Cooperating with Cooperative Attorneys

by Ron Ousky November 03, 2012


I have been struggling with the right way to relate to Cooperative Attorneys in our community.   For those of you that are not familiar with Cooperative Law, it can be most easily described as Collaborative Law without the Withdrawal Agreement. I know that may seem like an oxymoron since Collaborative Practice has, as its one defining principle, the Withdrawal Agreement or, as I prefer to call it, the Collaborative Commitment.  So for me, describing Collaborative Practice without the Collaborative Commitment seems a bit like trying to describe swimming without the water.

When the idea of Cooperative Law appeared a few years ago, it was fairly easy to dismiss it as just another flash in the pan or a marketing scheme for people who attorneys who want to be settlement oriented without any real commitment to doing anything different. But Cooperative Law seems to keep popping up in our community, so I think it is best for us Collaborative Practitioners to find a respectful and professional manner of addressing it.

This is a thorny problem.  On the one hand, I truly want to support any idea that has the potential to truly help families in these difficult situations and I know several good attorneys who are excited about Cooperative Practice. Also, to the extent that Cooperative Professionals emulate many elements of Collaborative Practice, (i.e. Participation Agreements, informal discovery, teaming, joint meetings, interest based bargaining, etc.)  it is easy to support the spread of these important features. 

On the other hand, because Collaborative Practice has demonstrated that commitment achieves better outcomes,  a process that includes similar features but omits the real commitment may confuse the public and professionals.  It is always tempting to believe we can achieve something meaningful without any firm commitment.   Moreover, I struggle a bit with Cooperative Law a “process” because most practitioners do not seem to firmly commit to any defining idea.

In general, I believe that our community is best served when we reach out to other professionals with an open mind and genuine curiosity.  So I intend to reach out to the truly sincere Cooperative professionals in our community. My only request of my non Collaborative Law colleagues has been that they try to truly understand what it is we do and that they attempt to describe it to clients in a truly professional manner.  I guess it stands to reason that we should extend that same commitment to them.   Let me know what you think.  

Comments (2) -
htindall@tindallengland.comUnited States
2/9/2013 5:04:57 PM #

I have some experience with cooperative law cases. There are clients who have declined the collaborative approach because of a desire to keep me as their lawyer. There are lawyers who also object to the disqualification requirement, but are excellent interest-based negotiators. My thought has been to accept these cases for reason you stated so well. I use a written agreement about joint meetings, full disclosure and neutral experts. I have also added provisions for mediation and arbitration. While I prefer collaborative cases, I do respect the client's choice. My experience has been good. Our Houston appellate court has sanctioned the cooperative law.  

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4/9/2013 2:50:18 PM #

I guess that my practice is sacrilege to collaborative practitioners in the US. I essentially only work as a mediator, neutral lawyer or collaborative practitioner. Since there are so few collaborative  lawyers who really "get it" (in my view) I might never have used my collaborative training beyond a few cases unless I'd worked co-operatively (small c). But I have always made it a contractual term with my client that I would not represent them in litigation. The other lawyer and their client understands this. I have not had any case which has failed to reach an outcome in 6 or 7 years, and have had many successes involving alcoholism, domestic abuse on a criminal scale, and massive power imbalances. All were interdisciplinary, and all used principled negotiation - but not all featured a PA. What does this mean?

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