Wednesday, August 18, 2021
John Lande has posted to SSRN Canaries in the Litigation Coal Mine. The abstract provides:
Although litigation provides many vitally important benefits for individuals and society, it can harm everyone it touches, including litigators. Collaborative lawyers offer clients the collaborative process, which consists solely of negotiation. Because these lawyers find litigation to be extremely traumatic, they value the opportunity to handle collaborative cases, in which they are precluded from litigating by virtue of an enforceable “disqualification agreement.” These lawyers are like canaries in the “litigation coal mines,” warning of dangers that litigation can cause.
This article highlights traumas that litigation can cause law students, lawyers, and parties. It describes the benefits that collaborative practice can provide for lawyers and parties – as well as challenges in collaborative practice. However, relatively few parties use collaborative practice, especially in non-family law cases. This article emphasizes the importance of all lawyers helping clients manage their conflicts as well as possible while minimizing the harm to clients, people in their lives, and themselves (i.e., the lawyers). It includes links to practical resources to help lawyers do so, especially when they need to litigate.