Kyle’s Courthouse Deli is just down the block from the Lehigh County Courthouse. Thanks to its proximity, name, and litigation-themed menu, it’s a favorite lunch spot for Allentown’s legal community. Any given day between noon and 1:30, you’ll see a roll call of attorneys, court staff, deputies, and even judges.
One day, as I was waiting for my “Paralegal” (Italian Sub with extra oil and vinegar and oregano), one of our learned Judges walked into Kyle’s with a companion. We exchanged courteous nods, and he returned to his conversation. I didn’t catch the context – for all I know he could have been discussing the case I had recently argued before him – but I distinctly heard him say, with frustration:
“Why can’t they just agree?”
It could appear unseemly for a sitting Judge, whose job is making decisions when people can’t agree, to bemoan the fundamental purpose of his own position. If people could just agree, we wouldn’t need Judges. Or lawyers, for that matter.
Fast forward many months later. COVID-19 is now the new normal. There are fewer people at Kyle’s, but you can still recognize the same faces, even behind masks. I am not at Kyle’s; I’m in court, looking forward to heading there during the inevitable 90-minute break from the custody trial that is about to commence.
My opponent and I are discussing the matter while we wait for the Judge to enter the courtroom. We are cordial and able to make casual conversation without being adversarial (we’ll do that once we’re on the record). The particular case is, comparatively, an “easy” custody trial. No major concerns about child abuse, drugs, or parental alienation. Just two loving parents who need the court’s help because they can’t agree. That’s when he says it:
“Why can’t they just agree?”
Our profession is founded on and relies on other’s inability to agree. And yet I find it more and more common that my colleagues and I wish our clients would just figure it out.
Act 55 of 2018 adopted the Uniform Collaborative Law Act (“UCLA”) as law in Pennsylvania, now encoded at 42 Pa. C.S. § 7401 et seq. The Act established the framework for a new method of dispute resolution, specifically geared toward family litigation, but also usable in estate, probate, and other civil matters. Collaborative law creates a new methodology to facilitate an agreement between two people who seemingly can’t agree.
The Collaborative Process starts with two attorneys, trained in the Collaborative Process, to represent the parties. But under this framework, the two attorneys form a “team” along with three neutral professionals: a financial professional (often a CPA), a mental health professional, and a “Coach” (who could be from any of the three professions).
It’s not mediation (though it incorporates mediation techniques). It’s not “negotiation” in the traditional sense that we are attempting to weigh the “what” they could get in court against the relative costs and long-term consequences of protracted litigation. It’s certainly not litigation in the traditional sense, because the Process starts with a written contract prohibiting the parties from going to court. Instead, it shifts the conversation away from legal rights and entrenched positions and asks the parties to identify their interests and goals. If the party’s position is “I want the house and the kids,” the Process helps the parties express the underlying reason why they want the house and the kids, and then rephrase those interests in a non-adversarial manner.
The old adage says, “a successful negotiation means everyone is equally unhappy.” We lawyers could expand that to say that a successful custody litigation means everyone is equally angry. The result of a successful Collaborative Law Process is that everyone leaves with their goals met, and their interests are satisfied. And, in the end, the parties who couldn’t agree have learned how to agree.
There are vibrant and active Collaborative Practice Groups in Philadelphia, Pittsburgh, and Harrisburg. Here in the Lehigh Valley—Pennsylvania’s third-largest metropolitan area—we don’t have it yet. What we have is a group of legal professionals who wish people could learn to agree. Collaborative law gives us an opportunity to teach them how.
For more information on Collaborative Law, take a look at the International Academy of Collaborative Professionals’ website at www.collaborativepractice.com.
