Party Autonomy in Choosing Dispute Resolution Processes

FOI (Friend of Indisputably) John Lande (Missouri) provides this guest blog post to shed light on some recent Collaborative Law Developments.

There were two recent decisions involving Collaborative Law that have larger implications about parties’ autonomy in choosing dispute resolution processes generally. In my view, this is a good news-bad news story as one of the decisions recognized parties’ capacity to make decisions about what dispute resolution process to use and the other did not.

First, the good news. On Aug. 19, the Texas Supreme Court let stand the decision of the Texas Court of Appeals in In re Mabray, 2010 WL 3448198. This case involved a divorce where the parties used a Cooperative process. As readers may know, in Collaborative Law (or Collaborative Practice, as practitioners prefer to call it), the parties signed an agreement to negotiate with a disqualification provision, which prohibits both Collaborative lawyers from representing their clients in a contested proceeding. Cooperative Practice is somewhat similar but does not include the disqualification provision. In this case, the parties signed an agreement to use a Cooperative process, which did not result in an agreement. The wife then tried to disqualify the husband’s lawyer in subsequent contested proceedings, arguing that Cooperative Practice was against public policy because the Texas ADR statute did not specifically authorize it. She argued that Cooperative Practice was similar to Collaborative Practice and therefore the husband’s attorney should be disqualified from representing him. The majority of Texas Court of Appeals supported the husband’s position and the Texas Supreme Court declined to hear the case. The decision is significant because it upholds people’s right to use dispute resolution procedures even if the law does not specifically authorize the procedures. Can you imagine the implications if the dissent prevailed and people could use only dispute resolution procedures that were pre-authorized by law?

The bad news is that, on Aug. 8, the ABA House of Delegates rejected Resolution 110B supporting the Uniform Collaborative Law Act (UCLA). This issue prompted passionate arguments before and during the floor debate. The resolution was rejected by a vote of 298-154, or almost a 2 to 1 margin. The Uniform Law Commission planned to seek ABA approval at two prior meetings but withdrew the resolution at those meetings because of uncertainty about how the vote would turn out. One of the opponents’ arguments was that prospective Collaborative parties are incapable of giving informed consent to the Collaborative disqualification provision. This is ironic, to say the least, considering that numerous ethical rules require clients’ informed consent to a wide range of activities including representation of clients despite potential conflicts of interest. Moreover, the UCLA has much more demanding requirements for clients to consent to use Collaborative Law than most other procedures, including litigation, arbitration, and mediation, which all involve significant risks. (As a matter of disclosure, I was an independent observer to the UCLA drafting committee and particularly focused on the informed consent provisions.) The ABA’s decision was disappointing, though states are free to adopt the UCLA and several states have already done so.

Collaborative and Cooperative Practice (which are forms of what I call “planned early negotiation”) have strengths and weaknesses, like all dispute resolution processes and other human institutions. I have written a lot about them and you can download my writings from my website, Regardless of one’s views about these particular procedures, I think that dispute resolution professionals should generally favor promoting parties’ decision-making about what procedures they want to use in resolving their disputes. From that perspective, I think we should applaud the Texas court decision and regret the ABA decision.