Alternative Dispute Resolution Practice – Mediation and Collaborative Law
I have practiced law for twenty-five years. For most of that time, I have been a certified mediator and arbitrator. Mediation, unlike arbitration or lawsuits in court, offers parties the ability to resolve their dispute on their own terms. I have served as a mediator since 1995. I have mediated employment cases for the Equal Employment Opportunity Commission and cases pending in federal court. I have mediated securities cases involving both customer and industry disputes. I have mediated small claims cases and cases with millions of dollars at stake. I have mediated commercial disputes and sports management disputes.
Mediation is a voluntary, collaborative process intended to assist disputing parties in finding a legally-binding solution to their disputes. The process is informal. The parties may discuss the factual and legal issues and any other matters that they deem pertinent to the dispute. All those in attendance will have a full opportunity to be heard. The parties to a mediation seek to determine their own solution through a negotiation facilitated by the mediator. The attending parties, or their representatives in attendance, should have authority to agree to a legally binding solution to the dispute. The parties are not required to reach a settlement, but if the parties do reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.
The mediator serves as a neutral and impartial facilitator of the negotiations. The mediator is not the legal representative of either party. In providing mediation services, the mediator does not engage in the practice of law. The mediator does not decide the outcome of the dispute. The mediator does not predict the specific resolution of a legal issue, nor does the mediator counsel or direct the party or parties to take any particular course of action. The mediator does not give professional advice of any kind to either party, nor does the mediator act as an advocate for either party. While the mediator may suggest possible options by which to resolve a dispute, the mediator does not usually recommend any particular solution since it is up to the parties to make the ultimate decision. The mediator does not provide legal advice, each party to mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.
Recently I have been introduced to the client-entered solutions made possible through collaborative law. Collaborative law, according to the preamble of the 2010 draft of the Uniform Collaborative Law Act, “is a voluntary, contractually based alternative dispute resolution process for parties who seek to negotiate a resolution of their matter rather than having a ruling imposed upon them by a court or arbitrator.” This draft document offers an excellent overview of collaborative law, its applications, its practitioners, its strengths, and its limitations. For anyone considering resolving a dispute through this approach, I recommend downloading and reading it; access is here. Alabama is one of only fourteen states in the United States to adopt a version of the Uniform Collaborative Law Act.
Collaborative law is somewhat similar to mediation, in that it requires voluntary disclosure and results, when it is successful, in an agreement created by the parties. But there is no mediator, and the attorneys representing the parties are both usually present during negotiations, assisting the parties in working on crafting their own agreement.
I am now endeavoring to incorporate collaborative law principles into my practice. I joined an entity called the Birmingham Collaborative Alliance, a group of legal, financial, and mental health practitioners committed to collaborative practice. I also joined the International Academy of Collaborative Professionals, which describes itself as “an international community of legal, mental health and financial professionals working in concert to create client-centered processes for resolving conflict.” Additionally, I have now added domestic relations and divorce to my practice, but I am accepting only those clients who agree to utilize the collaborative law approach to resolving their domestic issues.
Virtually all collaborative law practitioners in Alabama practice exclusively in the area of domestic relations, though collaborative law principles should be useful in a number of other fields. Similarly, most discussions of collaborative law focus on its use in domestic relations law (see this Wikipedia article), and the early practitioners of this style of resolution have indeed been specialists in that field. But collaborative law offers benefits in many other areas of legal disputes — probate law, construction law, shareholder disputes in small and medium-sized businesses, minority shareholder oppression matters, business partnership dissolutions, and wrongful discharge claims. Collaborative law solutions should be considered in any dispute where the parties would like to avoid the expense and the public exposure of litigation while also attempting to preserve value — in a business, in family property holdings, in the care and support for children. Like mediation, collaborative law offers parties the benefit of crafting their own resolution to their dispute rather than having a resolution imposed upon them. I encourage businesses and individuals with disputes of any kind to consider the possibility of resolving those disputes through a collective effort designed to address the problem and imagine and create new solutions — collaboratively.