Cooperative law focuses on settlement. Like collaborative practice, in cooperative law there is an agreement among the lawyers and clients for a peaceful settlement—however, it does not require the lawyers to withdraw if settlement cannot be reached. A leader in the development of cooperative law, the Wisconsin Cooperative Divorce website describes the principles of their agreement as follows:
Both parties and attorneys commit in good faith to do the following:
*Cooperate by acting civilly at all times and by responding promptly to all reasonable requests for information from the other party.
*Cooperate by fully disclosing all relevant financial information.
*Cooperate by obtaining joint appraisals and/or other expert opinions before obtaining individual appraisals or expert opinions.
*Cooperate by obtaining meaningful expert input (e.g., a child specialist) before requesting a custody study or the appointment of a guardian ad litem.
*Cooperate in good faith negotiation sessions, including 4-way sessions where appropriate, to reach fair compromises based on valid information.
*Cooperate by conducting themselves at all times in a respectful, civil and professional manner.
Cooperative lawyers report that they prefer this method because they fear that clients will be pressured toward settlement by the withdrawal of their lawyers in the event of litigation, as in the collaborative model. Under this pressure, cooperative lawyers believe a client may accept a settlement that does not meet all of her or his needs. Some holistic lawyers offer either collaborative law or cooperative law and put the choice in their clients’ hands.
However, there is controversy in the collaborative law community about cooperative law. Many believe that the commitment to settlement from the beginning is critical to creating an atmosphere of trust and settlement. Beyond just the settlement of the legal issues, collaborative law has broader goals of healing and transformation. Without the disqualification provision as the incentive to stay with the process, the critics of cooperative law believe it would be too easy to exit the process and head for litigation. Critics argue that collaborative law is more holistic. It addresses the broader emotional, financial, and spiritual questions. They suggest that cooperative law limits the resolution to the legal issues.
Pauline Tesler, a leading authority on collaborative law, has said, "I have expressed pretty much the same concern and viewpoint about "cooperative" law . . . . so long as the distinctions are carefully articulated and the clients thus are helped to understand differences and challenges/benefits of service delivery options, the choice is theirs, with our informed advice and assistance. My concerns have arisen on the legal side when I have encountered writings that argue cooperative law is exactly like collaborative law except for the DA [disqualification agreement]. It isn't, at least not when collaborative practice is done at a "best practices" level that provides services that aim to help clients arrive at deeper resolution. Doing our best in the informed choice phase means clarifying the differences and choice points involved.
“Cooperative practice” is a recent innovation using an agreement by the parties that structures a negotiation process to produce early and efficient settlements. In essence, Cooperative negotiation is a joint early case management process. It is similar to Collaborative practice but does not include the customary Collaborative practice provision limiting lawyers’ representation to negotiation. . . . Typically, Cooperative negotiation agreements involve a commitment to negotiate in good faith, provide relevant information, and use joint experts as appropriate. Cooperative processes have been used in divorce and employment cases and can be used in virtually any civil matter. For example, Garvey Schubert Barer, a Seattle-based law firm with four U.S. offices and one in China, uses a Cooperative process it calls “Win2”?that is, Win Squared?in employment cases
(see www.gsblaw.com/practice/area.asp?areaID=131&groupID=53 ).
The Boston Law Collaborative, a Boston law firm focusing on ADR [alternative dispute resolution] practices, offers a Cooperative negotiation process in family, business, and employment cases.... In addition, members of the Divorce Cooperation Institute, a Wisconsin family lawyers’ professional group, use a Cooperative process in divorce cases. The bottom line is that the Cooperative process is highly adaptable, so businesses and their lawyers can readily modify the procedures for their cases. [See] http://cooperativedivorce.org.
The following Cooperative Law case study was offered by David Hoffman of the Boston Law Collaborative:
In this case, my client (Smith) and her husband (Jones) were divorcing after a 25-year marriage. They both wanted a collaborative process and seemed like exceptionally good candidates for one. They were involved in productive couples counseling to discuss how best to co-parent their younger child, and they intended to remain working together in a small business that they co-owned. They clearly respected each other and cared for each other a great deal, despite their decision to divorce, and they communicated effectively. They had considered carefully the advantages and disadvantages of a CL [Collaborative Law] participation agreement and decided on a CNA [Cooperative Negotiation Agreement] instead. The primary reason for their decision was that their funds were limited, and they feared having to hire new counsel. They also said they were very pleased with their choice of counsel and did not want to lose the opportunity to work with us. The five four-way meetings that were held in this case were among the most productive, collaborative, and deeply meaningful sessions I have had in 23 years of work in the area of family law. There were a few challenging issues, and one very challenging issue regarding the primary residence of their younger child (the older was in college). But the parties had enormous respect for each other, and the principles contained in their CNA supported their good intentions. At the final four-way meeting, my client asked if someone in my office could take a picture of the four of us, because she wanted it as memento of the good feelings that the process had engendered. (I have never, in the several hundred divorce cases I have been involved in, had such a request and I found it a rewarding reminder of the potential of cooperative negotiations.)
Excerpted from: Cooperative Negotiation Agreements: Using Contracts to Make a Safe Place for a Difficult Conversation by David Hoffman. http://www.bostonlawcollaborative.com/