Collaborative law

Collaborative law, also known as collaborative practice, divorce or family law,[1] is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family-related litigation.

The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.[2]

Collaborative law processes also have the added benefit of being cost efficient for the involved parties. As the necessary tasks in the collaborative model are assigned to specialist professionals without duplication of effort, cost savings are realized.[3] These cost efficiencies, in addition to other potential benefits, have led parties in other contexts to explore the use of collaborative law to resolve disputes, including M&A transactions.[4]

History

The history of the Collaborative Law process is disputed, except that it originated in the Midwestern United States. Although some credit Minnesota lawyer, Stu Webb alone, New Jersey divorce lawyer, Curtis J. Romanowski first introduced the concept in 1988 as "Collaborative Dispute Resolution (CDR)." At the time, Romanowski was based in Kansas City, Missouri, and was providing consulting services in Alternate Dispute Resolution to clients throughout the United States. Stu Webb's model of the process that he started calling "Collaborative Law" in 1990 was based upon the use of a "disqualification agreement," where, in the event the collaborative process failed, both attorneys would have to recuse themselves from further case involvement. Webb's approach also involved the retention of joint experts where indicated.

Although the name "Collaborative Law", or "Collaborative Family Law" in its present form, is believed to have originated circa 1988-1990, the ideas in the family law context, appear to have had a clear antecedent in the concept of "Therapeutic Family Law", as put forward by Canadian-born Chicago family lawyer and writer Nester C. Kohut in the 1960s, as set out in his bookTherapeutic Family Law; a complete guide to marital reconciliation and his later Therapeutic Separation Agreements, ideas that attracted favorable comment in several law journal articles. According to his writings, these are methods that he developed and implemented in his own Chicago family law practice.[5]

Romanowski, who had a background including organizational development and trial advocacy, introduced CDR as a team approach to dispute resolution. The approach also included a "recusal pact," at least initially. The application was geared toward labor and domestic relations disputes. Shortly after introducing the model in 1988, he changed his terminology and began calling his concept "Collaborative Law," owing primarily to the confusion the abbreviation "CDR" was causing with "Complimentary Dispute Resolution."

Webb has consistently defended the recusal pact as essential to the Collaborative Law model. Romanowski, on the other hand, rejected the idea of entering into a recusal pact ab initio, thereby signaling his break from what had grown to be the mainstream movement.[6] In 1998, Romanowski introduced "Progressive Divorce(R)," which broke down his model into four incremental phases.[7][8][9][10]

At the heart of the Progressive Divorce(R) model was the rejection of the recusal pact until later in the process, only when settlement is imminent. Another key feature is the sparing of ancillary settlement team personnel until such time as the process stage requires it, if at all, maintaining that entering into a recusal pact and establishing a full-blown settlement team are not to be undertaken lightly, and certainly not committed to in the early stages of the process.[9] It is speculated that Romanowski's name has not been as quickly associated with the founding of Collaborative Law since, although he independently developed the concept at about the same time as Stu Webb, he quickly became a leading critic of the model he originally created, believing it to be cumbersome, deceptively costly and largely academic, if not inherently coercive.[11]

Ever since its inception in 1988, the Collaborative Law movement has spread rapidly to most of the United States, Europe, Canada and Australia.,[12] More than 22,000 lawyers have been trained in Collaborative Law worldwide and more than 1,250 lawyers have completed their training in England and Wales where Collaborative Law was launched in 2003.

The growth of the collaborative process in England and Wales has been encouraged by both the judiciary and the family lawyers organisation, Resolution.[13] In an address to London family lawyers in October 2009, the newly appointed Supreme Court Justice, Lord Kerr of Tonaghmore became the first member of the Supreme Court to publicly endorse Collaborative Law and called for its extension to other areas.[14][15] Previously, in October 2008 the Hon. Mr Justice Coleridge, a High Court Judge of the Family Division, had promised that collaborative agreements would be fast tracked in the High Court of England and Wales.[16] On 29 November 2011, speaking at a reception hosted by the group, Collaborative Family Law,[17] Supreme Court Justice Lord Wilson of Culworth reaffirmed his commitment to Collaborative Law and other Family Dispute Resolution Services whilst criticising the Government's plans to cut legal aid, which he called a "false economy".[18]

Organizations

The primary global collaborative organisation is the International Academy of Collaborative Professionals (IACP), which was founded in the late 1990s by a group of northern California lawyers, psychotherapists, and financial planners. IACP has more than 5,000 members and there are more than 325 practice groups of collaborative practitioners worldwide. The IACP offers an opportunity for education and networking for its members[19] as well provides a resource for research on collaborative divorce.[20]

The American Bar Association ("ABA"), the American Academy of Matrimonial Lawyers, and the International Academy of Matrimonial Lawyers ("IAML")[21] all have Collaborative Law committees.

IACP is an interdisciplinary organisation whose members include lawyers, mental health professionals and financial specialists. National Collaborative organisations have been established in many jurisdictions,including Australia,[22] Austria,[23][24] Canada,[25] the Czech Republic, England, France, Germany, Israel, Hong Kong, Kenya, New Zealand, Northern Ireland,[26] the Republic of Ireland,[27] Scotland,[28] Switzerland, and Uganda, as well as the United States. There is an active on-line collaborative community on Be-fulfilled.org.

In England and Wales, Resolution, has assumed responsibility for the training and accreditation of all collaborative professionals.[29] Almost one-third of all English family lawyers have now completed their collaborative training. In the Republic of Ireland regional collaborative law associations have been set up in cities such as Galway,[30] Cork,[31] and Dublin. In France the AFPDC was created in 2009 to develop and implement collaborative practice in France.[32]

A number of states in the United States have their own individual organizations for collaborative law practitioners, including Collaborative Practice California,[33] the Collaborative Family Law Council of Florida,[34] Collaborative Law Institute of Georgia, the Collaborative Law Institute of Illinois, the Collaborative Law Institute of Minnesota, the Collaborative Law Institute of North Carolina, the Collaborative Law Institute of Texas and the Massachusetts Collaborative Law Council, and the Washington DC Academy of Collaborative Professionals.

Further, most metropolitan areas, such as San Diego,[35] Los Angeles,[36] Tampa,[37] Dallas,[38] Raleigh,[39] and Cleveland,[40] have local collaborative practice groups.

Uniform Collaborative Law Act

In the United States, the Uniform Collaborative Law Act was adopted in 2009 by the Uniform Law Commission, and thereby became available to the individual States to enact as law. In 2010, the Uniform Collaborative Law Act was amended to add several options and renamed the Uniform Collaborative Law Rules and Act. As of June 2013, the Uniform Collaborative Law Act was enacted into law in the states of Utah, Nevada, Texas, Hawaii, Ohio, the District of Columbia, and Washington State, and passed by the Alabama Legislature but awaiting the Governor's signature, and was pending enactment in several additional U.S. states.[41] In Texas, Houston-based family lawyer Harry Tindall has been instrumental in securing passage of the UCLA by the Texas Legislature.[42] On March 24, 2016, Florida Governor Rick Scott signed the Collaborative Law Process Act, Florida's version of the Uniform Collaborative Law Act, which creates a statutory privilege that makes confidential communications had during the collaborative process.[43]

The Overview to the Act provides a comprehensive and reliable history of the emergence of collaborative law in the United States.[44]

In some states, like Florida, which were waiting on the passage of the Uniform Collaborative Law Act, local judges had been teaming up with collaborative professionals and creating local rules and administrative orders endorsing and regulating collaborative law.[45]

Books

References

  1. ↑ See "History" in this article, and Footnote 4.
  2. ↑ "Law Society Gazette Collaborative Pre-Nups". Lawgazette.co.uk. Retrieved 31 December 2011.
  3. ↑ "The Efficiency of the Collaborative Divorce Settlement Process". Axelrod Collaborative Law. Retrieved 24 March 2014.
  4. ↑ Fabian, Christian. "Is Collaborative Law an Option for Resolving M&A Disputes". Transaction Advisors. ISSN 2329-9134.
  5. ↑ Kohut, Nester C., Therapeutic Family Law; a complete guide to marital reconciliation, 2nd ed., Chicago: 1968, Family Law Publications
  6. ↑ John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L. J. 1315, 1328-29
  7. ↑ John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L. J. 1315, 1323
  8. ↑ Curtis J. Romanowski, Progressive Divorce: A 4-Phases Outcome-Driven Approach to Nonlitigated Dispute Resolution, MATRIMONIAL STRATEGIST, July 2002, at 4-5
  9. 1 2 "About Progressive New Jersey Divorce NJ Matrimonial & Family Lawyers ADR Solution". divorcenewjersey.com. Archived from the original on 14 September 2014.
  10. ↑ See also John Lande, Principles of Policymaking about Collaborative Law and Other ADR Processes, 22 OHIO STATE J. ON DISP. RESOL. 619 (2007)).
  11. ↑ http://www.divorcenewjersey.com/collaborative.html Archived 14 September 2014 at the Wayback Machine.
  12. ↑ "Per the International Academy of Collaborative Professionals ("IACP")". Collaborativepractice.com. Retrieved 31 December 2011.
  13. ↑ "Alternatives to Court". Resolution. Retrieved 31 December 2011.
  14. ↑ "Collaborative Law". Spears WMS. Retrieved 31 December 2011.
  15. ↑ Lech Mintowt-Czyz Last updated 31 December 2011 12:36 pm. "The Times – Senior judge says 'collaborative' approach can be extended". The Times. UK. Retrieved 31 December 2011.
  16. ↑ Rozenberg, Joshua (15 October 2008). "Daily Telegraph Fast-track separations for couples who agree". The Daily Telegraph. UK. Retrieved 31 December 2011.
  17. ↑ "Launch of Collaborative Family Law Group". Collaborativefamilylaw.org.uk. Retrieved 31 December 2011.
  18. ↑ Wozniak, Vanessa (1 December 2011). "Lord Wilson'sKeynote Address". The Lawyer. Retrieved 31 December 2011.
  19. ↑ "IACP Networking and Educational Forum". International Academy of Collaborative Professionals. Retrieved 26 September 2015.
  20. ↑ Cordover, Adam (28 August 2015). "Research - Collaborative Divorce by the Numbers (2010)". Family Diplomacy: A Collaborative Law Firm. Retrieved 26 September 2015.
  21. ↑ "International Academy Of Matrimonial Lawyers Website". Iaml.org. Retrieved 31 December 2011.
  22. ↑ "Australia". Collaborativelaw.asn.au. Retrieved 31 December 2011.
  23. ↑ "Austria". avm.co.at. Archived from the original on 17 February 2009.
  24. ↑ "Austria". Rechtimdialog.at. Retrieved 31 December 2011.
  25. ↑ "Canada". Collaborativelaw.ca. Retrieved 31 December 2011.
  26. ↑ "Northern Ireland". Afriendlydivorce.co.uk. Retrieved 31 December 2011.
  27. ↑ "Republic of Ireland". Acp.ie. Retrieved 31 December 2011.
  28. ↑ EQ Design. "Scotland". Scottish-collaborativelawyers.com. Retrieved 31 December 2011.
  29. ↑ "Resolution". Resolution. Retrieved 31 December 2011.
  30. ↑ "Republic of Ireland-Galway". collaborativelawgalway.ie.
  31. ↑ "What is Collaborative Law - Resolve Cork". resolvecork.com. Obtaining Mechanic's Liens
  32. ↑ "Droit Collaboratif Accueil" (in French). Droit-collaboratif.org. Retrieved 31 December 2011.
  33. ↑ "Collaborative Practice California Website". cpcal.org/. Retrieved 5 June 2016.
  34. ↑ "Collaborative Family Law Council of Florida Website". collaborativecouncilflorida.com/. Retrieved 12 April 2014.
  35. ↑ "Collaborative Family Law Group of San Diego". collaborativefamilylawgroupsandiego.com/. Retrieved 5 June 2016.
  36. ↑ "Family Divorce Solutions". familydivorcesolutions.com/. Retrieved 5 June 2016.
  37. ↑ "Next Generation Divorce of Tampa Bay". NextGenerationDivorce.com/. Retrieved 12 April 2014.
  38. ↑ "Collaborative Professionals of Dallas". cpofdallas.com/. Retrieved 12 April 2014.
  39. ↑ "Collaborative Divorce Solutions". collaborativedivorcesolution.com/. Retrieved 12 April 2014.
  40. ↑ "Cleveland Academy of Collaborative Professionals". collaborativepracticecleveland.com/. Retrieved 12 April 2014.
  41. ↑ "Collaborative Law Act". Nccusl.org. Retrieved 31 December 2011.
  42. ↑ "THE UNIFORM COLLABORATIVE LAW ACT AS A TEACHING TOOL" (PDF). Hofstra. Retrieved 10 Mar 2009.
  43. ↑ "Governor Scott Signs Collaborative Divorce Bill Into Law". FamilyDiplomacy.com. Retrieved 11 June 2016.
  44. ↑ "law.upenn.edu". law.upenn.edu. Retrieved 31 December 2011.
  45. ↑ "Tampa Chief Judge Signs Administrative Order on Collaborative Divorce". abcfamilyblog.wordpress.com. Retrieved 22 May 2013.
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