Reshaping the practice of Justice: the Case of Collaborative Law

G. Maria Antonietta Foddai

Professore associato di Filosofia del diritto, Università degli Studi di Sassari

Reshaping the practice of Justice: the Case of Collaborative Law

SOMMARIO: - 1. Toward a Paradigm of Participatory Justice. - 2. Collaborative Law. - 3. The Origins of Collaborative Law. - 4. The Canadian Experience of Collaborative Family Law and the ‘limits’ of Mediation. - 5. Collaborative law in Europe: the French Case; - 5.1. Lawyer-Assisted Negotiation in Italy. - 6. How Lawyers are reshaping the Practice of Justice. - 7. In Search of a New Professional Identity: concluding observations.

 

1. Toward a Paradigm of Participatory Justice

In their analyses, European legal scholars often refer to a “legal crisis” to underscore how the law has difficulty representing and regulating new phenomena that are radically changing the international scene[1]. One might say this crisis is paradoxical because it appears that the legal field is growing and that there is a new spectrum of actors and institutions that are redefining its content, practice and confines[2]. What appears to be in crisis, however, is a certain way of viewing the law as a rational order centered around the State and legislation as the only source of law.

The crisis affects also justice understood as a tool for the effective vindication of rights. It has eclipsed the traditional trial as it has become inadequate in fulfilling social expectations[3]. It has also driven a new sense of vitality into the system as consensual and participatory models have brought new principles, practices and actors onto the justice scene over the past thirty years[4].

We are before the progressive crumbling of a justice paradigm based on the State’s monopoly on the law and on judgment. The emerging new one has yet to be fully defined, but is nonetheless beginning to take shape with distinctive features such as belief in legal pluralism and participatory dispute resolution tools[5].

The ways in which different legal systems have responded to the rise of alternative dispute resolution methods (ADR) sheds light onto the different countries’ interpretation of the relationship between two different paradigms of justice and on the strategies they have employed to redefine their delivery of justice in response to the changing needs of their citizens.

The recent example of collaborative law, which renders the ethical principles of participation and cooperation in dispute resolution legally relevant, is quite telling. On one hand, it reflects the need for autonomy and participation which pervades contemporary society: on the other, it reveals how difficult it is for institutions to develop new justice policies which grant citizens decisional autonomy and ensure effective safeguarding of rights[6].

This article illustrates the new phenomenon of collaborative law; its origins in the United States and Canada and the translation of its principles in Europe. The specific cases of France and Italy, which have both recently introduced forms of negotiation inspired by collaborative law principles, are discussed. These two cases are particularly interesting, not only because these nations have a civil law system dominated by a model wherein the decision, and not a negotiated agreement, takes center stage, but also because of the way they have integrated this new tool within their procedural systems and of the new role played by lawyers in the justice scene.

The Italian example provides food for thought. In Italy, there is a gap between the representation of a model of justice still founded on the trial and the practice of a brand of justice increasingly drawn to extra-judicial tools[7]. Over the past twenty years, legislators have introduced consensual tools such as mediation and negotiation in an effort to lift some of the burden from the courts. The formalization of these tools, the failure to appropriately train mediators and attorneys, and insufficient awareness-raising with the public are among the causes of the thus far poor success of consensual justice methods. They have been depicted as exceptions in the judicial system that only serve to reinforce the dominant model instead of bringing about a new conceptual framework in which to resolve disputes and protect rights.

This lack of success is perhaps at the origin of a March 2016 Ministry of Justice initiative: the establishment of a Commission tasked with proposing an organic reform of dejurisdictionalization tools, with particular attention to mediation, assisted negotiation and arbitration. The Commission, which has recently concluded its activities, preserves the initial normative structure and proposes several changes designed to expand access to extra-judicial tools[8]. What is noteworthy, however, is that for the very first time Italian lawmakers have addressed the issue of harmonizing the traditional judicial model with consensual and participatory forms of justice. In the open building yard of the Italian justice scene[9], this may represent a first real step towards the definition of a new paradigm of participatory justice.

2. Collaborative Law

Collaborative law has recently joined the list of extra judicial conflict resolution tools based on a consensual and participatory approach[10].

The term “collaborative law” refers to a consensual dispute resolution method in which the involved parties, assisted by their attorneys, are active in seeking a solution to their conflict. This practice, which is part of the informal justice sphere, excludes the presence of an impartial third party who facilitates an agreement - an element that has come to characterize models of alternative justice such as mediation and conciliation and is part of the commonly recognized image of alternative justice.

The novelty of this approach with respect to other extra judicial tools is that it breaks away from the assumption there must be three actors.

Although it resonates with negotiation, which unfolds through a discussion led by the involved parties’ attorneys, collaborative law differs insofar that it combines the binary structure of negotiation with a formal ethical commitment to forego procedural strategy in favor of honest dialogue aimed at reaching a consensual resolution to the dispute at hand.

A distinguishing trait of this practice, born in the context of family law[11], is the drafting of a preliminary agreement known as “participation agreement”, in which the parties and their lawyers commit to resolving the controversy at hand in a collaborative manner, sharing relevant information, respecting confidentiality and behaving in an honest, fair manner during negotiation[12].

The participation agreement contains an exclusion clause which provides that, in case of failure of the consensual process, the lawyers cannot represent their clients in a court of law for the same dispute and must withdraw if the case is not settled[13]. This distinguishes collaborative law from all other consensual controversy resolution methods commonly employed in the field.

Macfarlane argues that with collaborative law one moves from tasking a single attorney with working on extra-judicial solutions to asking all lawyers involved in a given case to commit to exclusively using consensual modes of conflict resolution[14]. In fact, the agreement must be signed by the involved parties as well as by their attorneys, who commit to forego formal legal action to resolve the dispute. In collaborative law – continues Macfarlane – a lawyer has the sole task of advising his/her client and illustrating extra-judicial, consensual and negotiation-based solutions[15].

As Peppet stated, there is no single contractual arrangement that represents collaborative law, but there are different types of collaborative documents that could “create several possible contractual configurations depending on what, exactly, the lawyers and clients sign and what, exactly, those documents say.”[16].

According to the literature, some of the most salient founding elements of a collaborative law agreement include:

- Lawyers are forbidden to represent their client in litigation after a failed negotiation attempt. This safeguards the negotiation-based approach from the risk of the parties pursuing legal action against each other in order to force a conclusion. If the parties are to face each other in a court of law for the same dispute, new lawyers must represent them[17].

- The voluntary, timely and thorough sharing of all information deemed relevant for pursuing conflict resolution[18].

- The active participation of all parties involved in the dispute. Although the lawyers play a fundamental role in the negotiation phase, the ultimate decision is left up to the parties, which must be actively committed to quickly finding a resolution to their dispute[19].

- An ethical commitment to acting on good faith and with honesty. This does not mean that the discussion cannot be heated or intense confrontation in which all options are considered; it does however, require an atmosphere of frankness, openness, and mutual trust wherein a cooperative approach replaces procedural strategizing[20].

3. The Origins of Collaborative Law

The history of collaborative law is quite recent and dates back to the early 1990s when Stuart Webb, a family attorney from Minneapolis, began to devise a new approach based on collaboration rather than competition between the conflicting parties. His method, which eventually turned into a legal model, involved a series of meetings between the parties and their attorneys aimed at reaching an agreement without going before a judge[21]. The first problem Webb considered was the danger of parties falling back into strategic solutions if negotiation failed. His solution was establishing that the lawyers could not go from being collaborative to competitive and would thus need to relinquish their clients should they choose to move their dispute into a traditional court of law.

As he discussed the clear distinction between trial lawyers and expert negotiator-lawyers, Webb argued that this division gives rise to a series of advantages with regard to the methods and end result of the process they facilitate[22]. Without the alternative of a trial, lawyers concentrate exclusively upon the negotiation phase and on a single goal: reaching a satisfactory agreement as opposed to garnering a victory in court. This entails the utilization of different skills and methods that not all attorneys necessarily possess, such as the ability to analyze a case from multiple perspectives and various problem-solving techniques, all applied in the relaxed atmosphere of planned meetings between all involved parties[23].

The new stance has given rise to a series of ethical and legal questions regarding the role of attorneys and adequate defense of the parties’ interests[24] and stimulated a debate that served to further define and strengthen the specificity of the approach[25].

With the support of the Texas Collaborative Law Institute of Texas, one of the most active organizations in the promotion of collaborative law, the Texas Collaborative Law Council was established in 2004[26]. Its aim was to apply the collaborative process to commercial and civil disputes, train lawyers in the practice, inform the public about its benefits, and preserve its integrity[27].To this end, a protocol was established for lawyers committing to a collaborative process as well as a draft of the preliminary participation agreement[28].

The essential elements of the process are the identification of the aims and interests of the parties, a full and thorough sharing of relevant information, effective communication, reinforcing both parties’ capacity to make fair decisions, upholding confidentiality, and maintaining good faith in negotiation.

As the practice became more popular and valued by professionals in the field, there was a push to regulate Collaborative Law. The rise in lawyers’ organizations specializing in collaborative law has led to the legal changes that introduced collaborative law models in the legal system of Texas, North Carolina and California[29].

 4.The Canadian Experience of Collaborative Family Law and the ‘limits’ of mediation

In Canada, collaborative law practices grew in popularity around the late 1990s and gradually became a veritable new judicial trend[30]. The novel approach drew enough attention in the legal world that in 2005 the Canadian Ministry of Justice published a study of collaborative justice cases in the United States and Canada between 2001 and 2004.

The paper, titled “The Emerging Phenomenon of Collaborative Family Law: A Qualitative Study of CFL Cases”, examined the chief ethical, practical and conceptual questions raised by CL and analyzed the notable changes that it engendered in professional practice as well as in the client-attorney relationship[31]. The author recognized that the traditional trial as a tool for resolving family conflict was in crisis and evidenced the limited number of families who sought legal counsel during disputes[32].

Based on a series of interviews conducted in Canada and the United States, Macfarlane highlighted the exponential rise of collaborative family law as one of the most salient innovations in the field in the previous 25 years. Although its distinguishing feature is the limitations imposed upon the attorney’s role in the form of required commitment to seeking only negotiation-based and extra-judicial solutions, the new practice was embraced enthusiastically by professionals in the field, who began championing it as an efficient, swift method associated with high rates of client satisfaction[33].

McFarlane’s paper also outlined the different expectations and motives steering legal professionals and their clients towards collaborative law practices. The former tend to believe that collaborative law allows for legal practice that is more in line with their personal values compared to the traditional model focused on trial proceedings and strategic negotiation. Not only did the attorneys tend to reject a competitive approach as inadequate in handling family disputes, they also expressed dissatisfaction with family mediation when compared to collaborative practices, which were favored by the majority of the interviewees.

Collaborative law therefore seemed to emerge as a third channel for dispute resolution- an alternative to both litigation and mediation. A series of factors related to professional identity and roles were behind the positive response most North American and European attorneys had to the new model[34]. The study evidenced that clients seek their attorneys’ advice in choosing an appropriate family conflict resolution tool and they steered away from the traditional trial. They also expressed some reservations about mediation specifically because in this practice lawyers have a more marginal consulting role while in collaborative practice they play an active, decisive role in defending the client’s interests. Their positive expectations focused on reduced costs, a swifter process, and a more constructive channel for resolving a family crisis with benefits including personal growth and greater protection of children involved[35]. The report also pointed out some limitations of the new model. If on one hand collaborative law appears to provide an avenue for reaching lasting agreements that are both fair and satisfactory, on the other it presents several problems with regard to lawyer training, costs, and the fact that in case of failure of negotiation the overall length of the dispute process may double as it moves to a traditional trial.

One of the most interesting points in the report concerns the relationship between collaborative law and mediation, which, in spite both having developed in a collaborative framework, often appear to be at odds. This issue has been confirmed by several studies conducted in across the now vast landscape of ADR in many countries. As Hoffman argues: “in the world of dispute resolution, we are sadly coming into an era in which an alarming divisiveness has emerged. [...] Some divorce mediators dismiss Collaborative practice as an “oxymoron” and too expensive. Some Collaborative practitioners dismiss mediation as a “lesser” process and too expensive. Some Collaborative practitioners argue that only in Collaborative practice and not in mediation – is it possible to get to the “deeper places”, beyond mere settlement, wherein the disputing parties can achieve the greatest understanding and resolution”[36].

In Hoffman’s vision, as well as in Macfarlane’s, one of the first sources of tension among the ‘alternative practitioners’ is an economic one, as evidenced by a clear division between lawyers and mediators. This is made even clearer by the fact that collaborative lawyers who do not practice mediation are its main critics and, conversely, mediators who do not utilize collaborative practices tend to criticize them. This phenomenon does not seem to occur when lawyers offer both mediation and collaborative practice services to their clients as well as arbitration and other conflict resolution tools.  

In this changing landscape of justice where new professional competencies are developing and a new social equilibrium is being delineated, lawyers clearly play an increasingly key role as dispute resolvers. This trend is confirmed by an analysis of the French and Italian examples.

5. Collaborative law in Europe: The French Case

 The collaborative law phenomenon has reached Europe, as evidenced by the establishment of various relevant professional associations in multiple countries and by the 2015 birth of the European Network for Collaborative Practice[37].

In France, in addition to the birth of collaborative law associations, changes have taken place at the institutional level with the introduction of the North American-inspired “Convention de procédure participative”. The Loi Beteille n. 2010-1609 of Dec. 22^nd, 2010, which came into effect on January 23^nd 2012, adds a new title XVII to the third book of the civil code at art. 37 specifically addressing the “Convention de procédure participative” regulated by articles 2062-2068. Art. 2062 refers to the convention on participatory justice thus: “la convention de procédure participative est une convention par laquelle les parties à un différend qui n’a pas encore donné lieu à la saisine d’un juge ou d’un arbitre s’engagent à oeuvrer conjointement et de bonne foi à la résolution amiable de leur différend”^[38].

The new legal instrument, which turns out to be particularly well-suited for family disputes[39], is also applicable to any controversy involving available rights.

Its main tenets include mandatory assistance by lawyers and the opportunity to equate whole or partial agreements reached through collaborative practice with judicial decisions (art. 2066)[40].

Unlike in Italian law, wherein an attempt at extra-judicial conciliation is mandatory prior to a hearing before a judge, in France utilizing this method is wholly voluntary. The parties, in fact, can freely choose whether to pursue collaborative or judicial avenues after consulting with their attorneys and considering their options.

It is particularly noteworthy that the “participatory” practice taken into consideration by French lawmakers differs from its American and Canadian counterparts in that it allows the same lawyer who assists a client during a collaborative process to represent him/her in court if they do not reach an agreement. In this case, the stark distinction between a collaborative/negotiation-based approach and a competitive/judicial one- a defining characteristic of Collaborative Law- is missing.

As noted by many French scholars, there is a fundamental difference between “Droit Collaboratif” and “Convention de procédure participative”. “On dit que la procédure participative française est parente du droit collaboratif nord-américain. C’est une mystification. Dans le droit collaboratif, les avocats sont tenus de se désengager de la procédure dès lors que l’une des parties rompt le pacte en saisissant le juge, mais également s’ils ont le moindre doute quant à la volonté réelle de leur client ou de l’autre partie d’avancer efficacement dans la négociation. Mieux encore, la signature de la charte leur interdit, en cas d’échec de la procédure, de représenter ultérieurement l’une quelconque des parties dans le cadre d’une procédure contentieuse. Enfin, il est convenu que les éléments d’information échangés au cours de la procédure collaborative ne peuvent être utilisés dans une éventuelle procédure contentieuse ultérieure. Aucun de ces éléments essentiels n’est repris dans la procédure participative qui est plutôt un moyen de mettre en état le règlement d’un différend dans le but de le régler à l’amiable ou sinon de faciliter un règlement juridictionnel rapide.”[41].

The political logic behind this decision by French lawmakers emerges from the 2008 Guinchard Commission[42], which encouraged the development of alternative dispute resolution methods and proposed the use of a “participatory, attorney-assisted negotiation process”[43]. In addition to outlining the chief tenets of collaborative law, the report focuses specifically on the exclusion clause in the preliminary agreement undersigned by the parties and the attorneys. While this acts as a catalyst for participants to commit to swift and efficient action geared towards conflict resolution, it is also its weakness: a failure in negotiation inevitably leads to further time and money expenditure in litigation[44].

According to the Commission, imposing such a constraint on the attorney’s role is paramount to a limit in access to justice. For this reason, the Report explicitly refers to collaborative law as inspiration for a new model, but it also levels significant criticism against it: “Le droit collaboratif constitue une forme de recherche transactionnelle contractualisée, faisant intervenir, en sus des parties, leurs avocats. À cet égard, il apparaît particulièrement intéressant de s’en inspirer, pour inciter les parties à la résolution négociée de leur différend, tout en préservant davantage leur accès effectif à la justice. Tel est l’objet de la proposition de la commission tendant à créer en France une procédure participative de négociation assistée par avocat”[45].

In addition to this policy argument, less noble criticism has been leveled against collaborative law by legal professionals, who feel that the current norms create an undue advantage for lawyers. By prescribing the obligatory assistance of lawyers in the participatory process, the Loi Beteille effectively excludes other professionals, such as notaries, who might otherwise been qualified to act as expert negotiators[46].Perhaps this underlying ambiguous factor explains the very limited success the process has had in France so far. The report on access to justice within family disputes prepared by the Senators Tasca and Mercier refers to Ministry data indicating that in 2013 only 7 agreements resulting from a completed participatory process were judicially ratified. Tasca and Mercier argue that the excessive cost associated with the process may also discourage French citizens from undertaking this new venture[47].

The Convention de procédure participative’s lack of success should not overshadow the impressive effort put forth by French lawmakers attempting to reform their civil justice system. Law 2016-1547 of November 18th, 2016, aptly titled “la Justice du XXI siècle” is particularly interesting. This law, which has been called “ambitious” because of its breadth, changes various aspects of civil justice. The objective outlined in title II of the law “Favoriser les modes alternatifs de règlements des différends”, which is the final step of a larger process encompassing the introduction of participatory justice that began decades ago, is of particular interest here. The eight articles that make up title II of this law include all alternative conflict resolution tools, including arbitration, participatory processes and mediation. Lawmakers focused particularly on the latter and established a new professional figure: administrative justice mediator. As highlighted by Clay, the justice model fostered by this law is not the trial, but rather avoidance of the trial[48].In fact, art. 4 established a mandatory form of conciliation for claims involving less than 4000 Euros, introducing a precondition that prevents recourse before a judge. The same measure is taken for family mediation, which is nevertheless due to be further studied until December 2019 in selected courts. Participatory procedure is modified by art. 9 of the law, which states that this measure can be sought even when a trial has begun, and not just before its start. As stated by Clay “Cela modifie la perspective car la procédure participative n’est plus conçue comme une procédure préalable, mais comme une vraie « autre » procédure, une procédure « alternative »”[49].

5.1. Lawyer-Assisted Negotiation in Italy

Over the past few years, collaborative law practices have made their way to Italy, especially in the family law sphere. The renewed attention on consensual approaches heralded the establishment of the Istituto italiano di diritto collaborativo in 2010 by a group of lawyers trained in the American Collaborative Law model, followed by the Associazione Italiana dei professionisti collaborativi in 2014^[50].

As the collaborative approach became increasingly popular in legal practice, Italian lawmakers introduced “Assisted negotiation by a lawyer” (clearly inspired by the French model) in an attempt to streamline dispute resolution and respond to pressing demands by lawyers.

The new legal instrument is regulated by law decree n. 132 of September 12^th, 2014 (converted into law n. 162/2014 in effect as of February 9^th, 2015) calling for “Urgent dejurisdictionalization measures and other interventions for the definition of standing issues in the civil legal process”, geared towards funneling a significant number of civil controversies into alternative resolution procedures. The legislator’s choice of the term “dejurisdictionalization” has been criticized because it implies the weakening of the judicial protection of rights[51]. However, this awkward neologism[52], according to Luiso, could be interpreted in two different ways. In the first, ‘dejurisdictionalizing’ means unburdening judges of certain tasks whilst preserving their decision-making function, which involves resolving disputes using rules that govern the future conduct of the parties. In as second interpretation, however, the term has a positive significance in that it indicates that there are extra-judicial tools capable of producing the same results obtained by the court system. This clearly includes assisted negotiation[53].

Assisted negotiation therefore takes its rightful place among Alternative Dispute Resolution instruments, which Italian lawmakers look to with high expectations but scarce attention^[54]. While in some respects the Italian version of negotiation is reminiscent of collaborative law, in other ways it steers away from its nature; just like its French counterpart, it appears to be a hybrid institution that cannot come to the rescue of our country’s languishing justice system[55].

The process depends on the establishment of a preliminary agreement defined as “an agreement through which the parties commit to cooperate in good faith and with honesty in order to resolve a dispute in an amicable manner with the assistance of their lawyers” (art. 2)[56]. Just like France, Italy also failed to uphold the founding principle of collaborative law, instead preferring to adopt a form of negotiation that draws inspiration from collaborative values whilst guaranteeing legal representation during both the negotiation and judicial phases (if applicable) and allowing lawyers to oversee the entire dispute resolution process.

Art. 2 refers to values that underpin the collaborative approach, such as honesty and good faith informing a cooperative attitude of all parties involved. Art. 9 establishes the importance of confidentiality, regulating it similarly to civil and commercial mediation^[57]. However, these guidelines appear to be much blander, compared to the ethical paradigm driving the North American model, which insists that these principles exist as an obligatory prerequisite for the collaborative process to move forward^[58].

Compared to the French version, the Italian institution of negotiation has the added element of a condition of entertainability for all disputes concerning compensation for damages resulting from circulating vehicles and boats as well credit collection up to 50,000 Euros (art.3)^[59]. In this respect, the discipline of mandatory assisted negotiation is the same as that concerning mandatory mediation[60].

In addition to the mandatory model, the law provides a voluntary one (art. 2) concerning claims to available rights and an indication regarding “consensual resolution of separation, termination of civil effects or dissolution of marriage, changes in the terms of a separation or divorce agreement” (art. 6). The latter provision regarding family disputes is an important innovation for Italian citizens insofar that it introduces a viable alternative to the previously unavoidable judicial trial and entrusts lawyers with a primary role^[61]. In fact, attorneys are called to guarantee the legality of the acts, effectively not only shouldering their traditional duty to represent the client, but also taking on responsibilities formerly reserved to judges, such as ensuring the legal validity of concluding agreements, which have the same legal weight as corresponding judicial decisions^[62]. As established by art. 5 of the decree, the concluding agreement of a negotiation process is considered an executive enforcement order and can grant entitlement for the registration of a judgment lien. In the case of negotiation concerning a family dispute, the final agreement must be examined by the State’s Attorney in order to confirm its validity and to ensure that the best interest of minors, or legally incompetent persons, or economically dependent children, has been safeguarded.

While experts have been critical of other assisted negotiation hypotheses (from art. 2 on), calling them an unnecessary addition to the judicial system redundant with mediation, Art. 6 (which allows couples to finalize divorce without going to court) has been met with widespread approval, though some have argued this diversion will only marginally unburden the courts[63]. This new approach has been hailed as a means for citizens to exercise their right to undo marriage ties in a swifter, less formal way[64], but it has also met with a degree of suspicion because of the autonomy it enjoys in dealing with issues involving minors - which have traditionally been handled by judges alone. According to Dalfino, lawmakers should have excluded issues concerning children or requiring a judge’s ratification, because the State Attorney’s final approval appears to be insufficient protection of the minors’ rights^[65].

While mediation is overseen and managed by the Ministry of Justice, which regulates sites licensed to provide mediation services, negotiation entrusts legal professionals with the entire responsibility for the practice, its monitoring, and data gathering. In fact, lawyers are the true and only protagonists in the new system: not only do they undersign the agreement, notarize the parties’ signatures and vouch for the agreement’s conformity with the law and public order, but they also forward a copy to the competent local legal Bar Association. In fact, it is the National Bar that forwards case documentation to the Ministry. Except for specific instances, the cases never go through judicial offices: an entire proceeding is opened and closed outside of the courtroom and before individuals who are not judges.

After this brief analysis of the subject, a question arises: what can be left of this collaborative approach and how can the ethics of honesty, communication and non-strategic action that ought to favor consensual solutions survive and thrive in this bureaucracy and formality laden “alternative justice” system? In addition to traditional education, newly formed lawyers ought to be trained in negotiation and collaborative law; these methods and principles are not routinely taught in university programs^[66]. The law does not currently set down any specific accreditation system for the practice of this delicate procedure. This seems like a clear and urgent priority when it comes to family law, “wherein a lawyer is not simply the client’s attorney but is in fact responsible for favoring conciliation between the spouses and ensuring that the resulting negotiated agreement is valid, in line with the law, and in the best interest of minors, legally incompetent persons or economically dependent children”^[67].

6. How Lawyers are Reshaping the Practice of Justice

As illustrated by our discussion, collaborative law announces a new protagonist in the alternative justice scene: the lawyer.  

Over the last thirty years, the legal profession has undergone significant transformation in order to ad apt to changes in the system and in social demands^[68]. Lawyers have developed new professional competence and there has been a progressive shift towards problem resolution through dialogue with one’s client in a collaborative, negotiation based manner. This requires us to redefine some of the key ethical principles in the legal profession^[69]. The need has arisen for lawyers to question the traditional ethical stance based on a “Sporting theory” of justice^[70]. Professional training must also adapt to a new consensual model, which includes “pre” and extra-judicial practices and cultivates respect for the decisional autonomy of the parties as well as attention to the client’s best interest.

This change is closely linked with the crisis of the trial and the rise in popularity of new legal practices in which lawyers play a key role as facilitators of justice. In his famous essay “The Vanishing Trial”, Galanter pointed out that alternative dispute resolution practices such as mediation and negotiation have begun to eclipse the leading role of the trial in the United States. According to Galanter, the drastic reduction in the number of cases resolved by trial is due to both a shift towards alternative resolution systems and a change in ideology experienced by many lawyers, judges and disputing parties^[71].

The transformation underway implies a crisis in some of the root beliefs that have characterized the legal profession in contemporary times, such as that the lawyer’s chief goal is his/her client’s victory, that the emotional context of a dispute does not affect its management, and that the client should speak as little as possible, leaving the lawyer to intervene, lest the agreed upon strategy be compromised. These are some of the distinguishing features of the dominant model of our judicial culture aptly described by Pound in 1906 by comparing two lawyers facing off in a courtroom to football players competing on a field^[72].

After all, in European and particularly Italian university classrooms, students are still taught that the trial is the chief method used to resolve disputes and that the legal profession and its ethical tenets must develop within and not outside of the courtroom^[73]. New graduates are disappointed and sometimes shocked when they realize that disputes as they studied them in legal manuals have little to do with the real world of conflict in which lawyers must grapple with the changing demands of their clients.

As argued by Macfarlane, “The traditional conception of the lawyer as “rights warrior” no longer satisfies client expectations, which center on value for money and practical problem solving rather than on expensive legal arguments and arcane procedures”^[74]. The lawyer of the future will have to be a skilled communicator, a creative and persuasive negotiator, a problem solver who understands teamwork and is an excellent listener with his/her client. This does not mean that the warrior lawyer model will disappear, but it is inevitable that just as conflict and conflict resolution take many forms, so the legal profession must broaden to appropriately respond to the people’s needs^[75].

7. In Search of a New Professional Identity: Concluding Observations

 As discussed, the rise of new collaborative practices is largely owed to the initiative of lawyers who responded to signs of change in traditional legal practice and growing public dissatisfaction with the justice system^[76].

Even more than other extra judicial resolution practices, collaborative law highlights the change, the role of lawyer is undergoing, as a promoter of justice. It stands as an alternative to both traditional negotiation and to mediation. While negotiation has always been widely used in the legal profession, it is the ethics of collaboration that truly characterizes this new practice based on principles of dialogue, honesty, confidentiality. It shifts away from the traditional view of the lawyer’s role as competitive.

It is even more interesting to note that the majority of collaborative lawyers are also moving away from mediation. Although the latter’s principles are the same as collaborative law’s, the different role played by the lawyer in safeguarding the client’s interests makes mediation less appealing for attorneys. Stuart Webb, who invented Collaborative Law, interestingly wrote: “One of the aspects of mediation that I feel is a weakness is that it basically leaves out input by the lawyer at the early stages (sometimes that’s an advantage!). By that I don’t mean adversarial, contentious lawyering, but the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement.”^[77].

In Italy, many authors share in Webb’s viewpoint. A recent reform in the legal profession in 2012 and the subsequent change in the legal ethics code underscore the shifting social function of the lawyer as facilitator of justice instead of a mere participant in its formally correct administration^[78]. Many lawyers believe that mediation, as it is currently structured, does not offer clients the same security and protection that adequate legal counsel can afford from the very start of the process. In most models, lawyers enter the scene when mediation has already taken place and the main points of the agreement have been drawn up with the mediator’s assistance. In this view, however, the resolution of conflict is separated from its legal settlement.

 What lawyers want is to have their competence recognized with regard to managing conflict in all its dynamics alongside the client, if need be with the aid of other specialized professionals such as psychologists. While this argument can be valid for certain mediation models practiced in the USA and Canada, it is not really applicable to the Italian model of mediation introduced by lawmakers with decree n. 28 of 2010 and later amended in 2013[79]. Indeed, the reformed Italian law (art. 8 sect.1) orders mandatory assistance by attorneys in mandatory mediation: so they assist their clients since the beginning of the mediation process and they can participate both in conflict management and agreement formulations. It is however noteworthy that the same law recognizes lawyers as “mediators”, reduces the number of required training hours, and allows bar associations to establish mediation centers with a simplified procedure[80].    

According to some scholars, this critical attitude towards mediation shared by most North American and European lawyers conceals a power struggle within the new market of extra judicial conflict resolution tools that is redefining the legal field and professional identities within it^[81]. It therefore appears that Collaborative Law is a new alternative to both the trial and its competition-driven professional distortions, and to mediation, which spotlights the mediator and relegates the lawyer to a marginal role in the conflict resolution process. In spite of lawmaker’s special attention to the national Bar association’s pressure leading to regulation of mediation legislation, the practice is viewed with suspicion by most Italian lawyers, especially because of its reliance on that “tiers istruit” ^[82]who is an unwelcome guest in the exclusive club of Italian law.

It is thus the central role given to lawyers, the true protagonists, which determines the success of collaborative law and the positively warm reception it has encountered throughout Europe[83].

In Italy, the legal motion that led to the regulation of assisted negotiation was championed by a group of lawyers’ associations and regional bar associations^[84].In spite of this, the same lawyers who passionately supported this initiative harshly criticized assisted negotiation. They called out against its excessive formalism[85], as evidenced by the numerous cases of nullity due to failure to meet exacting procedural or timing rules; they pointed out the insufficient training received by lawyers, who did not learn specific “collaborative” negotiation skills; they lamented the instrument’s auxiliary function with respect to the trial (a criticism also leveled by legal theorists), as illustrated by its expressly stated purpose of unburdening the courts^[86].

As had previously occurred with mediation, whose interesting history sets the background for these observations,^[87] Italian lawmakers treated assisted negotiation like the latest addition to the justice landscape instead of analyzing the causes of the system’s crisis and considering which principles ought to drive its new direction. The chosen purpose of assisted negotiation, in fact, appears to be that of making access to the trial difficult through useless formalism and inflated costs instead of facilitating access to justice - one of the European Union’s long-standing political priorities^[88].

In this light, it is significant that in March 2016 the Ministry of Justice established a Commission, chaired by Professor Guido Alpa,^[89] tasked with devising an organic reform of extra-judicial tools, with particular attention to mediation, assisted negotiation and arbitration. The ensuing report, deposited on January 18th, 2017, clearly illustrates the delineated functions of ADR within our legal system: fostering access to justice, resolving small claims with alternative tools and unburdening the mainstream justice system in order to make it more efficient. The Commission also mentions an additional function- namely bringing together disputing parties, bettering relationships and decisional autonomy- but expressly excludes it from its formal objectives. As the report reads: “in Italy, ADR has been largely conceptualized as either a tool to prevent disputes by resolving them legally or as a pre-trial effort that ends up being the start of a process that eventually leads to the traditional courtroom”^[90].

The Commission’s work, which took into consideration to complexity of the Italian and European legal scene, also includes several modest suggestions aimed at encouraging the use of arbitration, judge-delegated mediation and, in the case of assisted negotiation, the opportunity of being assisted by the same lawyer[91]. The latter proposal, which had previously been rejected, was justified with an economic rationale.

While assessing the effects of the Commission’s work on the legal landscape may be premature, we can conclude with two brief observations on the report. The first is that it does not concern itself with a political justice project that seriously considers the principles of consent and participation championed by ADR as both efficient and just dispute resolution tools. The crisis in our justice system is implicitly treated as an endemic disease caused by organizational inefficiency gripping our nation instead of the symptom of an inadequate paradigm that needs to be revised at its core. The second observation is that for the first time Italian lawmakers explicitly delved into the issue of harmonizing the judicial model with consensual forms of dispute resolution. This can perhaps be considered the first step in the development of a new political view of justice in Italy.

*Il contributo è stato sottoposto a double blind peer review

[1] Among numerous publications on this subject, see T. Hagan, The End of Law? Oxford, 1984; B. De Sousa Santos, Law: a Map of Misreading. Towards a Postmodern Conception of Law, in Journal of Law and Society 14, 3 (Autumn 1987), p. 279 e ss.; in Italian literature, see N. Irti, Nichilismo giuridico, Bari-Roma 2005, third ed.; P. Rossi (ed.), Fine del diritto?,Bologna 2009; M. Vogliotti (ed.), Il tramonto della modernità giuridica, Torino 2008.

[2] See. S. Cassese, who notes that in Italy over the past fifty years, the number of judicial decisions has increased tenfold, the number of lawyers fivefold, and new law school graduates threefold. The conclusion is that the production and delivery of law is increasing. Eclissi o rinascita del diritto?, in P. Rossi (ed.), Fine del diritto?, cit., p. 29 e ss., (p. 29).

[3] See M. Cappelletti, (ed.) Access to Justice, Alphen aan der Rijn-Milan, 1978, I; J.G. Belley, Une justice de la seconde modernité: proposition de principes généraux pour le prochain Code de procédure civile, in McGill Law Journal, 46 (2000-2001), p. 317 e ss.; M. Delmas-Marty, Les nouveaux lieux et les nouvelles formes de régulation des conflits, in J. Clam and G. Martin (éds.), Les Transformations de la Régulation Juridique, Parigi 1998, p. 209 e ss.; L. Lalonde, Les Modes de PRD : vers une nouvelle conception de la justice ? in Revue de Prévention et de Règlements des Différends, 1, n. 2 (2003), p.17 e ss. See also R. Caponi, « Just Settlement » or « Just about Settlement » ? Mediated Agreements : a Comparative Overview of the Basics, in Rabels Zeitschrifts, 79 (2015), p. 117 e ss. (p. 125).

[4] See the chapter in Journal of Empirical Legal Studies, devoted to the crisis of the trial, entitled The Vanishing Trial, 1, n.3, (November 2004), incl. articles by M. Galanter, The Vanishing Trial: an Examinations of Trials and Relate Matters in Federal and State Courts, p. 459 e ss.; M. Friedman, The Day Before Trial Vanished, p. 689 e ss. See also L. Breggia, La giustizia del XXI secolo dentro e fuori la giurisdizione: una riflessione sul principio di effettività in Rivista trimestrale di diritto e procedura civile, 2 (2016), p. 715 e ss.

[5] See S. Romano, L’ordinamento giuridico. Studi sul concetto, le fonti e i caratteri del diritto, Firenze, 1946 second ed.); R. Macdonald, L’Hypothèse du Pluralisme Juridique dans les Sociétés Démocratiques Avancées, in Revue de Droit Université de Sherbrooke (R.D.U.S.) 33, 1-2 (2002-2003), p. 135 e ss. On renewed interest for legal pluralism, see. J. Vanderlinden, Return to Legal Pluralism: Twenty Years Later, in The Journal of Legal Pluralism and Unofficial Law, 21 (1989), p. 149 e ss.; F. Viola, Il Rule of Law e il pluralismo giuridico contemporaneo, in M. Vogliotti (ed.), Il tramonto della modernità giuridica, cit., pp. 96-128; also see essays in V. Ferrari, P. Ronfani, S. Stabile, (eds.), Conflitti e diritti nella società transnazionale, Milano 2001.

[6] See C. Kessedjian, Le droit international collaboratif, Paris 2016,

[7] See R. Caponi, The Performance of the Italian Civil Justice System: an Empirical Assessment, in The Italian Law Journal, 2 (2016), p. 15 e ss.

[8] This is a quick overview of the Committee’s report, newly submitted to the Ministry of Justice- Study Committee for the development of organic discipline and reform of dejurisdictionalization tools, with particular attention to mediation, assisted negotiation and arbitration. Policy proposals and illustrative notes, January 18th, 2017, www. https://www.giustizia.it/giustizia/ (20 march 2017).

[9] See S. Chiarloni, Sempre aperto il cantiere delle riforme del processo civile, in Giurisprudenza Italiana, Maggio 2015, pp. 1257-1263.

[10] D. A. Hoffman, Colliding Worlds of Dispute Resolution: Toward a Unified Theory of ADR, in Journal of Dispute Resolution, 2008, 1, pp. 11-44; Hoffman distinguishes between Collaborative law and Collaborative Practice: “In this article I use the term “Collaborative Practice” as opposed to “Collaborative Law”, because the practice has grown to include not only lawyers but also mental health professionals, financial professionals, child specialists, and coaches.”, p. 44, n. 3.

[11] T. Barton, Collaborative Divorce: a Model for Effecting Problem-Solving and Prevention, in Harvard Negotiation Law Review, Dec. 2009, http://www.hnlr.org/category/collaborative-law/  (march 2017): “Collaborative Law” is tipically used as a synonym phrase for “Collaborative Divorce” because to date the model of collaborating lawyers representing different parties has been employed almost exclusively in divorce settings.” (footnote n. 4).

[12] S. M. Gutterman, J.D, M. A., and a Panel of Collaborative Law Experts, Collaborative Law. A New Model for Dispute Resolution, Denver (Colorado), 2004. See also D.C. Reynolds and D. F. Tennant, Collaborative Law. An Emerging Practice, in Boston Bar Journal, 45, 5 (November/December 2001), p. 1 e ss.

[13]The “Participation Agreement” form is available on the Global Collaborative Law Council website,http://www.collaborativelaw.us/articles/GCLC_Participation_Agreement_With_Addendum.pdf (26 September, 2016).

[14] J. Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): a Qualitative Study of CFL Cases, Department of Justice Canada, 2005, (http://www.justice.gc.ca/fra/pr-rp/lf-fl/famil/2005_1/), p. 5 (September 2016).

[15] J. Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): a Qualitative Study of CFL Cases, cit., “The legal services provided by counsel are limited to advice and representation regarding the non-litigious resolution of the conflict, focusing solely on developing a negotiated, consensual outcome”, p. 4.

[16] S. R. Peppet, The Ethics of Collaborative Law, in Journal of Dispute Resolution, 2008, pp. 131-161, (p. 134; 140-141).

[17] D. Hoffman P. Tesler, Collaborative Law and the Use of Settlement Counsel, in B. Roth (ed.), The Alternative Dispute Resolution Practice Guide, New York 2002, chapter 41; p. 2 e ss. (p. 2).

[18] S. M. Gutterman, J.D, M. A., and a Panel of Collaborative Law Experts, Collaborative Law. A New Model for Dispute Resolution, “In collaborative law (…) focus is on full, voluntary disclosure and interest-based narrative, not positional problem solving”, cit., p. 32.

[19] D.C. Reynolds and D. F. Tennant, Collaborative Law. An Emerging Practice, cit., p. 1.

[20] S. R. Peppet, The Ethics of Collaborative Law, cit., p. 133: “Most fundamentally, Collaborative Law has the potential to be a relationship-preserving process, rather than relationship-destroying.”.

[21] See. S. Webb and R. Ousky, The Collaborative Way to Divorce: The Revolutionary Method that Results in Less Stress, Lower costs, and Happier Kids Without Going to the Court, New York, 2007, «As a divorce litigator I’d felt for a long time that I was living in a siege mentality, merely waiting for the next battle to start, and finally I got to the point where I was ready to quit the practice of law. I enrolled in a college and was to ready to start educating myself for a new career when I had a last thought about practicing law: “If I’m actually willing to quit been a lawyer, why don’t I at least see whether there’s some out-of-the-box way I can look at things. Maybe there’s a better way of handling divorce”. So I began experimenting different ways to approach family law practice» (p. 6).

[22] See S. Webb, Stuart’s Webb Letters to Sandy Keith, Chief Justice of the Minnesota Supreme Court, http://www.collaborativelaw.us/articles/Webb_ltr_re_Collaborative_Law_1990.pdf (26 September, 2016)

[23] See. R. W. Rack, Jr., Settle or Withdraw: Collaborative Lawyering Provides Incentive to Avoid Costly Litigation, in ABA Dispute Resolution Magazine 8 (Summer 1998), p. 1 e ss.

[24] See S. R. Peppet, The Ethics of Collaborative Law, cit.: “Collaborativelawyers use contract to alter the contours of the lawyer-client relationship, and in doing so those contracts themselves become the locus for ethical inquiry.” p. 131. See also J. E. Thomas, The Ethical Implications of collaborative Law, (2013). Collaborative law. Paper 2.http://www.civiljustice.info/collab/2 (march 2017).

[25] See. C. M. Fairman, A Proposed Model Rules for Collaborative Law in Ohio State Journal on Dispute Resolution,21(2005), p. 73 e ss.; in response to Fairman see. J. Lande, Principles for Policymaking about Collaborative Law and Other ADR Processes in Ohio State Journal on Dispute Resolution 22 (2007), p. 619 e ss.

[26] See the Institute’s website: http://www.collablawtexas.com/ (september 2016)

[27]L. Maxwell, The Development of Collaborative Law,in Alternative Resolutions 16, 3-4 (Summer/Fall 2007), p. 22 e ss. (p. 23).

[28]D. Hoffman and P. Tesler, Collaborative Law and the Use of Settlement Counsel, cit., p. 5.

[29] See S. M. Gutterman, Collaborative Law. A New Model for Dispute Resolution, Denver – Colorado, 2004; Introduction, cit., p. 3 e ss.

[30] See D. Chartrand, Y. Proulx, P. Roberge, L. Woodfine, Le droit collaboratif in Justice participative. Collection des habilités 2013-2014, Montréal 2013, p. 133 e ss.

[31] J. Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): a Qualitative Study of CFL Cases, cit.. See also J. Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, in Journal of Dispute Resolution, 1 (2004), p. 179 e ss.

[32] See M. Galanter The Vanishing Trial: an Examinations of Trials and Related Matters in Federal and State Courts, cit.

[33] T. Barton, Collaborative Divorce: a Model for Effecting Problem-Solving and Prevention, in Harvard Negotiation Law Review, http://www.hnlr.org/2009/12/collaborative-divorce-a-model-for-effective-problem-solving-and-prevention/ , Dec. 2009 (march 2017).

[34] See. D. Dalfino,La procedura di negoziazione assistita da uno o più avvocati, tra "collaborative law" e "procédure participative, in Il Foro italiano, 1 (2015), p. 28 e ss. (p. 29); T. Calfapietro, La mitezza nella professionalità dell’avvocato familiare e minorile, in Minorigiustizia, 1 (2015), p. 146 e ss., (p. 147). For the North American situation, see W. Schwab, Collaborative Lawyering: a Close Look at an Emerging Practice, in Pepperdine Dispute Resolution Law Journal, 4-3 (2004), p. 351 e ss.

[35] J. Macfarlane, The Emerging Phenomenon of Collaborative Family Law (CFL): a Qualitative Study of CFL Cases, cit., p. 24.

[36] D. A. Hoffman, Colliding Worlds of Dispute Resolution: Toward a Unified Theory of ADR, cit., p. 14.

[37] D. Lopez Eychenié, Etre ou devenir un professionnel collaboratif européen du XXIème siècle, in Village de la Justice (10 mars 2015), http://www.village-justice.com/articles/Etre-devenir-Professionnel,19144.html (September 2016).

[38] Article 2062 code civil, modified by Loi n. 2010-1609 du 22 décembre 2010 - art. 37.

[39] Law 2016-1547 of November 18th, 2016 also modified divorce proceedings. Art. 50 extablishes that in case of reciprocal consent of parties, divorce can be finalized by them with the assistance of their lawyers before a notary public. Par. 1 : «Du divorce par consentement mutuel par acte sous signature privée contresigné par avocats, déposé au rang des minutes d’un notaire». See H. Fulchiron, Divorcer sans juge. À propos de la loi n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle, in La Sémaine juridique. Édition générale, 48 (2016), p. 1267.

Foddai G. Maria Antonietta

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