By Michael Zeytoonian, Esq. & R. Paul Faxon, Esq.
Transactional law, centered on structuring voluntary and private business deals, and civil litigation, involving legal disputes between parties who need the public courts to impose a judgment, occupy different worlds in the practice of law. On those rare occasions that these legal disciplines do intersect, it is neither by design nor is it typically welcomed with enthusiasm. However, one noteworthy exception exists – in the freeing and creative world of collaborative law. Within the framework of resolving disputes collaboratively, the skill sets and insights of these two disciplines within the law not only are allowed to complement each other, they bring out the best in each other and their practitioners. The result is a synergy in which the sum is greater than each of its parts, and the elusive win-win resolution of a dispute.
The two authors know this to be true not only in theory, but also because they experienced this outstanding result in a collaborative case. The proof is found in the outcome of a breakup, and resulting successful re-structuring, of a closely-held corporation of four partners. Paul Faxon, a commercial transactional attorney, represented three majority shareholder partners, and Michael Zeytoonian, a litigator, represented the minority shareholder partner. The two collaborative lawyers discovered that each of their respective perspectives brought different insights into the collaborative process, feeding off each other and providing the necessary elements to complete the resolution of the dispute in a way that met the needs of all parties.
What is it about the collaborative process that created the perfect environment for this confluence in the law? The collaborative law process inherently promotes a full and robust expression of settlement possibilities, unleashing the lawyers to draw on the very best of their right-brain creative options for settlement, and in the process tap the best features of their legal training and experience.
In a sense, the collaborative process transforms the litigation approach into a transactional path. In another sense, the transactional approach is tested and enhanced by the litigator’s rights-based legal analysis and advocacy. The presence of the dispute shifted the “what if it happens” theoretical and proactive view of the transactional attorney into the “it has happened” lens of the litigator. But in collaborative law, the litigator is allowed to put down his “warrior” tools and apply his analytical skills, advocacy and counseling without having to be deterred by the positional need to win (which requires that the other side must lose). The transactional attorney gets the opportunity to use his anticipatory talents to diffuse a dispute, rather than to prevent one. Put differently, and applying a baseball analogy if you will (as the two writers are also avid Red Sox fans), the negotiator/problem solver in the litigator gets to start at the beginning of the dispute instead of coming in as a closer at the end. And the set-up man/problem solver in the transactional lawyer gets to feel the rush of being called in at the end as a closer.
Another feature of the collaborative process is its future orientation rather than the past orientation of traditional, zero-sum game dispute resolution. While the orientation of a transactional attorney is usually forward-looking and relates to present and future performance, he or she typically works outside the realm of an active dispute where the litigator resides. When lawyers are agents of their clients mired in positional-based approaches like litigation, they are, by definition forced to focus on the past – what happened and who caused what, who owed a duty to whom, etc. But when clients direct their lawyers to focus on satisfying the clients’ interests, the lawyers are free to look forward and find and create options for resolution.
Involving both approaches adds to the depth of the collaborative process and the completeness of the settlement. The transactional lawyer comfortably takes direction and the lead from the client and implements the client’s interests and business deal, subject to raising issues and potential deal elements for the client’s consideration. The litigator is ever mindful and protective of the client’s rights. The litigator’s past orientation takes into consideration that in order to move forward, wrongs may need to be acknowledged and understood. The transactional lawyer has to move from anticipator to negotiator in a tense environment; likewise the litigator has to move from battler to negotiator. Both of them share in the tasks of facilitating both the conversations needed and the options to be developed by their clients. They both have to incorporate, to just the right degree, elements that are not typically part of their respective realms. The transactional lawyer must embrace the chess-playing nature of the litigator and the litigator must factor in the non-verbal cues and nuances of the parties that silently reflect their real interests and subtly meet their unspoken needs.
Already, in this convergence of legal approaches, we see some common ground – both collaborative lawyers are negotiators, problem solvers and advocates; both serve as facilitators for their clients. Both must be focused on the other parties’ interests and explore how they may be met without sacrificing his own client’s interests or rights. In addition, both lawyers must model the spirit and the tools of collaboration. The mutual trust and respect between them must be evident in order for the clients to embrace the same elements. These intangibles serve two critical functions: they contribute largely to the creation of a container of safety and trust necessary for the clients to operate transparently within without the fear of being blindsided or ambushed. They also free up the lawyers to advise either side when interests are shared by both parties, thus benefiting both sides in the dispute.
The lawyers must also encourage the transformation of their clients’ views of how information is exchanged as well as the way it is used, from “hide the ball and exaggerate the favorable information” to openly sharing all relevant information. It is essential for the parties (and the lawyers) to understand that the more relevant information is shared and on the table, the easier it is to identify the parties’ interests and craft the best solutions.
These intangibles also help the lawyers handle potentially derailing situations that will most often arise, and work through them with their clients. They can continue to be advocates for their clients, while at the same time stress the positive values of the collaborative process — that through it, both sides will likely have something that they may not have had before, and will not be forced to give up any rights or feel unprotected. Throughout this process, the collaborative lawyers should look for opportunities to reinforce the notion that the clients are producing their own forward looking dispute resolution deal, rather than accepting by default one mired in the past and imposed by an arbitrator, judge or jury.
Likewise, the collaborative process transforms the way experts are viewed and utilized. Collaborative, neutral experts are seen as a tool and a resource both for clients and for the process as a whole. Just as the collaborative lawyers are freed up to be creative in the interest-based process, so too are experts liberated to educate and advise the entire group on the best ways to accomplish the clients’ future-oriented actions. In litigation, experts, like lawyers, are hired guns, necessary evils in a sense, used solely to validate their client’s position and discredit the position of the other party. Often times in litigation, competing experts cancel each other out and are merely a drain on resources, and even that is only in those rare occasions (less than 2% of the time) that they actually do testify at trial.
Both the transactional skills of making the deal and the litigator instincts of protecting the client’s rights contribute to the assessment of the options identified in the collaborative meetings and after that, to the drafting of a sound settlement agreement. For the settlement agreement must be the product of the litigator and the transactional lawyer, merged into one lawyer, “The New Lawyer” that author Julie MacFarlane identifies in her important book of the same title (UBC Press 2008). MacFarlane appropriately refers to this lawyer, the hybrid of the traditional lawyer and the negotiator, as the conflict resolution advocate.
So then, the collaborative process is not only a collaboration of people working toward resolution and settlement by intention and design. It is also a true collaboration of valuable and relevant skill sets, insights and approaches. One might say that collaborative law is creating a new area of practice: “transactional litigation.” But in keeping with the goals of win-win and creating a sum that is greater than its parts, the more appropriate description for this legal confluence and this movement of a new breed of lawyers who are refining and crystallizing their purpose is “collaborative practice.”
R. Paul Faxon, Esq., of counsel to The New Law Center in Cambridge, MA, and Archstone Law Group in Waltham, MA, concentrates his practice in the areas of business and real estate transactions and collaborative law. He can be reached at firstname.lastname@example.org.
Michael Zeytoonian, Esq., the founding member of the Zeytoonian Center for Dispute Resolution, LLC, in Wellesley Hills and Westborough, MA, is a lawyer, mediator and ombudsman. He concentrates his practice in the areas of employment, business and negligence law. He can be reached at email@example.com.
Originally published to HNLR Online on Apr. 15, 2009.