I recently attended the Global Collaborative Law Council annual law conference in Lincoln, Nebraska. While our use of the collaborative practice in Nebraska and Iowa focuses on family law matters, the coastal states are using collaborative practice to help people find a resolution to all types of matters including business, probate, and employment. 

The test to whether the collaborative approach can be used is really questioning if the participants who have the conflict at hand have a vested interest in maintaining a relationship following the dispute. In all types of businesses, there are relationships formed to assist with both companies' growth and success. Those relationships can be comprised of members of a supply chain, contractors and subcontractors, or corporate service providers. Relationships are core to the success of all of these examples.  

In my day-to-day practice, I end up doing a fair amount of construction law work. I’ve worked on everything from simple contract disputes to major disputes about the cause of a project failure. More often than not, the parties in the dispute have worked together before the disagreement and have a reason to try and figure out a solution so that they can work together again in the future. Saving these relationships is advantageous to both parties and prevents unintended collateral damage of a sour relationship affecting other relationships, other business opportunities or other projects.  

The foundational principles of the collaborative process are that the participants and their respective attorneys agree to find a resolution outside of court and that should court intervention be necessary, the team members involved in the collaborative process, including the attorneys, are conflicted from further representation. Beyond those two main principles, participants in a construction law dispute who agree to use the collaborative model, also greatly benefit from the concept of hiring a neutral professional. A neutral professional could be a business valuation expert, a care planning expert if there is an injury involved in the dispute, an engineer, or architect. 

The role of a neutral expert is slightly different when used in a collaborative process versus a litigated matter. In a litigated matter, the expert is retained to help that party prove their case, usually to prove causation- that the other party’s actions or inactions caused the harm; or to prove damages- the amount of harm caused by the other party. As you can imagine, in the litigation world, if one party hires an expert to give his/her opinion, the other party hires a dueling expert to say that the first expert’s opinions are wrong and that their opinion as to causation or damages is better. Dueling experts get very expensive very fast and do little to assist the parties with finding a resolution or maintaining a working relationship. 

The role of a neutral expert in a collaborative process is focused on education and solution finding. Instead of one side attempting to prove the other wrong, the parties are at the table working to find a resolution. Often finding a resolution that works for both parties requires education and creativity.  

A neutral professional can allow a safe place for all participants to become educated on the issues and have an unbiased approach. We frequently use a neutral financial to assist one or both of the parties in understanding a family's finances. 

Neutral business valuators are used to work with a family or business partners in the same manner. The process starts with a meeting during which the parties can ask questions of the professional to understand the concepts, the approach, and the process. Once there is a level of education and understanding, the participants are more empowered to find a resolution that works for them and their family. 

In all the ways in which we use collaborative process, we are always working to find shared interests. The main idea of the collaborative process is to allow the stakeholders to make their own decisions. We are very familiar with how collaborative tools are beneficial to families in the family law arena, however less known is how the same collaborative skills and tools can be used and beneficial to businesses and families who are dealing with any major life change.

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