parties terminate the negotiation, they also terminate the assistance of both negotiators. However, the difference is that co-resolution creates a more tightly-knit, deliberate container.
In co-resolution, not only does the process end when the parties give up on negotiation, but the co-resolvers share a dependent relationship that influences their behavior and enforces cooperation.
As continuing partners in a single dispute resolution service who assist conflicting parties, the co-resolvers will negotiate against each other repeatedly. Because adversarial and deceptive negotiation tactics would be reciprocated later by the other side or at least sour their working relationship, both co-resolvers will fully cooperate with each other and coach their assigned parties in cooperative negotiation. And because the parties profit from this assistance, they have incentive to act under the co-resolvers' cooperative strategy. The need to maintain good relations across the table also prevents either co-resolver from overpowering the other side or supporting unreasonable positions (assertions that would offend a long-term negotiating relationship). Because both co-resolvers obey this ethic, the process will be balanced, fair, and neutral.
While collaborative lawyers can preclude litigation and motivate settlement, signing away the ability to go to court does not create this level of reliable cooperation and balanced advocacy.
Thus, instead of choosing independent attorneys--a role that is adversarial by design--and then wrapping them around a collaborative forum, co-resolution cuts right to employing two collaborative negotiators/coaches in a single, stand-alone process and then designing them to be cooperative and balanced.
The Four-Way Negotiation.
Comparing the negotiation procedures of co-resolution and collaborative law is slightly difficult because the later was developed organically, organized locally, and conducted by independent attorneys. As a result, practices and conceptions in collaborative law vary among local practice groups, legal scholars, and individual lawyers. Most notably, while the organization and boundaries of the forum (two attorneys agreeing to negotiate) are uniform, the procedures for conducting the negotiation do not seem to be set. The best I can nail down is that both attorneys use a variety of roles--including coach, advocate, problem-solver, and facilitator--and operate under methods described in Getting to Yes. Broad roles and values may be common to the ADR-focused attorneys that do collaborative law, but because they operate independently, there does not seem to be a uniform procedure that both sides employ.
Co-resolution, on the other hand, was developed in a laboratory setting and is conducted by two negotiators that are very familiar with each other--it therefore comes with a defined, mutual method of operation. Under the defined co-resolution strategy, each co-resolver directs supportive roles (coach, advocate, negotiator) to their assigned party and acts as a mediator to the other side--focusing them on interests, bringing them to expand their options, and explore solutions (anything that generates movement towards resolution). The most important part of this concept is that each co-resolver fully imitate a mediator only to the other side, together creating the effects of a single mediator but eliminating the need for impartiality. This set strategy provides each co-resolver with a consistent direction (assisting Party A and conciliating Party B constantly serves the interest of Party A) and organizes their efforts so that neither will violate party-loyalty by supporting/conciliating the wrong side. Furthermore, the co-resolvers follow a set sequence that parallels the seven-stage mediation model.
Therefore, while collaborative lawyers seem to operate the four-way negotiation with broad negotiation strategies and an undefined sequence, co-resolution (like mediation) offers specific guidelines for conducting the process. This is not to say that co-resolvers cannot develop their own methods or that familiar collaborative lawyers cannot use the co-resolution strategy (supporting one side, conciliating the other). The difference is that co-resolution is a more deliberate, organized process.
As a final note, some of the writing on collaborative law mention that the attorneys can provide the benefits of legal advice to their clients within the process. This is admittedly absent in co-resolution, where even attorneys acting as co-resolvers should not mention how a court would apply the law to the situation. However, I question whether legal advice is appropriate in collaborative law as well. First, agreeing not to litigate should take the parties' focus from legal rights to personal interests. Second, what a court may say should have no bearing, unless the agreement is so illegal that both attorneys fear that it would be overturned by a reviewing court.
In summation, collaborative law and co-resolution attempt to do the same thing, but the former does so with independent counsel who control behavior with contracts/rules, and the later does so with a team of mediation-trained professionals who operate under a close relationship and defined procedures. These differences in approach should produce significant differences in outcome.
Posts
No comments:
Post a Comment