What do you mean when you describe yourselves as a “collaborative”? In what ways are you different from a conventional law firm? BLC is an “LLC” – that is, a limited liability company – engaged in the practice of law and providing dispute resolution services. We have space-sharing arrangements with our affiliate members. And we call ourselves a collaborative because one of the distinguishing features of BLC is working together – collaborating – in our client work and in our efforts to change the way law and related services are delivered.
With your emphasis on collaborative law, do you still have lawyers who litigate cases? Yes, some of our lawyers represent clients in court if the case is not suitable for collaborative law or one of the disputants is not willing to use collaborative law or a non-court method of dispute resolution. Visit our Litigation section to learn more about our services and professionals in this area.
Does BLC practice law differently from other firms? We believe we do. Our first instinct, in every case, is to look for collaborative, non-litigation solutions. Our goal is not simply to save our clients money (although that is a major goal); we are also trying to save our clients from the human toll that litigation takes – in time, aggravation, damaged relationships, uncertainty, and loss of privacy.
Why would a law firm adopt an approach (such as collaborative law) that results in lower revenues for the firm? Our experience has shown us that saving money for our clients is not only the right thing to do – it is a sound business plan because it results in referrals and repeat business.
What brought you together? We all share a vision of making the practice of law a more humane profession. For us, this means taking client service very seriously, using a multidisciplinary, holistic approach to the practice of the law, and creating a workplace community – involving lawyers, administrative staff, and people from other professions – that fosters teamwork, mutual respect, and collegiality.
What do you charge for your services? Our fees vary by professional and type of service. Please click here for information about our fees and billing policies.
What is collaborative law? Collaborative law is a process in which both parties are represented by counsel, but the parties and their attorneys agree, in writing, to attempt to settle the matter without litigation or even the threat of litigation. They promise to take a reasoned stand on every issue, to keep discovery informal and cooperative, and to negotiate in good faith. If either party seeks intervention from a court, both attorneys must withdraw from representation.
What are the pros and cons of collaborative law? Collaborative law allows parties to negotiate with a lawyer at their side but without the imminent risk of the case proceeding to court (with the outcome thereby removed from the control of the parties). The downside is that, if negotiations fail, the parties will be put to the additional expense of hiring new counsel. The upside is that those potential costs provide a powerful incentive for the lawyers and clients to negotiate productively.
Is collaborative law less expensive than non-collaborative law? On average, collaborative law cases tend to be less expensive for both parties than cases handled without collaborative law. This is particularly true when collaborative law is compared to cases resolved in court. (Statistical studies of collaborative law are not yet available, because collaborative law has been in use for just over ten years, but empirical data from experienced collaborative law practitioners are consistent in finding cost savings.)
If I choose collaborative law, will my rights be protected and, if so, how? In a collaborative law process, each party’s attorney has an absolute duty to represent solely his or her client’s interests. The collaborative law process does not mean that an attorney can or should be anything less than 100% on the side of his or her client. What is unique about collaborative law, however, is that the CL attorney takes responsibility for advancing the client’s interest in settlement (as well as other interests), and therefore zealous advocacy in a CL negotiation is focused on finding a mutually agreeable solution.
What if I am interested in a collaborative solution but the other party is not? Collaborative law is not appropriate for every case and every situation, and collaboration cannot succeed if one or more of the parties is unwilling to participate. However, our experience has been that even lawyers who are unfamiliar with collaborative law are often willing to try it if the idea of using such a process is presented to them by a knowledgeable and experienced practitioner.
What is mediation? Mediation is a process in which a neutral third party (the mediator) assists the parties in resolving their dispute by facilitating negotiation. The mediator has no authority to impose a settlement, and the parties are under no obligation to reach agreement. Mediation proceedings are generally private and confidential.
What is the difference between mediation and arbitration? Arbitration is a private form of adjudication. It is generally less formal than a trial in court. However, an arbitrator’s role is to decide the outcome of the case, and the arbitrator’s decision is binding. In mediation, the parties retain control of the outcome. They design their own settlement, which then becomes legally binding.
What is the difference between mediation and collaborative law? In collaborative law, as in mediation, the parties retain control of the outcome, but the negotiations are conducted without any neutral third-party to facilitate them. The lawyers in a collaborative law case are trained in interest-based negotiation and take responsibility for facilitating the negotiation; many collaborative law attorneys are also experienced mediators.
What is the difference between mediation and case evaluation? A case evaluator’s job is to provide the parties with a prediction of how a judge, jury, or arbitrator would decide the case if it were adjudicated. Mediators will sometimes, if asked by the parties, provide case evaluation.
What are the advantages and disadvantages of each of these processes? Arbitration, mediation, case evaluation, and collaborative law – all of them are services that BLC provides – have one feature in common: they are all private, non-court methods of dispute resolution.
- Arbitration is final and binding – this can be an advantage if you are victorious and a disadvantage if you are not. The arbitration proceedings are also constrained as to subject matter – the arbitrators are willing to listen to only those aspects of the case that are germane to the legal claims presented in the case. There is less opportunity, as compared with collaborative law or mediation, to arrive at a creative outcome, because the arbitrators have the authority to provide only those forms of relief or compensation that are available in court. However, along with those constraints comes the opportunity of the parties to limit, by agreement, the amount of time that the arbitration will take and determine the scheduling, so that they can be confident of a result being reached at a definite time.
- Mediation provides the parties with an opportunity to negotiate freely, without the risk that a third party (the mediator) will impose a resolution. The downside, however, if that the parties may feel that mediation was a waste of time and money if it does not result in a settlement. Mediation enables parties who feel they are the victims of wrongdoing to be heard, and allows the parties to “think outside the box,” developing creative strategies for settlement. Some litigators fear, however, that they have to reveal too much of their case in mediation, without any assurance that settlement will result.
- Collaborative law allows parties to negotiate with a lawyer at their side, but without the imminent risk of the case proceeding to court (with the outcome thereby removed from the control of the parties). The downside is that, if negotiations fail, the parties will be put to the additional expense of hiring new counsel. The upside is that those costs provide a powerful incentive to negotiate effectively.
- Case evaluation can be a useful adjunct to mediation or collaborative law, because it enables the parties and their lawyers – on a non-binding basis – to get useful input on “Plan B” (i.e., what would happen if they abandon negotiations and proceed to court). Such input can sometimes help parties resolve an impasse. The downside, however, is that it may short-circuit the process of creative deal-making.
How much does mediation cost? Most mediators (including those at BLC) charge on an hourly basis for their time. In the Boston area, the cost of mediation services ranges from approximately $100/hour to $800/hour. Some mediators charge on a per diem basis. At BLC, the range of fees for mediation services is $400/hour – $675/hour, depending on who the mediator is. Click here for more specific BLC rates. For low-cost community mediation services, click here and see the directory.
An administrative fee of $200 per party will be charged for all family mediation and arbitration cases and a fee of $250 per party will be charged for all commercial mediations and arbitration cases. For arbitrations that go beyond two calendar days of hearing, there is an additional administration fee of $50/day per party.
If I choose mediation, will my rights be protected and, if so, how? Mediators do not provide legal advice, and therefore in most mediations, the mediator will encourage the parties to seek the advice of counsel before signing any agreement. In business, employment, and non-family mediations, attorneys generally participate in the mediation along with their clients. The mediator protects the parties in mediation by taking responsibility for the fairness of the process. In divorce mediation, the parties usually attend mediation sessions without counsel, but if one party seems to be taking unfair advantage of the other in the mediation, the mediator has the right to withdraw from the mediation, or ask that the parties participate with counsel.
What is arbitration? Arbitration is a form of adjudication which is generally private and less formal than litigation in court. The decision maker is usually an individual or panel of three individuals selected by the parties or a neutral agency. In some cases, involving three arbitrators, each party selects an arbitrator and those two arbitrators select the third jointly. In most arbitrations, the parties agree that the result is binding and therefore enforceable, if necessary, in court.
How does arbitration differ from other dispute resolution processes? In mediation, the mediator has no power to render a decision – it is simply facilitated negotiation. In case evaluation, the opinion of the case evaluator is non-binding and therefore will result in a resolution of the matter only if both parties find the opinion persuasive.
How much does arbitration cost? Arbitration is generally less expensive than litigation, because the pre-arbitration discovery process is more streamlined, the proceedings are less formal, and there is no jury. Much of the advocacy can be done through briefs. On the other hand, there is additional expense because the arbitrator(s) must be paid, and it is possible, in a poorly managed arbitration, for the case to spin out of control. Experienced arbitrators can manage the process in a cost-effective manner, and in an appropriate case, encourage the parties to enter into an agreement limiting to a certain number of days the total amount of time for the arbitration.
An administrative fee of $200 per party will be charged for all family mediation and arbitration cases and a fee of $250 per party will be charged for all commercial mediation and arbitration cases. For arbitrations that go beyond two calendar days of hearing, there is an additional administration fee of $50/day per party.
If I choose arbitration, will my rights be protected and, if so, how? In an arbitration, each party has counsel advocating on his/her/its behalf, just as in court. The arbitrators are insulated from improper influence by rules prohibiting ex parte contact and procedural guidelines (such as those in the Massachusetts Uniform Arbitration Act) which assure a level playing field.
What kinds of disputes are best suited for mediation, arbitration, and collaborative law? There is no easy answer to this question – matching dispute resolution processes to cases is more art than science. Among the factors that may be relevant are: (a) whether there are relationships that need to be preserved; (b) whether the parties are able to negotiate effectively; (c) to what extent do the parties need legal advice and representation in their negotiation; (d) whether the parties need a binding decision from a third party; and (e) how quickly do the parties need to resolve the matter.
Mediation provides a more expedient way to get to the negotiating table and reach agreement if the parties can negotiate effectively. Mediation also provides an opportunity for direct, face-to-face discussion of relationship issues.
Collaborative law can be an improvement over mediation in situations where the parties are uncomfortable negotiating directly, even with the help of the mediator. The collaborative law process may, in some circumstances, take longer, but the disqualification-of-counsel provisions in the collaborative law process agreement operate as a buffer against litigation if the negotiations are difficult. Collaborative law is also well-suited to preserving relationships.
Arbitration provides a faster and more cost-effective method than litigation, if what the parties want is a final and binding resolution of their dispute. The adversarial nature of the arbitration process can be hard on relationships, but it is conducted in private (and therefore the parties’ allegations are generally not presented in a public courtroom.) Although arbitration can be conducted without counsel, such cases are rare; in most situations the parties want and need legal representation to protect their rights.
How do the costs of these processes compare? Business and employment mediations usually take one or two days; the most typical arrangement is scheduling a one-day mediation, with a phone conference or brief meeting thereafter if the case is not resolved during the first mediation session. Mediators are usually paid on a per-hour basis; at BLC, the cost of mediation ranges from $400/hour to $675/hour. In divorce mediation, there are usually several sessions of 2-3 hours spaced apart by 1-2 weeks, plus the cost of drafting a divorce agreement, which is also billed on an hourly basis.
Arbitration is also billed on an hourly basis, but the number of hours needed for arbitration can vary substantially. A simple construction, business, or employment dispute may be arbitrated in 1-3 days, whereas a highly complex business partnership breakup might require a week or more of arbitration.
In all commercial cases, we charge a one time, $250 administration fee per party. For family mediations and arbitrations, we charge a one time, $200 administration fee per party.
Collaborative law costs are similar to mediation costs in certain respects. In a divorce case, the collaborative law model will usually involve a series of 3 – 5 meetings, if there is a full array of child-related and financial issues to address. In a collaborative law business case, one or two meetings might suffice. Collaborative law attorneys bill their time on an hourly basis, both for meetings and time spent on preparation and client consultation.
What if the parties in a dispute want to save money by hiring just one lawyer to advise both sides? Ethical rules prohibit lawyers from providing legal advice to parties on opposite sides of a dispute. When we are serving as counsel to a party that has a dispute with someone else, we have a duty to give our undivided loyalty to our client and not to the other party. When we mediate or arbitrate, we are not providing legal advice or representation to either side, but instead acting in an impartial capacity, hired by both parties, to resolve the matter.
If you have a question that’s not listed here, please contact us.