Originating in Minnesota nearly 20 years ago, collaborative law has grown from its origins in family law practice and taken root in other professions as well as other areas of law practice throughout the world. A uniform act now before the Minnesota Legislature would establish statutory guidelines for the collaborative process.
Over the past two decades, a new approach to dispute resolution has experienced phenomenal growth in the United States, Europe, Canada and Australia.1 Collaborative law is a voluntary process, distinct from litigation, in which the parties are represented by their own legal advocates. The key difference between collaborative law and alternative forms of dispute resolution is that both parties and their attorneys agree in writing at the onset of the process to settle their differences without judicial intervention. By agreeing to avoid recourse to the courts (and the ongoing threat of court proceedings), the parties are committed to a mutual-interest-based agreement without the costs, delays, and stress of litigation.
Origins & Growth
The concept of collaborative law took form in Minnesota 20 years ago in the mind of Stuart Webb, a family law attorney. Webb started with the premise that there must be a better way to resolve marriage dissolutions while preserving parental relationships. By thinking “outside the box,” Webb envisioned an approach that would emphasize the parties’ mutual interests and avoid escalation of their requirements of one another.2 By agreeing to settle their differences outside the litigation model, the parties would also gain an opportunity to think outside the box. They would become more active in the dispute resolution process and, thus, more invested in the outcome. The parties’ incentive to reach agreement would be reinforced by the terms of their engagement with their attorneys: As collaborative law is realized in practice, parties have a major incentive to reach agreement in that the written agreement requires the collaborative attorneys to withdraw from representation if the process is unsuccessful. In that case, new legal counsel would need to be retained by both parties.
Over the years, Stuart Webb enlisted other family law attorneys to implement his idea. After all, it takes at least two lawyers to practice collaboratively. Incredibly, there are now over 22,000 trained attorneys worldwide who are practicing the collaborative model in family law as well as probate, business, and employment law.3 Collaborative law is a process that is especially advantageous in disputes involving family, business, or other ongoing relationships that might be damaged in litigation and can be preserved.
As knowledge of collaborative law has spread, professionals in other fields have embraced the collaborative model. Drawing on input and experience from mental health professionals and financial specialists, the Collaborative Law Institute, the national umbrella organization, has developed training parameters and practice protocols in an effort to standardize procedures.4 Simultaneously, the International Academy of Collaborative Professionals has developed a global networking organization that promotes the collaborative approach and consistent professional standards. The Academy held its Tenth Anniversary Convention in Minneapolis in October 2009, drawing over 600 practitioners from a wide variety of professions in the United States, Europe, Canada and Australia.
The Uniform Act
Because of the growth and popularity of collaborative law among both practitioners and clients, the need for uniform standards to enhance the process and protect clients became apparent. Thus, the Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws), chaired by Minnesota attorney Robert Stein, drafted and last July unanimously approved a proposed uniform act. This statutory model is titled the Uniform Collaborative Law Act (UCLA). The American Bar Association Section of Dispute Resolution has endorsed the act and it is scheduled to be presented to the ABA House of Delegates at their meeting this month. The act is also under consideration by the MSBA and its sections and committees; in December the MSBA Assembly recommended that the legislature defer action pending further review. Most importantly for Minnesota attorneys, the UCLA will be on the agenda during the current legislative session.
The UCLA borrows heavily from the Uniform Mediation Act and the Uniform Arbitration Act. For example, provisions for confidentiality and privilege are similar in the UCLA.5
As noted above, the most distinguishing feature of collaborative law is the voluntary written participation agreement, the form of which is prescribed by the act. Nothing limits the process to family law. The UCLA requires that certain minimum standards of communication and disclosure are met in order to make sure each party gives informed consent.6 Once an agreement is reached, then (and only then) is the agreement presented to the court for approval.
Key provisions of the UCLA include:
1. A written agreement to participate in the collaborative process, including a description of the issue to be resolved and identification of the collaborative attorneys retained by the parties7;
2. Full and accurate exchange of information8;
3. Suspension of court intervention (in the event pleadings have already been filed) while the parties are participating in the collaborative process9;
4. Withdrawal of legal counsel if the collaborative procedure is not successful in settling the dispute10;
5. Disqualification of subsequent legal counsel who are associated with the collaborative lawyer or their law firm (with certain exceptions)11; and
6. Other collaborative provisions that are agreed upon by the parties.12
Flexible, Creative Process
The requirement that both parties’ attorneys withdraw in the event of an insurmountable impasse is a positive feature of collaborative law. It provides an incentive for the parties to work through any stalemate since the alternative is to retain new trial attorneys. This does not require that the parties return to square one if they reach impasse. They retain the benefit of progress made in winnowing issues and in discovery. Of course, collaborative attorneys are ethically required to facilitate the transition to subsequent counsel upon withdrawal.13 Furthermore, termination of the process is very rare because the parties and their attorneys are invested in the process and in the self-determination of the outcome. Even in cases where specific issues may present road blocks, parties can agree to submit them to a limited mediation session.
In other words, the process provides a great deal of flexibility and creativity. The parties can utilize experts who have been trained and qualified in the collaborative model to assist them and their families. These include mental health professionals who can provide support to the parties as well as child specialists for their children. Financial planners can assist the parties with budget, asset, and support/maintenance options. Even with the addition of other collaborative team members, the process is cost-effective as it gives responsibility to experts who can address these nonlegal issues without the additional expense of having the attorneys assume these roles.
Not Always Appropriate
Despite the growth of the collaborative model in other areas of law, it is not appropriate for all cases. Besides the obvious areas (e.g., criminal, immigration and some administrative proceedings), there are cases in which a disparity between the parties may preclude the collaborative approach. For example, in cases involving juvenile parties, guardians ad litem, mentally ill/developmentally disabled persons, or victims of sexual/physical abuse the collaborative model may not be appropriate. In addition, it should be noted that the laws requiring mandatory reporting of abuse of children and vulnerable adults remain applicable.14
In the 20 years since Stuart Webb first shared his lucid and visionary search for a better way, collaborative practice has experienced extraordinary success. Passage of the UCLA by the Minnesota Legislature would further the growth of the collaborative model and standardize the procedures for clients and practitioners alike.
1See, The Collaborative Law
Institute of Minnesota at http://www.collaborativelaw.org; see also, David A. Hoffman, “Collaborative Law: A Practitioner’s
Perspective,” 12 Dispute Resolution Magazine (Fall 2005), p. 25.
2 Stuart Webb, “Collaborative Law: An Alternative for Attorneys
Suffering ‘Family Law Burnout,’” 18 Matrimonial Strategist (July 2000), p. 7.
3 See, e.g., Christopher M. Fairman, “A Proposed Model Rule for
Collaborative Law,” 21 Ohio State Journal on Dispute Resolution No. 1 (2005), p. 73, at 83 n.65; see also, International Association of
Collaborative Professionals at http://www.collaborativepractice.com.
4 See, The Collaborative Law
Institute of Minnesota at http://www.collaborativelaw.org.
5 Uniform Collaborative Law Act (UCLA) §§16, 17, 18 and 19.
6 UCLA §4.
8 UCLA §12.
9 UCLA §6.
10 UCLA §§ 5, 9.
11 UCLA §§9, 10 and 11.
12 UCLA §4.
13 Minn. R. Prof. Conduct §1.16(d).
14 UCLA §13.