Collaborative Law: An (un)ethical process for lawyers?

This article critically examines the practice and ethical underpinnings of Collaborative Law (CL), one of the newest processes in the ADR suite of options available to parties in dispute. CL has been described as mediation without the mediator. The parties and their lawyers agree to negotiate in good faith and in a cooperative non-adversarial manner without the assistance of a mediator. However, controversially, they also agree that if settlement is not reached, the lawyers are to withdraw and be disqualified from representing the parties in any subsequent litigation. The parties must engage new lawyers and often new expert witnesses if they wish to proceed with litigation. In this article, the author highlights the potential for CL lawyers to exert undue pressure on their clients as the goal of settlement is given priority over the interests of the clients. The article describes the main features of CL, its contractual supports, its potential benefits and the potential for its abuse.