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Principles for Policymaking About Collaborative Law and Other ADR Processes John M University of Missouri School of Law Scholarship Repository Faculty Publications 2007 Principles for Policymaking about Collaborative Law and Other ADR Processes John M. Lande University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Dispute Resolution and Arbitration Commons, and the Legal Profession Commons Recommended Citation John Lande, Principles for Policymaking About Collaborative Law and Other Adr Processes, 22 Ohio St. J. on Disp. Resol. 619 (2007) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Principles for Policymaking About Collaborative Law and Other ADR Processes JOHN LANDE* I. IN TRODUCTION ........................................................................................ 620 A . Policym aking Principles ................................................................. 620 B . C ollaborative Law ........................................................................... 625 II. RECOMMENDED PRINCIPLES FOR POLICYMAKING A BOU T A D R .......................................................................................... 629 A. Use of Dispute System Design Analysis with an Ecological Perspective of Dispute Resolution ................................ 629 B. Provision of a Variety of Desirable Processes for Disputants and System Stakeholders ......................................... 633 1. Provision of Procedural Options for Disputants in Individual C ases ...................................................................... 633 2. Design of Dispute Systems to Provide Choices of Process O ptions ..................................................................... 636 C. Consideration of Wide Range of Policy Options and Recognition of the Limits of Regulation .................................. 640 1. ADR Policy Goals and Options .................................................. 641 2. Problems in Using Legal Regulation to Manage ADR ............... 642 3. Problems with Legal Definitions ................................................ 647 4. Appropriate Regulation of ADR ................................................. 651 5. Policies Promoting Reflective Practice ....................................... 655 D. Development of Appropriate Relationship Between ADR Innovations and the Contemporary Dispute R esolution System .......................................................................... 658 III. APPLICATION OF POLICYMAKING PRINCIPLES TO PROPOSALS FOR NEW ETHICAL RULES FOR NEGOTIATION ................. 664 * Associate Professor and Director, LL.M. Program in Dispute Resolution, University of Missouri-Columbia School of Law, J.D., Hastings College of Law, Ph.D., University of Wisconsin-Madison. First, I want to thank Chris Fairman, a worthy partner in exploring the similarities and differences in our views. Sincere thanks to Jeanne Fahey, David Hoffman, Julie Macfarlane, Larry Maxwell, Michael Moffitt, Scott Peppet, and Len Riskin for thoughtful comments on earlier drafts of this Article. Thanks also to faculty at the University of Missouri-Columbia and University of Kansas Law Schools for comments at presentations of this Article. Thanks also to Anne Gardner for research assistance under the Shook Hardy and Bacon Research Associate program. This Article does not necessarily represent the views of any of these people. 619 HeinOnline -- 22 Ohio St. J. on Disp. Resol. 619 2006-2007 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol 22:3 2007] A. Summary of Fairman's Proposal for New Rule for Collaborative Law .....................................................................665 B. Summary of Peppet's Proposal for New Rule for Collaborative N egotiation ...............................................................670 C. Analysis of Fairman's Argument (Including Comparison with Peppet's Argument) ...........................................673 1. Problematic Assessment of Need for New Ethical Rule .............673 a. Lack of Demonstrated Harm to Clients Requiring N ew Ethical Rule ..................................................................674 b. Compatibility of Collaborative Law with the General M odel of Law yering .............................................................678 c. Compatibility of Collaborative Law with Existing Ethical R ules .........................................................................682 d. Mistaken Claim that Lack of New Ethical Rule Hampers Growth of Collaborative Law ................................689 2. Focus on Promoting a Single Process Rather than Improving the System to Meet Needs of Disputants and System Stakeholders ...........................................................691 3. Excessive Reliance on Regulation as Policy Strategy ................694 4. Potential for Synergy with the Legal System .............................705 IV . C ON CLU SION ........................................................................................706 I. INTRODUCTION A. Policymaking Principles "Let's enact a new rule." That's a tempting approach to solve many kinds of policy problems. It is especially tempting for legislators, judges, lawyers, and legal scholars to propose new rules. Rules are our tools. Rules have the potential to encourage or discourage behavior in desired ways, allocate benefits and sanctions, protect individual rights and freedoms, establish regimes of fairness and predictability, express social values, and educate people about all this. Thus, legal rules can be excellent tools for achieving a variety of important goals. While appreciating the valuable benefits of using rules as policy instruments in many situations, this Article argues that we should normally resist the temptation to make policies governing "alternative dispute resolution"' (ADR) processes merely or primarily by adopting new rules.2 1 The term "alternative dispute resolution" is generally used to refer to a set of dispute resolution processes, including mediation and arbitration, as well as a wide range 620 HeinOnline -- 22 Ohio St. J. on Disp. Resol. 620 2006-2007 PRINCIPLES FOR POLICYMAKING ABOUT COLLABORATIVE LAW Strategies that rely exclusively or primarily on regulation 3 can create significant problems. In the name of promoting uniformity, regulation can restrict or discourage legitimate choices by disputants and dispute resolution of others such as early neutral evaluation, summary jury trials, and ombuds work. The term is conceptually problematic but it is embedded in the vernacular and hard to avoid. It raises empirical issues about which processes are most common and philosophical issues about which processes do or should have greater value than others. These discussions often seem unproductive and it is generally preferable to use the term "dispute resolution," referring to all dispute resolution processes, including litigation. See John Lande, Getting the Faith: Why Business Lawyers and Executives Believe in Mediation, 5 HARV. NEGOT. L. REv. 137, 140 n.5 (2000) [hereinafter Lande, Getting the Faith]; John Lande, Toward More Sophisticated Mediation Theory, 2000 J. Disp. RESOL. 321, 324-25 [hereinafter Lande, Sophisticated Theory]. Because this Article makes distinctions based on use of court adjudication processes, it uses "ADR" in its conventional meaning of processes other than traditional litigation. From this perspective, one can think of ADR as a set of innovations intended to provide advantages over the contemporary legal system. Past ADR experiments that were once radical (e.g., workers' compensation, small claims courts, juvenile courts, arbitration, mediation, and even medieval courts of equity) have become incorporated into the legal system and are now generally taken for granted as normal parts of that system. See generally Thomas 0. Main, ADR: The New Equity, 74 U. CiN. L. REv. 329 (2005) (arguing that ADR provides relief from hardships of formal litigation similar to old courts of equity). 2 In this Article, legal rules refer to generalized prescriptions (and related provisions) enforceable through court or other governmental processes. In the ADR context, this obviously includes such things as laws requiring use of ADR procedures and rules establishing evidentiary privileges and ethical requirements. Rules or standards adopted by private professional associations may be used in court as evidence of the standard of care in malpractice lawsuits. See Kathleen J. McKee, Annotation, Admissibility and Effect of Evidence of ProfessionalEthics Rules in Legal MalpracticeAction, 50 A.L.R. 5TH 301, 309 (1997) ("Although it is generally recognized that the intent of professional ethical codes is to establish a disciplinary remedy rather than to create civil liability, many courts have determined that pertinent ethical standards are admissible as evidence relevant to the standard of care in legal malpractice actions..."); A.B.A., AM. ARB. Ass'N. & ASs'N. FOR CONFLICT RESOL., MODEL STANDARDS OF CONDUCT FOR MEDIATORS, NOTE ON CONSTRUCTION (Sept. 2005), http://www.abanet.org/dispute/documents/modelstandardsconduct april2006.pdf [hereinafter A.B.A. ET AL., MODEL STANDARDS OF CONDUCT FOR MEDIATORS] ("[T]he fact that these Standards have been adopted by the respective sponsoring entities, should alert mediators to the fact that the Standards might
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