Goodbye Homo Economicus: Cognitive Dissonance, Brain Science, and Highly Effective Collaborative Practice

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Collaborative Law (“CL”) began in 1990 as one person’s inspiration (“What if I just told my clients and colleagues I will serve as divorce counsel only so long as the matter remains out of court?”), and grew in only two decades to a worldwide movement of more than 20,000 family lawyers committed to offering clients a better alternative to the emotional and financial carnage that unfolds daily in divorce court. Recently, CL has been vetted and found to be an ethical and significant mode of practice by two important institutions in the American legal system: the American Bar Association, whose ethics committee confirmed in a 2007 opinion that collaborative legal practice falls well within the scope of the Model Rules, and the National Conference of Commissioners on Uniform State Laws, which in July 2009 promulgated the Uniform Collaborative Law Act (“UCLA”).

That recognition by our generally conservative profession was earned after a surprisingly short time, but the evolution of collaborative practice (“CP”) in the field has moved even faster. This Article looks at the growing edge of CP and considers where it may be moving next. Its thesis is that by its very nature, CP—uniquely among legal dispute resolution modes—gives rise to emergent learning systems that push lawyers into acquiring more effective collaborative conflict resolution skills. The experience of CP, unexpectedly, impacts the lawyers fully as much as it impacts their clients. In CP, lawyers serious about the idealistic goals that typically draw them into this work find that they can neither continue to regard their clients as isolated bundles of rights detached from feelings, relationships, and moral values, nor continue to regard themselves as individual professional actors (also detached from feelings, relationships, and moral values) who function as essentially unchanging constants within a closed dispute resolution system orbiting around the courts.

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