Collaborative Law

An Overview of Tennessee's Burgeoning Alternative Dispute Resolution Process:

A. History

Collaborative Law, an alternative dispute resolution process, was started in the 1980s by Stuart G. Webb, a family and divorce attorney in Minnesota.[1] Collaborative Law is defined as a voluntary, nonadversarial, problem-solving, interdisciplinary approach to resolving disputes.[2] The hallmark of Collaborative Law that distinguishes
this process from other alternative dispute resolution processes is an agreement that the parties will not litigate to resolve their dispute.

According to the International Academy of Collaborative Professionals (IACP), an umbrella organization for Collaborative Law professionals, as of 2009, approximately 22,000 lawyers worldwide have been trained in the Collaborative Law process.[3] While it is a relatively new process in Tennessee, other states and countries have been using Collaborative Law for years.

The Uniform Collaborative Law Act (U.C.L.A.), which establishes uniform law on the Collaborative Law process, has been adopted in Utah.[4] U.C.L.A. has also been introduced in Oklahoma, Ohio, District of Columbia   and Tennessee. In 2010, Rep. Mike Stewart and Sen. Doug Overbey introduced HB3648/SB3531 to Tennessee's General Assembly in an attempt to enact the U.C.L.A.[5] The bill, however, did not pass.[6] Therefore, at this point, Tennessee has not adopted the U.C.L.A.

In this article, the Collaborative Law process will be discussed in the context of family and divorce since it has been greatly accepted in this area of law in other jurisdictions.[7] However, this process can also be used in other legal fields in which privacy and ongoing relationships are important such as probate, health care, construction and employment law.[8]

B. The Players

Both parties are represented by their respective attorneys who have been trained in the Collaborative Law process.[9] It is important to note that each party's attorney is his or her advocate even though the parties and their attorneys will work collaboratively together to reach settlement.[10]

To further aid settlement, nonlegal, allied professionals can also be present in this process.[11] These specialists include, but are not limited to certified public accountants, business evaluators, financial advisors, therapists, mental health coaches, social workers and child specialists.[12] These professionals work in interdisciplinary teams to ensure that the parties' legal as well as financial and emotional needs are met.[13]

C. The Process

1. General Overview
The fundamental principle of the Collaborative Law process is that the parties agree not to litigate to settle their dispute.[14] The goal is to reach a win-win solution where both parties' needs are met.[15] If, at any point, one of the parties changes his or her mind and wants to go to court, it is required that both attorneys and all of the allied professionals withdraw.[16] This requirement is addressed in the "disqualification" provision in the Collaborative Law Participation Agreement.[17] At that point, the parties will need to hire new counsel and professionals if needed. This unique Collaborative Law requirement gives the parties an additional incentive to work toward an agreement and not to give up when communication breaks down or settlement discussions stall.

2. Beginning
In regard to informed consent, pursuant to Tennessee Rules of Professional Conduct Rule 1.4(b), a family law attorney should provide all options, one of which may be Collaborative Law, to the client to settle his or her divorce case.[18]

If the parties choose Collaborative Law, the process begins with the Collaborative Law Participation Agreement in which both parties agree to make good faith efforts to settle their divorce without litigation.[19] Both parties and their respective attorneys sign this agreement. Under the U.C.L.A., a Collaborative Law Participation Agreement must:

(1) be in a record;
(2) be signed by the parties;
(3) state the parties' intention to resolve a matter through a collaborative law process under this [act];
(4) describe the nature and scope of the matter;
(5) identify the collaborative lawyer who represents each party in the collaborative law process; and
(6) contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative law process.[20]

In addition to these requirements, parties may agree to include additional provisions not inconsistent with this [act].

3. Middle
Next, the parties with their respective attorneys have separate meetings and, later, four-way meetings over a period of time to discuss, negotiate, and try to settle various issues including, but not limited to the division of assets and debts, and the custody, parenting time and support of children, if applicable.[21] The allied professionals also join these meetings if their assistance is needed. During these meetings, an environment of respect and honesty is fostered to allow for open communication. Since the parties agree to make full disclosures, formal discovery is not conducted unless otherwise agreed.[22] Sworn statements of assets, liabilities and income can be exchanged if requested.

Under U.C.L.A., in regard to confidentiality, Collaborative Law communication is confidential to the extent agreed upon by the parties in the signed record or as provided by law.[23] The intention is for Collaborative Law communication to be privileged, not subject to discovery, and not admissible in evidence.[24] However, this privilege has limitations and can be waived.[25]

4. End
If the process is successful, it concludes with the execution of settlement documents such as a Marital Dissolution Agreement (MDA) and if applicable, a Permanent Parenting Plan with accompanying Child Support Worksheet based on the Tennessee Child Support Guidelines.[26] There are additional ways in which the Collaborative Law process may terminate including, but not limited to, the unilateral termination of the process by one party and/or the discharge or withdrawal of one or more of the Collaborative Law attorneys.[27]

D. Advantages and Disadvantages

1. Advantages
Similar to the other alternative dispute resolution processes, Collaborative Law is designed to be a less adversarial process than litigation. As a result, it may also be less expensive and time-consuming. The parties also have more control over their case as opposed to litigated cases in which a judge or jury determines the outcome. Furthermore, since the parties are in control, this permits greater problem-solving, which may lead to unconventional solutions.

Another advantage that is unique to Collaborative Law is the greater involvement of nonlegal, allied professionals. This approach comports well with the Bounds of Advocacy, the American Academy of Matrimonial Lawyers' (AAML) supplementary code of standards of professional responsibility, which states: "[a]s a counselor, a problem-solving lawyer encourages problem solving. ... The client's best interests include the well being of children, family peace, and economic stability."[28] It further states that a divorce lawyer should "consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children."[29] If children are involved, the parties will need to maintain an ongoing relationship after the divorce to co-parent. With the help of the allied professionals in the Collaborative Law process, the parties may be able to learn to communicate with each other in a constructive manner.

2. Disadvantages
Collaborative Law is not a process for every case. Similar to mediation, Collaborative Law may not be appropriate for cases involving violence. The U.C.L.A. requires Collaborative Law attorneys to inquire and continuously assess whether there is a history of coercive or violent behavior between the parties.[30] Furthermore, Collaborative Law may not be appropriate for cases in which the issues are expected to be vehemently contested such that litigation and/or another alternative dispute resolution process may be preferable.

Due to the similarities, Collaborative Law has been compared to mediation, an established process that tends to yield successful results.[31] However, there are differences that may make one process preferable over the other. First, unlike mediation, there is not a neutral third party present to assist the parties in Collaborative Law.[32] Therefore, if the parties reach an impasse in Collaborative Law, they will not benefit from the observations of a third, impartial person. Second, unlike mediation, the parties do not have the option to attend Collaborative Law meetings by themselves.[33] It is important to understand that mediation, arbitration and other nonjudicial alternative dispute resolution processes may be employed in the Collaborative Law process if an impasse is reached.

E. Ethical Considerations

Nine states' bar associations have issued Ethical Opinions on the Collaborative Law process.[34] All but one have been positive.[35] The Colorado Bar Association's Ethical Opinion "permits clients, but not lawyers, to sign Collaborative Law agreements, and cites the issue of informed consent as the primary concern."[36] The American Bar Association (ABA) disagreed with the Colorado Bar Association's Ethical Opinion by stating, "clients can, in fact, give informed consent, and therefore lawyers can participate in the Collaborative Law process."[37] It should be noted, however, that the ABA has not yet approved U.C.L.A.

F. Conclusion

Collaborative Law is a burgeoning alternative dispute resolution process in Tennessee that will provide one more option for parties to resolve their disputes. If you would like to get involved, there are Collaborative Law groups forming throughout the State. The Middle Tennessee Collaborative Alliance (MTCA), based in Nashville, is currently in the formation stage and aims to be established by January, 2011.[38] In Memphis, the Memphis Collaborative Alliance has been formed.[39] For further information regarding Collaborative Law in Tennessee, please contact the Collaborative Law subcommittee of the Tennessee Bar Association's Alternative Dispute Resolution section.[40]

Notes

  1. The International Academy of Collaborative Professionals, "What Is Collaborative Practice?" http://www.collaborativepractice.com/ _T.asp?T=WhatIs&M=1&MS=2.
  2. Id.
  3. National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act (Nov. 17, 2009), http://meetings.abanet.org/webupload/commupload/ DR035000/sitesofinterest_files/FinalVersionUCLA.pdf
  4. National Conference of Commissioners on Uniform State Laws (NCCUSL), also known as the Uniform Law Commission (ULC), drafted the Uniform Collaborative Law Act (UCLA) in July, 2009 to provide a comprehensive statutory framework for the Collaborative Law process.
  5. HB3628, 106th Gen. Asse., Reg. Sess. (TN. 2010).
  6. Id.
  7. Id.
  8. The International Academy of Collaborative Professionals, "What Are These New Terms: Collaborative Law, Collaborative Practice, The Collaborative Process, and Collaborative Divorce?" http://www.collaborativepractice.com/_T.asp?T=FAQs&FAQ=1.
  9. U.C.L.A.  § 2; National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act (November 17, 2009), http://meetings.abanet.org/webupload/ commupload/DR035000/sitesofinterest_files/FinalVersionUCLA.pdf.
  10. Id.
  11. The International Academy of Collaborative Professionals, "What Is a Collaborative Team?" http://www.collaborativepractice.com/ _T.asp?T=FAQs&FAQ=3.
  12. Id.
  13. Id.
  14. National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act (Nov. 17, 2009), http://meetings.abanet.org/webupload/commupload/ DR035000/sitesofinterest_files/FinalVersionUCLA.pdf
  15. Id.
  16. Id.
  17. Id.
  18. U.C.L.A.  § 14.
  19. National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act (November 17, 2009), http://meetings.abanet.org/webupload/commupload/ DR035000/sitesofinterest_files/FinalVersionUCLA.pdf
  20. U.C.L.A.  § 4.
  21. The International Academy of Collaborative Professionals, "How Does Collaborative Practice Work Step by Step?" http://www.collaborativepractice.com/_T.asp?T=FAQs&FAQ=5
  22. U.C.L.A  § 12.
  23. U.C.L.A.  § 16.
  24. Id. at  § 17.
  25. Id. at  § § 18, 19.
  26. Id. at  § 5(c)(1), (2).
  27. U.C.L.A.  § 5(c)-(g).
  28. American Academy of Matrimonial Lawyers, "Bounds of Advocacy: Children," http://www.aaml.org/go/library/publications/ bounds-of-advocacy/6-children/.
  29. Id.
  30. U.C.L.A.  § 15.
  31. National Conference of Commissioners on Uniform State Laws, Uniform Collaborative Law Act (November 17, 2009), http://meetings.abanet.org/webupload/commupload/ DR035000/sitesofinterest_files/FinalVersionUCLA.pdf.
  32. Id.
  33. Id.
  34. American Bar Association, Uniform Collaborative Law Act (September 27, 2009), http://meetings.abanet.org/webupload/ commupload/DR035000/sitesofinterest_files/ DRSectionMemoreUCLAtoSectionsandDe_.pdf
  35. Id.
  36. Id.
  37. Id.
  38. E-mail from Ben Papa, President/Chair of the Middle Tennessee Collaborative Alliance (July 20, 2010, 8:56 a.m. CDT) (on file with author).
  39. http://www.memphiscollaborativealliance.com/index.html.
  40. For more information, contact Linda Warren Seely at lseely@malsi.org.

Marlene Eskind Moses MARLENE ESKIND MOSES is the principal and manager of Moses & Townsend PLLC, a family and divorce law firm in Nashville. She is the current president of the American Academy of Matrimonial Lawyers and the Tennessee Supreme Court Historical Society. She has held prior presidencies with the Tennessee Board of Law Examiners and the Lawyers Association for Women. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers and is the current vice president for the National Board of Legal Specialty Certification. The Tennessee Commission on Continuing Legal Education & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist. Jessica J. Uitto contributed to this article.

Co-author JESSICA J. UITTO is an associate at Moses & Townsend PLLC, a family and divorce law firm in Nashville. She also does pro bono work for the family division of the Legal Aid Society in Nashville, and is a member of the Nashville Coalition Against Domestic Violence. Uitto graduated from the University of Pennsylvania with a B.A. in Women’s Studies and a minor in Psychology. In 2008, she graduated from Pepperdine University School of Law with a law degree and a Certificate of Dispute Resolution from the Straus Institute. She is licensed to practice law in Tennessee, Pennsylvania and New Jersey.