Collaborative Law: A Brief Overview

Collaborative law, a consensual, non-litigation model of , has been practiced in Illinois for more than 15 years. The Illinois Collaborative Process Act, which takes effect January 1, formally recognizes the model and its use in family law and other settings.

BY THE INTERDISCIPLINARY MODEL OF CONFLICT RESOLUTION KNOWN AS COLLABORATIVE SANDRA LAW, also referred to as collaborative practice or collaborative process, has developed over the past 27 CRAWFORD years. It is actively practiced in an estimated 24 countries and in every state in the U.S., including Illinois.1 This article describes the elements of the collaborative model and how it differs from , briefly reviews the development of and the scholarship around the practice, and explains how Illinois lawyers can retool their practices to include collaborative law as an additional service to offer to clients. ______1. Information about the professional practice model around the world can be found on the IACP website at https://www. collaborativepractice.com/_t.asp?M=7&T=PracticeGroups.

▼ SANDRA CRAWFORD is a sole practitioner in Chicago offering collaborative process, mediation, and limited scope representation services to divorcing and separating families and is an adjunct professor of conflict resolution at North Central College in Naperville.  [email protected]

1 TAKEAWAYS >> • Collaborative practice is a consensual non-litigation process in which parties in conflict and their chosen professionals (attorneys, mental health, and financial professionals) enter into a written agreement to focus all Collaborative practice defined with other specially trained professionals (e.g., efforts, energies, and resources Collaborative practice (CP) is a consensual mental health or financial experts) to help craft on problem solving without non-litigation process in which parties solutions that will keep the parties out of court reference to a third-party in conflict and their chosen professionals now and in the future. As a leading scholars (attorneys, mental health, and financial in this area, Pauline Tesler, so eloquently adjudicator (judge or arbitrator). professionals) enter into a written agreement states, “When lawyers think differently, they to focus all efforts, energies, and resources on behave differently and counsel their clients • Professionals engaging 4 problem solving without reference to a third- differently.” in collaborative process must party adjudicator (judge or arbitrator). CP is a Historical background commit to withdraw if either form of limited-scope representation.2 In this Collaborative law is the brainchild of client chooses to go to litigation article the focus will be on the application of Minnesota attorney Stu Webb. In the 1980s or threatens litigation. the CP model to family law, although it also Webb, then a long-time practicing family law is used in areas such as probate and business litigator, had grown weary of the contentious • Professionals wishing disputes. and bitter nature of trial practice. On January to offer this model of dispute Some other basic elements of CP are: 1, 1990, he declared himself a “collaborative resolution must first educate • Informed consent by all participants in the l aw y e r.” themselves about its nuances process; For Webb, this meant that if the attorneys so as to be able to adequately • A commitment by the professionals to are “settlement lawyers” and the case does identify cases, clients, and withdraw if either client chooses to go to not settle, those attorneys have to get out and circumstances that are litigation or threatens litigation; turn it over to the trial lawyers. This resembles • Voluntary, good faith, and honest the British solicitor-barrister model in which appropriate and inappropriate exchange of all information needed to resolve the solicitors work up the case for settlement for the process. the conflict; and and the barristers take it to trial if it does not • A commitment to strive for solutions settle.5 that take into account the interests of all the Just as Webb is considered the “godfather” stakeholders. of the movement, San Francisco attorney One question repeatedly posed by lawyers Pauline Tesler and mental health professional is “how is this different from mediation?” The Peggy Thompson are considered the “god- key difference: in mediation, the mediator is a mothers.” Tesler’s book, Collaborative Law: neutral professional (not necessarily a lawyer) Achieving Effective Resolution in with- who does not dispense advice but rather out Litigation,6 published by the American Bar facilitates communication and Association, is now in its third edition. This book is a must-have for any lawyer contem- between the parties directly. CP lawyers act as ______advocates, legal advisors, negotiators, drafters, 2. Limited Scope Representation is already permitted in and consultants. Illinois. Ill. S. Ct. R. 1.2 (eff. Jan. 1, 2010). 3. For more on interest-based , see Roger CP calls on lawyers to think differently Fisher & William Ury, Getting to Yes: Negotiating Agree- ments Without Giving In, Penguin Books (Third Edition, about their place on the conflict resolution 2011). continuum. It calls on them to use interest- 4. Pauline H. Tesler, Collaborative Law: Achieving Ef- fective Resolutions in Divorce Without Litigation (ABA 3rd based negotiation skills, not positional Ed. 2013). bargaining techniques.3 The model also calls 5. J. Kim Wright, Lawyers as Peacemaker: Practicing Holistic, Problem-Solving Law 52-53 (ABA 2010). on lawyers to partner with their clients and 6. Tesler, supra note 4.

2 Standards of practice and the process from the assistance and training support of their professional team. The The IACP sets forth “Standards for team by virtue of its common training in A MEDIATOR IS A NEUTRAL, NON- Collaborative Practitioners” and “Ethical the model and in mediation speaks the ADVISING PROFESSIONAL WHO Standards for Collaborative Practitioners.” common language of CP. FACILITATES NEGOTIATION BETWEEN Both echo the years of continuous efforts With the help of an understanding THE PARTIES. CP LAWYERS ACT to cultivate, revise, and adopt common and responsive professional team (which practices among CP professionals. can address all facets of their dispute – AS ADVOCATES, LEGAL ADVISORS, A clear understanding of the legal, financial, and emotional) clients NEGOTIATORS, DRAFTERS, AND principles of CP is an essential first are better able to negotiate their own CONSULTANTS. step for any professional looking to agreements honestly and in person and become a collaborative practitioner. to create arrangements that are voluntary, A 15-hour introductory training in durable, future-focused, and mutually CP and additional communications beneficial. It is critical to recognize the skills training (generally in the area need to better address all dimensions of mediation) are the recommended of the client’s problem. CP provides an plating CP. Tesler and Thompson have first steps. Such training educates effective mechanisms for turning to also written a book to educate the public professionals in the core elements of appropriate professionals to help address about collaborative law as a consumer collaborative law and how these are the client’s challenges, interests, and option.7 different from settlement negotiations in goals, especially when they are outside From a small handful of disheartened the context of conventional litigation. the education and competency of one’s litigators and mental health professionals The collaborative model is uniquely primary profession (e.g., a lawyer would has grown a worldwide organization, The client driven. At the center of the turn to a mental health professional International Academy of Collaborative model is the understanding that each when the client’s needs are emotional or Professionals (IACP).8 Thanks to direct psychological). client has the support, protection, and advocacy from many within IACP, the Along with the minimum standards, guidance of his or her own lawyer and Uniform Collaborative Law Act (UCLA) the IACP has developed ethical standards from the other professionals who form was formulated and adopted by the for collaborative practitioners.10 Confi- the interdisciplinary team around the Uniform Law Commission in 2010. dentiality is another critical aspect of the parties. The other professionals can The UCLA has now been passed into collaborative practice. A practitioner’s include a neutral child specialist, a law in more than a dozen states. In 2016 own ethical and professional standards financial neutral, or a collaborative and 2017 a specially appointed committee for confidentiality and privacy still apply divorce coach (sometimes referred to as a within the ISBA worked with the UCLA to and are not trumped by the IACP stan- communications or process coach). dards. For example, although the practi- fashion the Illinois Collaborative Process Professional teams are configured to tioner may believe that the collaborative Act, SB 0067, which passed both houses, fit the particular circumstances of each process is the best for a client, a collab- was signed by the governor, and became case. Introductory training in CP law is 9 orative lawyer is still obliged to inform Public Act 100-0205. It will take effect essential for all the professionals, not just the client about all available options for January 1, 2018. the lawyers. Clients benefit throughout resolving disputes, including litigation, , mediation, and negotiation. ISBA RESOURCES >> ______• Matthew Hector, Collaborative Law Proposal Approved by ISBA Board, 7. See generally Pauline Tesler & Peggy Thompson, Collaborative Divorce: The Revolutionary New Way Assembly, 104 Ill. B.J. 10 (Dec. 2016), https://www.isba.org/ibj/2016/12/lawpulse/ to Restructure Your Family, Resolve Legal Issues, collaborativelawproposalapprovedbyi. and Move On With Your Life (Regan/Harper Collins 2006). • Tiffany M. Alexander, Collaborative Conflict, 104 Ill. B.J. 32 (Aug. 2016), https:// 8. International Academy of Collaborative Profes- sionals, http://www.collaborativepractice.com. www.isba.org/ibj/2016/08/collaborativeconflict. 9. Illinois Collaborative Process Act, http://www. ilga.gov/legislation/BillStatus.asp?DocTypeID= • Sandra Crawford, A Tale of Two Communities: Bringing Pro Bono Collaborative Law SB&DocNum=67&GAID=14&SessionID=91&LegID to Illinois National Guard Veterans, Family Law (Dec. 2015), https://www.isba.org/ =99519. 10. See IACP Principles of Collaborative Practice, sections/familylaw/newsletter/2015/12/taletwocommunitiesbringingprobonoco. available at https://www.collaborativepractice.com/lib/ Ethics/IACP Principles of Collaborative Practice.pdf.

3 Choosing and educating clients resolving the proposed collaborative Collaborative law is most often used matter, such as litigation, mediation, in family law cases, but it can also be arbitration, or expert evaluation; and applied in small business dissolutions, (3) advise the prospective party that: UNDER THE COLLABORATIVE- contested probate cases, and other (A) after signing an agreement if LAW MODEL, LAWYERS COMMIT matters. While individual attorneys in a party initiates a proceeding or TO WITHDRAW IF EITHER CLIENT these and other areas might describe seeks tribunal intervention in a CHOOSES TO GO TO LITIGATION. their styles of practice as “cooperative” pending proceeding related to the or “collaborative,” CP is not just a collaborative matter, the collabora- philosophy. It is a distinct and formal tive law process terminates; model of with (B) participation in a collaborative particular protocols and safeguards that law process is voluntary and any must be carefully studied before they are party has the right to terminate put into practice. unilaterally a collaborative law Just as attorneys who have never filed process with or without cause; and a bankruptcy or adoption should not do (C) the collaborative lawyer and of UCLA Rule 14. Including this language so before becoming competent, attorneys any lawyer in a law firm with would underscore the duty of attorneys should not take on CP matters without which the collaborative lawyer is to obtain informed consent from clients studying the model and the distinct associated may not appear before prior to proceeding. That helps clients commitments they are undertaking for a tribunal to represent a party understand the commitment they are a client. Practitioners also need to assess in a proceeding related to the making. clients to determine if they are good collaborative matter, except as Generally, the best practice from the candidates for CP. authorized by Rule 9(c), 10(b), or very first contact with potential CP clients Rule 14 of the Uniform Collaborative 11(b). is to make sure they are provided with Law Act was not adopted as part of the The Collaborative Law Institute hard copies of materials about the model. Illinois version. However, attorneys who of Illinois (www.collablawil.org) have been trained in and practice CP in recommends that there be a formal Attorneys need to educated clients about Illinois commit to Rule 14 guidelines: reading – sometimes line by line but the different models of dispute resolution APPROPRIATENESS OF COLLAB- usually in summary fashion – of the – be they litigation, mediation, arbitration, ORATIVE LAW PROCESS. participation agreement at the first four- or CP. The “best client” for any process is Before a prospective party signs a way meeting of parties and their counsel. an educated client. Under the CP model, collaborative law participation agree- After that, the clients are asked to attorneys go the extra step of educating ment, a prospective collaborative acknowledge, before each other and the and getting informed consent from both lawyer shall: attorneys, that they are voluntarily and clients before proceeding. (1) assess with the prospective party affirmatively agreeing to (1) enter into Conclusion factors the lawyer reasonably believes the process, (2) make full and complete relate to whether a collaborative law disclosure of all information, (3) act with CP is a rapidly evolving area of practice process is appropriate for the prospec- integrity and in good faith, (4) keep the which has at its core the aspiration to tive party’s matter; interests of all the stakeholders (including “do no harm,” whether it is being used in (2) provide the prospective party with the children in family law matters) in the family law, business law, or probate law information that the lawyer reason- forefront, and (5) allow the withdrawal of or other disputes. Professionals wishing ably believes is sufficient for the party both their attorneys if one of the parties’ to offer this model of dispute resolution to make an informed decision about threatens to or files litigation. must first educate themselves about its the material benefits and risks of a col- A proposal is pending before the nuances so as to be able to adequately laborative law process as compared to Illinois Supreme Court to adopt rules of identify cases, clients, and circumstances the material benefits and risks of other professional conduct that address the CP that are appropriate and inappropriate for reasonably available alternatives for model. Those may incorporate all or part the process.

Reprinted with permission of the Illinois Bar Journal, Vol. 105 #9, September 2017. Copyright by the Illinois State Bar Association. www.isba.org

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