NORTH CAROLINA ASSOCIATION OF DEFENSE ATTORNEYS WINTER WORKSHOP Introduction to Collaborative Law: Another Tool in Your Toolbox The Solution Center Durham, North Carolina January 27, 2017 John Sarratt Nicole Slaughter Harris Sarratt & Hodges, LLP Hamlet & Associates, PLLC 1620 Hillsborough St, Ste 200 5215 Junction Park Cir, Ste 2020 Raleigh, NC 27605 Wilmington, NC 28412 (929) 334-6276 (919) 777-5613 [email protected] [email protected] Robin Seelbach Wall Templeton & Haldrup, PA 1001 Wade Avenue, Ste 423 Raleigh, NC 27605 (919) 865-9500 [email protected] TABLE OF CONTENTS Page I. Introduction to Collaborative Law: Another Tool in Your Toolbox - By John Sarratt ................. 1 II. North Carolina General Statute, Chapter 50, Article 4 ............. 11 III. Sample Contract for Legal Services*** ....................................... 14 IV. Model Collaborative Law Participation Agreement***............. 16 V. Sample Contract Clauses*** ......................................................... 23 VI. Frequently Asked Questions*** ................................................... 24 VII. Ethics and Collaborative Law: NC 2002 Formal Ethics Opinion 1........................................... 27 VIII. How it All Began: February 14, 1990, Letter by Stuart G. Webb ......................................................... 30 *** The following individuals participated in the creation of these materials: Neale T. Johnson Smith Moore Leatherwood, LLP William A. Blancato Doughton Blancato, PLLC John Ong Cranfill, Sumner & Hartzog, LLP D. Anderson Carmen Bell, Davis & Pitt, P.A. Auley M. Crouch, III Block, Crouch, Keeter, Behm & Sayed, LLP Richard D. Conner Conner, Gwyn & Schenck, PLLC I. Introduction to Collaborative Law: Another Tool in Your Toolbox By John Sarratt INTRODUCTION TO COLLABORATIVE LAW: Another Tool in Your Toolbox The idea of Collaborative Law Practice is not new. Its origins date back to a letter written in 1990 from a family lawyer in Minneapolis, Minnesota, Stuart G. Webb, to the Honorable A. M. Keith, Justice of the Minnesota Supreme Court. From that single initiative, Collaborative Law Practice has spread to as many as 30,000 practitioners in 20 countries, though until now it has been confined almost entirely to domestic cases. The hallmarks of the Collaborative process are: 1. A client-centered process, where the parties sit down face to face – with the support of their Collaborative counsel – to talk through their dispute. 2. Honest negotiation based on real needs and interests and without the threat of litigation. 3. Open and transparent disclosure of all relevant information. 4. Privacy and confidentiality. 5. Shared use of truly neutral experts to provide information. 6. Mandatory attorney withdrawal in case of impasse. Stu Webb was motivated to introduce the concept of a Collaborative Law Practice because he felt his clients, who were couples going through a wrenching personal experience, were not being well served by the litigation model of resolving disputes. Coincidentally, others had reached the same conclusion about civil litigation in general. In North Carolina, the Task Force on Dispute Resolution was created by the North Carolina Bar Association in 1983 to look at possible alternatives to trial as a way of resolving disputes. That Task Force became the NCBA’s Committee on Dispute Resolution and then the Dispute Resolution Section, and the development of mediation in North Carolina had begun. In the meantime, the use of arbitration as an alternative to trial has also grown. Over time, however, many lawyers, judges and clients have begun to feel that the entire system of litigation, including alternatives such as mediation and arbitration, is becoming bogged down in expensive and time-consuming discovery, motion practice, and the gamesmanship that is part of any winner-take-all system. Many would say that while clients are the primary losers in a system which has become increasingly time-consuming and expensive, lawyers themselves are also suffering in the stressful win-lose environment in which they find themselves. In any business law scenario – including construction, employment, small or family business, or any other setting where there are ongoing relationships to preserve – Collaborative Law Practice offers an alternative to any form of dispute resolution that leaves the relationship between the parties damaged, and the parties themselves frustrated that they have lost control of how their business problems are being handled. In Collaborative Law Practice, the parties - each represented by counsel - are in control, and are working in a cost and time effective manner to achieve a resolution of their common problem that reflects the needs and interests of each party. The Collaborative lawyers back up this exclusive commitment to out-of-court resolution with an agreement that they will not themselves take the matter to court if the Collaborative effort fails. 1 In the family law context, Collaborative Practice has worked in North Carolina as elsewhere around the country where common interests exist, such as doing what is best for the children of a marriage, limited resources, a need for ongoing communications, and a desire for privacy and confidentiality. In 2014, the NCBA Dispute Resolution Section formed the Collaborative Law Committee to expand Collaborative Practice outside the family law context based the premise that these same factors are present in many business and other civil disputes. Often the parties to such a dispute have an ongoing relationship and a common interest in the dispute not contaminating that relationship with each other or with common vendors and customers. For many, the cost of litigation is also a factor; and frequently time is of the essence, creating a need for prompt resolution. Other benefits include the complete privacy of the proceeding - with no public record created - and that the parties themselves are in control of the outcome, with no judge, jury or arbitrator dictating the result. Collaborative Practice addresses all of these concerns. It is not a panacea. It will not suit every lawyer, every client, every case, or every situation. It is simply another tool in the toolbox. For the business clients, it offers a highly efficient, expedient, and less costly solution to their disputes. It also puts the client in charge and works to improve rather than harm existing business relationships. Every negotiating session in the Collaborative process includes all of the parties sitting down face-to-face accompanied by, but not shielded by, their counsel. For lawyers, especially those turned off by Rambo-style litigation, it offers an opportunity to serve clients by solving their problems without the destructive features of win-at-all-cost litigation. For the courts, it removes cases entirely from the court system, providing more resources for those cases that are not appropriate for a Collaborative solution. Since its formation almost three years ago, the Collaborative Law Committee has attracted members from all seven law schools located in North Carolina, as well as representatives from NCBA Sections on Administrative Law, Business Law, Construction Law, Estate Planning and Fiduciary Law, Labor and Employment, and Litigation, as well as from Dispute Resolution and Family Law where the Collaborative movement began. The Committee membership also includes experienced family law collaborative lawyers. Last April, we had our first two day training session focused on Collaborative Practice in a construction law context. That sub- group of lawyers is hard at work informing construction clients about the Collaborative alternative as well as drafting model documents that may be used by Collaborative lawyers in construction matters. The second complete training session was held December 8-9 in Charlotte. That training focused on labor and employment practice, and those attendees have already started work on bringing Collaborative Law Practice to their clients. A third course is planned for April 18-19 in Wrightsville Beach focused on small businesses, including family businesses. In addition to the work being done here in North Carolina, there are international and national organizations devoted to further spreading and developing Collaborative Practice. The oldest and largest, the International Academy of Collaborative Professionals (IACP), www.collaborativepractice.com, has focused on family disputes, though it has promulgated a uniform definition of Collaborative Practice, standards for Collaborative practitioners and trainers, a model interdisciplinary code of ethics, and public and professional education programs that can be adapted to any practice area. Another international organization is the Global Collaborative Law Council (GCLC), www.collaborativelaw.us. It was established in 2 2004 by a group of Texas Collaborative lawyers and now has members throughout the United States and abroad with a mission to advance the use of the Collaborative process in resolving all types of civil disputes. Advantages and Cautions Collaborative Practice can transform dispute resolution for any business clients, offering benefits to clients who commit to the process and employ skilled Collaborative practitioners. Even so, the Collaborative lawyer advising clients about process options should identify both the advantages and cautions associated with Collaboration in addition to distinguishing it from other processes. Advantages of Collaborative Practice