Collaborative law: the future cornerstone of the resolution process?

• Author: Louise Crowley
• Position: College Lecturer, Faculty of Law, University College Cork
• Pages: 19-29

2009] The Future Cornerstone of the Resolution Process? 19

COLLABORATIVE LAW:

THE FUTURE CORNERSTONE OF THE

RESOLUTION PROCESS?

LOUISE CROWLEY*

I. WHAT IS COLLABORATIVE LAW?

Collaborative law was developed originally in the United

States,1 and more recently has received significant support from

Irish family law practitioners. In essence its ultimate aim is not

particularly novel – it seeks to encourage and facilitate the

resolution of family law disputes without recourse to the

adversarial courts system.2 Recent court-based research has

confirmed the long-held view that it is the exception rather than

the rule that a family law dispute will reach the courtroom.3

What is different about the practice of collaborative law is that the

resolution of the dispute becomes the primary, if not the sole aim,

of both parties who sign up to an “agreement to agree” the details

of the dissolution. Perhaps just as importantly, collaborative

lawyers are parties to this non-adversarial approach to the dispute,

and commit to relinquish their involvement in the case in the

event that the parties eventually proceed to court hearing. In terms

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* College Lecturer, Faculty of Law, University College Cork.

1 The practice of collaborative law was first advocated in 1990 by Stuart Webb,

a family lawyer from Minnesota.

2 The collaborative law process is described by Tesler as consisting of “… two

parties and their respective lawyers who sign a binding stipulation defining the

scope and sole purpose of the lawyers’ representation: to help the parties

engage in creative problem-solving aimed at reaching a negotiated agreement

that meets the legitimate needs of both parties”: Tesler, Collaborative Law

(American Bar Association, 2001), p. 7.

3 See generally reports published by the Courts Service entitled Family Law

Matters, setting out the research and analysis of Carol Coulter. For example,

Coulter examined the settlement rates on the South-Western Circuit noting the

variability of those rates but including a 96% settlement rate in Limerick

Circuit Court cases. See (2007) 1(3) Family Law Matters 46, 46-47. In “Inside

the Family Courts”, Irish Times, 7 March 2009, Coulter noted that more than

90% of family law cases in the Circuit Court are settled without going to a full

hearing.