You probably know – or at least know of – Forrest (Woody) Mosten. He is the award-winning mediator, lawyer, and peacemaker who is called the “father of unbundling,” referring to the process of offering legal clients discrete services as distinct from a complete bundled representation, as lawyers traditionally provide. He also is a prominent collaborative lawyer.
Woody is a good friend and we co-authored several articles about collaborative practice. He is simultaneously extremely idealistic and extremely pragmatic as is obvious when reading his books and other publications.
You may not know Adam B. Cordover, a relatively new collaborative lawyer in Tampa, Florida. Together, Woody and Adam edited a new book published by the ABA Family Law Section, Building a Successful Collaborative Family Law Practice, which will be released soon. This follows Woody’s 2009 book, Collaborative Divorce Handbook: Helping Families Without Going to Court.
As you may know, collaborative practice involves a “participation agreement” by parties to negotiate without engaging in contested litigation. The parties agree to provide all relevant information and practitioners try to use interest-based negotiation. If any party decides to litigate the matter, all the lawyers must withdraw from the case and are disqualified from representing the parties in litigation. The vast majority of collaborative cases are in family law matters. In 2009, the Uniform Law Commission adopted the Uniform Collaborative Law Act (UCLA), which has been enacted by 17 states and the District of Columbia. In 2011, I published An Empirical Analysis of Collaborative Practice, summarizing the empirical research that had been published to date.
Woody and Adam’s new book is intended for people who are doing collaborative practice or want to do so. It includes 22 chapters written by experienced collaborative practitioners about the nuts and bolts of doing collaborative practice and making a living at it.
The chapters deal with becoming a collaborative practitioner, techniques for collaborative practice, working with a range of other professionals as part of a collaborative team, use in marriage planning and civil cases, and business aspects of running a collaborative practice. The concise chapters are easy to read and include practical tips.
I was particularly pleased to see a chapter by Michael V. Fancher on avoiding and handling termination of collaborative cases. When the collaborative movement really started taking off in the 2000s, many collaborative practitioners were understandably enthusiastic about this exciting new form of practice. In their enthusiasm, it was hard for some to believe that it could be problematic. While most cases worked out well, the collaborative structure itself created risks that parties could abuse the process to take advantage of the other side (especially in cases involving domestic abuse) and that parties could feel trapped in an expensive process that they couldn’t get out of. Over time, the field matured, recognized the risks, and developed processes to anticipate, avoid, and deal with them. The UCLA requires that, before undertaking a collaborative representation, lawyers must assess the appropriateness of collaborative practice and obtain clients’ informed consent. Mr. Fancher’s chapter provides excellent advice about this.
If you want to learn the latest thinking about how to be a successful collaborative practitioner, Woody and Adam’s book is a great place to start.