by Mary S. Pence, Esquire1
Like Dr. Martin Luther King, Jr., I have a dream.
- I have a dream that the day will come when every attorney who practices family law in Maryland will have been trained in Collaborative Law, and will present it as an alternative to every new client.
- I have a dream that every client who is facing a divorce or other family law problem will have heard of Collaborative Law, and will ask at the initial attorney interview: “Have you been trained in Collaborative Law?”
- I have a dream that thousands of Maryland children will have a better chance to achieve their emotional, social and intellectual potential because their parents resolved their differences collaboratively.
- I have a dream that the day will come when every judge and master in Maryland will be informed about Collaborative Law and will support and facilitate the use of Collaborative Law to resolve disputes in family law matters.2
The Basics of Collaborative Law
So what is Collaborative Law? Stuart G. Webb, Esquire, of Minneapolis, Minnesota, “created” Collaborative Law in 1990, when he started enrolling other family law attorneys in a new model of dispute resolution that utilized a different structure and different attorney skills than those of the traditional adversarial dispute resolution process. In fact, the key element of the Collaborative Law model he created is the disqualification provision, which requires the parties’ attorneys to withdraw if the process fails and the case is headed towards litigation. The parties and their counsel also are restricted from threatening to litigate if the process is not going their way. Thus, there are significant disincentives to quitting when the going gets rough (as it almost inevitably will) in the Collaborative Law process.
The disqualification provision is included in a larger Participation Agreement which is signed by both parties and their counsel. This Agreement provides for a respectful, open process which includes full disclosure of all relevant documents and information. If counsel to one of the parties learns that his client has withheld information or made misrepresentations during the Collaborative Law process, and continues to do so, then the attorney is obligated to withdraw from the process.
Both attorneys must have completed Collaborative Law training in order for the case to be a Collaborative case. Thus the attorneys bring the same, non-adversarial skill set to the four-way meetings which are the mainstay of the process. The ability to put aside the adversarial skills honed for a litigation practice and utilize a different set of skills essential to the successful practice of Collaborative Law is known in the field as “the paradigm shift.” A true “paradigm shift” only can be made by an attorney when litigation no longer is an option.
Clients who commit to the Collaborative Law process are not just making a deal – they are looking toward the future, and their ability to co-parent, communicate, and otherwise interact with their former spouse after the case is over.
How Widespread Is It?
Today, there are Collaborative Law practice groups in 29 states in the United States, and additional groups in many European countries. The Texas and North Carolina legislatures have adopted statutes which specifically address the use of Collaborative Law procedures in family law matters. An international organization, the IACP,3 provides education, training, and valuable resources for collaborative professionals and the public. And in one Canadian community, Medicine Hat, Ontario, every family law attorney except for one has been trained in Collaborative Law, and it is the dispute resolution mechanism of choice in family law matters. The reduction in the local court’s case load has been significant, leading to the elimination of a judge’s position there.
Does Collaborative Law Increase Costs?
The vast majority of cases that utilize the Collaborative Law process resolve collaboratively and consequently, the only litigation costs are those to obtain an uncontested divorce hearing. Additionally, other professionals often are utilized during the process such as child specialists, financial advisors, and business valuators. The collaborative participants and their attorneys mutually select a single “expert” who cannot later become a forensic witness should the process fail. The savings can be substantial depending on the issues in the case.
The Collaborative Participation Agreement requires the participants to preserve the marital estate and to maintain the status quo. Concerns about one spouse looting the family coffers can be significantly reduced and funds can be made available to a lesser economically viable spouse without the need for a pendente lite hearing.
Is There a Conflict Between Collaboration and Zealous Advocacy?
An often-articulated concern about Collaborative Law is an ethical one. That is, can an attorney simultaneously adhere to the Rules of Professional Conduct and practice collaboratively? Ethics Opinions from North Carolina4, Kentucky5, Maryland6, and New Jersey7 have addressed a variety of ethical issues posed by practitioners in those states. The authors of the Kentucky opinion note that today’s Rules of Professional Conduct no longer impose a duty of zeal, but rather impose duties of competence and diligence8. The authors of the New Jersey opinion conclude that the practice of Collaborative Law is not inconsistent with the Rules of Professional Conduct, so long as the attorney:
(1) does not pursue the collaborative process with a particular client in a particular context if he or she believes there is a significant possibility that the collaborative process will fail; and
(2) receives informed consent from the client after discussing the various dispute resolution mechanisms available to the client and the potential risks and consequences of the alternatives.
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued a comprehensive opinion in 2007 consistent with these opinions and setting forth the basis for the committee’s disagreement with the minority view set forth by Colorado9. The ABA ethics opinion holds that the provisions of the four-way agreement between the parties and their counsel is a permissible “limited scope” representation provided that the limitation is reasonable and the client provides informed consent to participation in the collaborative law process.
A collaborative law statute which will provide uniformity among the states in the practice of collaborative law as well as significantly raising the profile of the practice of collaborative law is being promulgated by the Uniform Laws Commission (“ULC”). Once the ULC has passed the Uniform Collaborative Law Act (“UCLA”), which is anticipated will happen in July of 2009, the UCLA will be sent to the ABA for approval, and then to the individual states for enactment by each state’s legislature. It is anticipated that Maryland will be a leader among the states in enacting the UCLA and in making the benefits of the collaborative law process available to Maryland families.
Meanwhile, more and more professionals, including attorneys, mental health professionals and financial planners are being trained in the process and are bringing their skills and vision to the utilization of the collaborative law process here in Maryland. Increasing numbers of family law matters are being successfully resolved within the collaborative law process. And the international organization for the practice of collaborative law, the IACP (see fn 3), will be holding its annual Forum in Washington, D.C. in 2010, bringing heightened awareness of and media attention to the collaborative law model.
1 Mary Pence is a senior partner in the firm of Feldesman Tucker Leifer Fidell LLP. She was trained in Collaborative Law in June, 2004, and completed Advanced Training in 2005. She is a member of the DC Academy of Collaborative Professionals and the Collaborative Dispute Resolution Professionals. She chairs the Collaborative Law Committee of the American Academy of Matrimonial Lawyers and serves on the Board of the Maryland Collaborative Professionals Council.
2 Administrative Judge Ann S. Harrington of the Circuit Court for Montgomery County has adopted the following local rule: “The parties to a civil action may ask the Court to proceed under collaborative law. The Court will stay the civil action and let the matter proceed under collaborative law procedures.” Judge Ross Foote of Louisiana has actively promoted the development and training of collaborative law attorneys in his parish.
3 The membership of the International Association of Collaborative Professionals includes attorneys and judicial officers, mental health professionals and financial planners. See www.collaborativepractice.com.
4 2002 Formal Ethics Opinion 1, April 19, 2002, the North Carolina State Bar.
5 Ethics Opinion KBA E-425, Issued: June 2005, Kentucky Bar Association.
6 MSBA Ethics Docket 2004-23.
7 Opinion 699, Advisory Committee on Professional Ethics, 182 N.J.L.J. 1055, 14 N.J.L. 2474, December 12, 2005.
8 See Maryland Lawyers’ Rules of Professional Conduct, Rules 1.1 and 1.3.
9 ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 07-447, dated August 9, 2007; Colorado Ethics Opinion 115, adopted February 24, 2006.