From my experience, even the simplest divorce can easily turn into an extremely contentious proceeding. This can sometimes turn a couple who were once lovers into the bitterest of enemies. This may be acceptable in some divorce cases, but in many cases the former
couple's children are the ones who bear the burnt of the hostility. This is certainly not in the children's best interest. As a result of this, several lawyers have created a collaborative process with different rules than the traditional adversarial process. This is a new area of Law and the below article goes through several of its aspects. If this type of process becomes more popular it can potentially take some of the acrimony out of divorce proceedings.
New York Law Journal
Law and Children
The Uniform Collaborative Law Act: a Milestone
By Andrew Schepard
Groups of divorce lawyers have developed collaborative law--a relatively new ADR process with many of the same peacemaking benefits for children of divorce and separation as mediation. While efforts are underway to expand collaborative law into other areas, it has its deepest roots in divorce and family law. Thousands of lawyers have been trained in collaborative law, and many parents have participated in it. Initial empirical evaluations of collaborative law indicate high levels of parent satisfaction. Many experienced divorce lawyers report that collaborative law increases their satisfaction with their practice because of the constructive role they play in helping parents reorganize their relationships with their children.
This column briefly describes what collaborative law is. It then focuses on the Uniform Collaborative Law Act (UCLA) developed by the Uniform Law Commission (ULC) (formerly the National Conference of Commissioners on Uniform State Laws). The UCLA is a milestone in the development of collaborative law, as it is a uniform statutory framework for its operation. Readers interested in more detail, including citations, about collaborative law and the UCLA can consult the current draft of the act (which has an extensive Preface and Commentary) and can be found at the Web site of the ULC, or at the Web site of Hofstra Law School. This author is the Reporter for the Drafting Committee on the act.
The Process and Features
The goal of collaborative law is to encourage parties to engage in "problem-solving" rather than "positional" negotiations. As described by Roger Fisher, William Ury and Bruce Patton in their famous book, "Getting to Yes," problem-solving negotiators focus on finding creative solutions to conflict that maximize benefits for all sides, while positional negotiators focus on arguing positions to "win" concessions. Collaborative lawyers emphasize that no threats of litigation should be made during a collaborative law process and the need to maintain respectful dialogue.
Parties in collaborative law disclose information voluntarily, without formal discovery requests. Parties also have the option to participate extensively in the planning for and conduct of negotiation sessions with their collaborative lawyers. Many models of collaborative law engage mental health and financial professionals in advisory and neutral roles--e.g., divorce coach, appraiser, and child's representative. Collaborative law negotiations are confidential.
Lawyers can and do, of course, engage in problem-solving negotiations and encourage active client involvement without formally labeling the process collaborative law. The distinctive feature of collaborative law is, however, the enforcement mechanism that parties create to ensure that problem-solving negotiations actually occur. Parties and collaborative lawyers agree in advance in a written agreement ("collaborative law participation agreement") that a collaborative lawyer represents a party only for the purpose of negotiations and will not represent the party in court. The parties also agree that their lawyers are disqualified from further representing parties if the collaborative law process ends without agreement ("disqualification requirement"). Finally, parties agree they mutually have the right to terminate collaborative law at any time without giving a reason.
A collaborative law participation agreement is thus a strong mutual commitment for problem solving negotiations. It is also a method of addressing the age old dilemma for negotiators of deciding whether to cooperate or compete in a situation where each side does not know the other's intentions and "where the pursuit of self interest by each leads to a poor outcome for all"--the famous "prisoner's dilemma" of game theory. In collaborative law "[e]ach side knows at the start that the other has similarly tied its own hands by making litigation expensive. By hiring two Collaborative Law practitioners, the parties send a powerful signal to each other that they truly intend to work together to resolve their differences amicably through
settlement."
There are risks for parents who choose collaborative law---especially of incurring the economic and emotional cost of employing a new lawyer. But there are also benefits for them and their children. "[I]t would be a mistake to focus solely on the risk that [collaborative law] poses for clients. Other things being equal, spouses who choose court-based divorce presumably run the greater risk of harming themselves and their children in bitter litigation or rancorous negotiations. [Collaborative law] clients presumably bind themselves by a mutual commitment to good faith negotiations in hopes of reducing the risk that they will cause such harm, just as Ulysses had his crew tie him to the mast so he would not succumb to the Sirens' call and have his ship founder."
Numerous bar association ethics committees (including the American Bar Association's) have generally validated collaborative law as a permissible limited purpose representation. They have emphasized that parents can decide for themselves whether the benefits of collaborative law outweigh the risks if they do so with informed consent.
Collaborative law has thus far largely been practiced by lawyers in groups which draft their own model participation agreements, set their own membership qualifications and can include mental health and financial professionals. Collaborative practitioners have established their own professional association, the International Academy of Collaborative Professionals (IACP) and have worked diligently to articulate their own code of ethics within the broad framework created by the rules of professional responsibility.
The Uniform Law Commission
The ULC has worked for uniformity of state laws since 1892. It consists of more than 300 lawyer commissioners from every state. It has drafted more than 200 uniform laws on numerous subjects and in various fields of law where uniformity is desirable and practicable. The signature product of the ULC, the Uniform Commercial Code, is a prime example of how its work has simplified the legal life of businesses and individuals by providing rules and procedures that are consistent from state to state.
The ULC has taken the same approach to alternative dispute resolution and family law, developing, for example, the Uniform Mediation Act, the Uniform Arbitration Act and the Uniform Child Custody Jurisdiction and Enforcement Act.
The process of drafting a uniform act is transparent, and enlists expertise and key stakeholders. The ULC decides on a project, establishes a drafting committee of commissioners, and designates a reporter (usually a law professor), who produces multiple drafts for review in open meetings. Drafts are posted on the ULC Web site and observers from interested groups participate extensively in the drafting committee deliberations. Drafts are also reviewed by the ULC Style Committee for style and consistency. The entire ULC reviews the draft statute line by line twice. If approved, the act is then transmitted to the ABA House of Delegates for approval and then is transmitted to the states for adoption.
For the past two years a ULC Drafting Committee has been developing an act to codify collaborative law procedures into a uniform act. Peter K.Munson, the committee's chair, has wide experience with collaborative law and family law, and Harry L. Tindall, its vice chair, is a well known collaborative lawyer, active in many law reform efforts. The Drafting Committee includes several commissioners from the committee that drafted the Uniform Mediation Act. The committee has been advised by representatives of various ABA sections and the ABA Commission on Domestic Violence. Many collaborative lawyers from around the country served as observers of the drafting process and contributed their expertise to the Drafting Committee's deliberations.
The reasons that the ULC decided to undertake the drafting of the UCLA are similar to the reasons it undertakes any project--to promote the development of uniform law in an important and emerging area. A number of states have enacted statutes of varying length and complexity which recognize collaborative law, and a number of courts have taken similar action through the enactment of court rules. Participation agreements are crossing state lines as individuals and businesses utilize the collaborative process. As the use of collaborative law grows, the UCLA will provide consistency from state to state regarding enforceability of collaborative law agreements, confidentiality of communications in the process, a stay of court proceedings and the privilege against disclosure should the process not result in settlement.
The current draft of the UCLA will be submitted for final reading by the entire ULC at its Annual Meeting in July 2009. If adapted, the act will be then presented to the ABA House of Delegates in February 2010, and will be available for consideration by state legislatures during the 2010 legislative session.
Provisions of the Act
The UCLA aims to standardize the most important features of collaborative law participation agreements both to protect consumers and to facilitate party entry into collaborative law. It mandates essential elements of a process of disclosure and discussion between prospective collaborative lawyers and prospective parties to promote entry into collaborative law with informed consent.
The act also makes collaborative law's key features--the disqualification provision and voluntary disclosure of information--mandated provisions of participation agreements. Finally, the act creates an evidentiary privilege for collaborative law communications to facilitate candid discussions during the collaborative law process.
The key provisions of the UCLA are:
- Minimum requirements for collaborative law participation agreements, including written agreements, description of the matter submitted to a collaborative law process (a term not limited by subject), and designation of collaborative lawyers (section 4);
- A prohibition on tribunals from ordering a person to participate in collaborative law over that person's objection, thus insuring that party participation in a collaborative law process is entirely voluntary (section 4 (c));
- A stay of proceedings when parties to a pending proceeding sign a participation agreement, while allowing the tribunal to ask for periodic status reports (section 6);
- An exception to the stay for emergency orders to protect health, safety, welfare or interests of a party, a family member or a dependent (section 7);
- A definition of the scope of the disqualification requirement to both the matter specified in the collaborative law participation agreement ("collaborative matter") and to matters "related to the collaborative matter"--those involving the "same transaction or occurrence, nucleus of operative fact, claim, issue or dispute as a collaborative matter" (section 9 and 2(13));
- Extension of the disqualification requirement to lawyers in a law firm with which the collaborative lawyer is associated ("imputed disqualification") (section 9(b));
- An exception to imputed disqualification for legal aid offices, law school clinics and the like if the associated collaborative lawyer represents very low income parties for no fee, the parties agree to the exception in advance, and the collaborative lawyer is screened from further participation in the matter or related matters (section 10);
- A similar exception to imputed disqualification for collaborative lawyers for government agencies (section 11);
- A codification of the requirement that parties voluntarily disclose relevant information during the collaborative law process without formal discovery requests and to update information previously disclosed that has materially changed (section 12);
- An acknowledgment that standards of professional responsibility and child abuse reporting for lawyers and other professionals are not changed by their participation in a collaborative law process (section 13);
- A requirement that lawyers must disclose and discuss the material risks and benefits of collaborative law as compared to other dispute resolution processes such as litigation, mediation and arbitration as part of the process of informed consent to entry into collaborative law (section 14(a));
- An obligation on collaborative lawyers to screen clients for domestic violence (defined as a "coercive and violent relationship") and, if present, to participate in a collaborative law process only if the victim consents and the lawyer is reasonably confident that the victim will be safe (section 14(b));
- A privilege for collaborative law communications which are sought to be introduced into evidence before a tribunal (section 16);
- Provisions for waiver of and limited exceptions to the evidentiary privilege based on important countervailing public policies (such as the protection of bodily integrity and crime prevention) identical to those recognized for mediation communications in the Uniform Mediation Act (sections 16, 17, 18);
The Lawyer as Peacemaker
In this bicentennial year of his birth, it is helpful to remember Abraham Lincoln's advice in 1850 to young lawyers:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser--in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.
The UCLA should encourage more lawyers to fulfill Lincoln's vision of the lawyer as peacemaker through collaborative law. It should also encourage parents to consider whether peacemaker lawyers may have significant benefits for them and, most importantly, their
children who are often the "real loser[s]" in litigation.
Andrew Schepard is professor of Law at Hofstra University School of Law and director of the Center for Children, Families and the Law. He is Reporter for the Drafting Committee on the Uniform Collaborative Law Act of the Uniform Law Commission.
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