This post is a reproduction of an article written for the American Academy of Matrimonial Lawyers.

Cooperative Law, an alternative dispute resolution method, is designed to be a middle ground between the absolutes of Litigation and Collaborative Law.

John Lande, of the University of Missouri-Columbia School of Law, defines Cooperative Law as, “an explicit agreement by lawyers and parties setting out a negotiation process. These agreements vary and may include terms providing for extensive participation by the parties, confidentiality, sharing of all relevant information, negotiation in good faith, and use of an interest-based approach to negotiation. The process generally begins before the parties file a lawsuit or perhaps soon after. The participation agreement may provide for a “cooling off” period before engaging in contested litigation. It may also state that if the parties do litigate, the lawyers would focus solely on the merits of the issues and avoid tactics that would unnecessarily aggravate the conflict.” Cooperative Law, which originated in Wisconsin in 2003, has had success in other states such as Massachusetts.

Cooperative Law, like Collaborative Law, is based upon a simple premise. It exists to allow clients an opportunity to work within a framework of cooperation rather than divisive struggle. The problem with Collaborative Law is that its strictures are so tight that it does not, and cannot, apply to most Family Law matters. Unfortunately, as there has been no other formally defined choice available in Washington State, many clients find this out the hard way and have to absorb a huge toll in time, money, and energy to move from a Collaborative approach to traditional practice in the resolution of their cases.

The polar opposition of the Collaborative method and Litigation does not allow clients an opportunity to attempt to resolve their issues in a cooperative fashion without taking on huge risk to themselves. This is the fundamental difference between Collaborative Law and Cooperative Law. If negotiations don’t work - in Collaborative Law you must fire your attorney, hire a new attorney who will go to court, and start your case over from the very beginning. In addition, all other jointly retained experts, agents, or accountants must be similarly dismissed at this point. In Cooperative Law, your case continues with your attorney, the work done up to the point of failed negotiations is preserved, and the court or arbitrator decides unresolved issues.

Too often, Collaborative Law is pitched to potential clients as a near magical solution to their problems. It is not. The devotion of attorneys to this practice method does not, and cannot, change the nature of the deeply ingrained struggles many of our clients face. Cooperative law exists to allow clients a chance to resolve their disputes in a cooperative fashion – without overextended commitments. Cooperative Law is designed for attorneys who wish to represent their clients’ best interests, be that in a cooperative process or through a more traditional method.

The Washington Family Law Council, a recently formed not-for-profit organization, is devising a model for Cooperative Law practice in Washington State. This model will be available in the summer of 2008.

Jennifer Payseno

Hello, welcome to the home of the McKinley Irvin blog. We will begin posting on Family Law topics, from divorce to domestic partnership, soon. Make sure to check back.