Collaborative Law - A new form of alternative dispute resolution
On 1 January 2019, the legal provisions on collaborative law (sections 1740-1747 of the Belgian Judicial Code) entered into force. Collaborative law is essentially a specific type of confidential negotiation between parties assisted by their respective counsel. In this article, we explain the mean features of this new form of alternative dispute resolution.
This novel form of alternative dispute resolution (“ADR") builds further on the principles of “interest-based negotiation", allows parties to keep control over negotiations albeit being assisted by their counsel, and effectively eliminates any “principal-agent problem" that may arise in negotiations involving lawyers. In January of this year both Bar Organisations in Belgium (OVB and OBFG) adopted a joint Regulation specifying the rules on training, licensing and conduct that apply to those lawyers wishing to offer this new kind of ADR-service. We are proud to announce that several of our lawyers have followed the training and are licensed to act as Collaborative Lawyers.
How to explain the main features of this new form of ADR?
Interest-based versus position-based negotiations
Interest-based negotiation builds further on insights by the Harvard Negotiation Project founded by William Ury and Roger Fisher. It takes the view that the basic problem in a negotiation does not lie in the parties' conflicting positions but in the conflict between their interests and needs. By identifying these interests and needs, parties can focus on them in view of finding a solution that can produce mutual gains. Various technics can be put in place to achieve this. Essentially, these technics incite the parties to move away from the idea that there is only one solution to their dispute and to think creatively.
The method of principled negotiation is summarized in four basics principles: (i) separate the people from the problem, (ii) focus on interests, not positions, (iii) invent multiple options looking for mutual gains before deciding what to do, and (iv) insist that the result be based on some objective criteria.
Experience learns that this way of negotiating significantly enhances the chance of preserving/restoring the (business) relationship between parties.
Allowing the parties to keep (regain) control over “their" negotiation
Collaborative law puts the parties back at the centre of the process, trusting that they are the best placed to find a solution to their dispute provided they have the proper assistance from their counsel. Clients thus have an active role in the negotiation, which is not focused on legal issues but rather on business needs and interests.
This feature of collaborative law addresses a common complaint by clients, i.e. their feeling of losing control over “their" negotiation (and often: over the continuing commercial relationship with the other party) once they involve their lawyers.
It actively involves counsel, thereby eliminating any “principal-agent problem"
This being said, there are many advantages of involving counsel in pre-litigation negotiations. Communications exchanged between (Belgian) counsel are privileged. This means that clients do not have to fear that the content of the negotiations will be used against them should the counsel not reach an agreement. In addition, lawyers assisting their clients, also advise them as to their legal position and chances in court (and are best placed to do so).
Collaborative law retains these advantages since (i) parties must be assisted by (specifically-trained) counsel and (ii) the process is confidential by law.
Yet, in normal negotiations the involvement of counsel may give rise to concerns in term of the “principal-agent problem". In some circumstances, a client may be wondering whether the lawyers (whether its own or the other party's) are driven by their own interests (i.e. generating fee income, market visibility etc.) rather than by the clients' interests.
One very interesting feature of collaborative law is that the parties' counsel, once they have engaged in a collaborative negotiation process, undertake not to assist their clients outside of this process. Once the process of collaborative law is terminated (whether by an agreement or not), the counsel can no longer act for their clients in relation to that specific case. In particular, they cannot conduct any judicial or arbitral procedure. This rule guarantees that the parties' counsel are solely committed to the common goal of reaching an amicable agreement and eliminates any risk of “principal-agent" problem.
Proper method = proper training
Under Belgian law a process of collaborative law can only be conducted if both parties are assisted by lawyers specifically trained in collaborative law. This is because lawyers in collaborative law learn the best technics to i.a. (i) restore an efficient communication between parties in dispute and (ii) achieve an amicable resolution. These technics are based on the method of interest-based negotiation, which is put in practice through a step-by-step process. Through the first steps, parties' counsel will listen to both parties and, based thereon, will identify (i) the points to be discussed as well as (ii) the parties' respective interests. The dispute will be broken down into as many points of discussion as possible, i.e. reducing a big issue into smaller ones. Then, the negotiation will enter a brainstorming phase during which the parties will come up with several options to resolve the dispute. At the end of the process, the aim is that parties are able to make global offers that meet each other's interests.
This step-by-step process is unusual and may take the parties aback at first. However, it is tried and tested, and has a high rate of success (according to some sources between 70 and 90%). By moving away from their stated positions, parties can more easily negotiate and come to a mutually agreeable solution.
The parties' counsel have an important role in the process of collaborative law. They are responsible for putting the process in place and fostering it. They nevertheless remain their own client's trusted advisor and confident, whom they will assist throughout the process, both during the negotiation meetings and in-between. At the end of the process, they formalize any agreement reached by the parties.
Stibbe now offers the full range of ADR services
Within our firm, several lawyers had already followed a mediation training, allowing them to act as mediators and/or helping them assist clients through the process.
Now, several of our lawyers have also followed the required training and signed the charter of collaborative law. They can thus assist clients throughout the Collaborative Negotiation process. In accordance with their statutory and disciplinary duties, Stibbe lawyers will in each matter inform the client of the ADR processes that are available to it (collaborative law, mediation…) and determine whether - and which type of - ADR is recommended for its dispute. If you have any questions or queries, do not hesitate to contact:
- Sophie Bourgois, who is licensed to act as a Collaborative Lawyer, focuses her practice mainly on four core areas: international dispute settlement, private international law, public international law, and insurance law.
- Oliver Stevens, who is licensed to act as a Collaborative Lawyer, is an expert in litigation in the fields of contract law, security interests, banking law, insurance law, and standard commercial agreements. He also specialises in insolvency, seizure, and execution law.
- Nicolas Résimont, who heads the Arbitration and ADR group at Stibbe Brussels. He specialises in domestic and cross-border litigation as well as national and international arbitration, acting as both counsel and arbitrator.