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COLLABORATIVE FAMILY LAW: REACHING RESOLUTIONS
RESPECTFULLY
Sponsor: Family Law Section and Young Lawyers Division CLE Credit: 1.0
Thursday, June 22, 2017 3:45 p.m. - 4:45 p.m. East Ballroom C-D
Owensboro Convention Center Owensboro, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.
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TABLE OF CONTENTS The Presenters ................................................................................................................. i Introduction ..................................................................................................................... 1 Collaborative Divorce and Kentucky's Rules of Professional Conduct ............................. 3 Kentucky Bar Association Ethics Opinion KBA E-425 ...................................................... 5 ABA Formal Ethics Opinion 07-447 ............................................................................... 15 International Academy of Collaborative Professionals Standards and Ethics ................ 21 Collaborative Law: Achieving Effective Resolution in Divorce without Litigation ........... 39
A Medical Analogy ............................................................................................. 39 Collaborative Agenda Management and Conflict Management in the Second Act ............................................................ 41 Advising Clients about the Law .......................................................................... 43 Helping Your Client Connect with Highest Intentions for the Divorce ................. 45 Basic Communications Skills for Lawyers and Clients ....................................... 47 Roadmap of Collaborative Case Divorce Collaborative versus Litigation ........... 49 Some Ground Rules during the Collaborative Law Process ............................... 51
The Academy of Northern Kentucky Collaborative Professionals Collaborative Participation Agreement .......................................................................... 53 Collaborative Family Law Participation Agreement ........................................................ 59
THE PRESENTERS
Bonnie M. Brown 4205 Springhurst Boulevard, Suite 201
Louisville, Kentucky 40241-6160 (502) 412-9190
[email protected] BONNIE M. BROWN maintains a private practice in Louisville and concentrates her practice in the area of family law. She is an Administrative Office of the Courts Approved Mediator and an American Academy of Matrimonial Lawyers Certified Arbitrator. Ms. Brown received her A.B. from Washington University, St. Louis and her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. She is a member of the Louisville, Kentucky and American Bar Associations, International Academy of Collaborative Professionals, American Academy of Matrimonial Lawyers, and the International Academy of Family Lawyers. Missy DeArk Dean Dorton Allen Ford, PLLC PNC Plaza 500 West Jefferson Street, Suite 1400 Louisville, Kentucky 40202 (502) 566-1017 [email protected] MISSY DEARK is the associate director of the Litigation Support & Valuation Services Business Consulting Group of Dean Dorton Allen Ford, PLLC in Louisville. Her work focuses on the areas of matrimonial dispute litigation support, expert witness and business valuation. She received her B.A., magna cum laude, from Bellarmine University and her Masters from Indiana University. Ms. DeArk is a member of the American Institute of Certified Public Accountants, National Association of Certified Valuation Analysts, and the Kentucky Society of Certified Public Accountants. She serves as president of the Kentucky Collaborative Family Network.
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Dr. Julia McAninch McAninch Psychological & Consulting Services, PLLC
1208 17th Avenue South Nashville, Tennessee 37212
(615) 400-2601 [email protected]
DR. JULIA MCANINCH is president of McAninch Psychological & Consulting Services, PLLC in Nashville and is a collaborative divorce coach and Rule 31 mediator. She received her B.A. from Hardin-Simmons University and her Psy.D. from The Chicago School of Professional Psychology. Dr. McAninch is a member of the Middle Tennessee Counseling Association, International Academy of Collaborative Professionals, Tennessee Psychological Association and the Tennessee Association of Professional Mediators. Rebecca A. Simpson English, Lucas, Priest & Owsley, LLP 1101 College Street Post Office Box 770 Bowling Green, Kentucky 42102 (270) 781-6500 [email protected] REBECCA A. SIMPSON is a senior attorney and mediator with English, Lucas, Priest & Owsley, LLP in Bowling Green and concentrates her practice in the areas of family law and mediation. She received her B.A. from Western Kentucky University and her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. Ms. Simpson is a member of the Bowling Green-Warren County, Kentucky and American Bar Associations, and the International Association of Collaborative Professionals. She serves as a trial commissioner for the Kentucky Bar Association and vice president of the Kentucky Collaborative Family Network. Ms. Simpson is an Administrative Office of the Courts Approved Family Law Mediator.
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INTRODUCTION COLLABORATIVE FAMILY PRACTICE:
FOSTERING RESPECTFUL RESOLUTIONS FOR FAMILIES Rebecca Simpson
Every family faces problems. However, when problems lead to separation or divorce, family law attorneys and other professionals who work with families are all too familiar with how the court process can create additional challenges for families who are already fractured. Litigation can be financially and emotionally devastating and can seriously undermine communication and cooperation between family members. The animosity, hurt, and mistrust triggered by the court process can prove to be especially crippling for couples with children who must work together as parents long after the court battles are over. Also, due to the public nature of most family court proceedings, the privacy of families before the court is compromised, and depending on the complexity of the issues involved, the process can take months or even years. Many professionals, recognizing the damage that fighting in court causes for families, have been working together for to offer families a less contentious and more respectful path to resolution. Collaborative Family Practice has been an emerging area of family law in Kentucky, across the U.S. and internationally for more than two decades. A non-adversarial alternative to court is very appealing to many couples who want a respectful and fiscally responsible resolution to their case. THE TEAM Through the collaborative process, attorneys, financial professionals and therapists who have received collaborative training work together as a team to assist families who voluntarily choose to resolve their legal disputes without court. In a collaborative case, each client has an independent attorney, each trained in collaborative practice. Typically, a neutral financial professional and a neutral mental health professional referred to as a "coach" are also part of the collaborative team. When helpful, a second mental health professional serves as a "child specialist" on the team. Attorneys in collaborative cases represent their individual clients while still maintaining the goals of the process and working with other team members in a collaborative manner. Attorneys educate and counsel their clients about legal issues and settlement options and help clients express themselves during team meetings to reach agreements that meet the client’s needs. Attorneys also draft documents throughout the process. The neutral financial professional assists clients in reaching lasting agreements during the collaborative process. Having the neutral financial professional involved facilitates better financial decision-making for the couple and educates the couple about the financial consequences of various settlement options. A mental health professional serves as a "coach" during the collaborative process. Despite their mental health background, a coach’s role is not to provide therapy. Instead, the coach facilitates open and respectful communication, helps the team overcome obstacles during negotiations and helps inspire a spirit of partnership throughout the process.
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In some, but not all, collaborative law cases involving children, a second mental health professional may join the team to serve as a "child specialist." The child specialist meets privately with the couple’s children to help the children through the divorce process and also meets with the team to serve as a voice for the children and to help the parents make decisions pertaining to their children.
HOW IT WORKS Rather than going to court, a collaborative case is resolved through a series of team meetings that typically occur at the attorneys’ offices. At the beginning of the process, both clients and all team members sign a "Participation Agreement." Clients and team members agree not to take the case court, to use good faith efforts in negotiating and to fully disclose all information in a willing and timely manner. A critical component of the "Participation Agreement" is that if either party decides to go to court, thereby abandoning the collaborative process, the professional team members terminate their roles. In other words, the clients have to hire new attorneys, new financial experts and possibly new mental health professionals if either party takes the case to court. Clearly, the delays and financial costs of abandoning collaboration to pursue litigation are considerable. Typically, the collaborative process begins by one or both parties contacting an attorney trained in collaborative practice. The Kentucky Collaborative Family Network maintains a directory of their members at kycollaborativedivorce.com. Other professionals advertise collaborative practice on their websites. At the initial meeting, the attorney should discuss with the client all available options to resolving existing disputes, including traditional litigation, mediation and collaborative practice so the client is fully aware of the differences and can make a voluntary and informed decision about whether the collaborative approach is best for the client. ETHICS Both the American Bar Association and the Kentucky Bar Association have addressed Collaborative Practice (see ABA Formal Opinion 07-447 and KBA Ethics Opinion E-425 included in these materials). Collaborative Practice is permitted but attorneys must ensure that they adhere to their ethical obligations.
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COLLABORATIVE DIVORCE AND KENTUCKY’S RULES OF PROFESSIONAL CONDUCT
Rules of the Supreme Court of Kentucky addressed in KBA E-425 :
SCR 3.130(1.1) Competence SCR 3.130(1.2) Scope of Representation and Allocation of Authority
Between Client and Lawyer SCR 3.130(1.3) Diligence SCR 3.130(1.4) Communication SCR 3.130(1.6) Confidentiality of Information SCR 3.130(1.16) Declining or Terminating Representation SCR 3.130(2.1) Advisor SCR 3.130(2.4) Lawyer Serving as Third Party Neutral SCR 3.130(5.6) Restrictions on Right to Practice SCR 3.130(8.4) Misconduct
I. LIMITED REPRESENTATION AGREEMENTS
Collaborative Practice is a type of limited representation. Such agreements are permissible so long as they are reasonable under the circumstances and otherwise comply with Supreme Court Rules.
Persels & Assocs., LLC v. Capital One Bank (USA), N.A., 481 S.W.3d 501 (Ky. 2016) Opinion of the Court by Justice Cunningham. All sitting. Hughes, Keller, Noble, Venters and Wright, JJ., concur. Minton, C.J., concurs in result only. The issue addressed was whether an attorney providing limited-representation to a pro se party was required to sign all pleadings and other court filings, which the attorney either drafted or assisted in drafting. The trial court answered this question affirmatively and sanctioned the attorneys involved for their failure to sign such pleadings and papers. The Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed and held that limited-representation agreements are permissible as long as they are reasonable under the circumstances and satisfy additional mandates discussed in the Court's opinion. The Court specifically found that the attorneys providing limited-representation in the present case were not required to sign the documents prepared as part of the limited-representation. Accordingly, CR 11 was not applicable. The Court remanded for the trial court to
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determine the reasonableness of the limited-representation agreements at issue here.
II. ENGAGEMENT LETTER
Suggested language for your standard engagement letter:
NOTWITHSTANDING THE ABOVE, IN THE EVENT THE PARTIES CHOOSE TO RESOLVE THEIR DISPUTE WITH THE COLLABORATIVE PROCESS, THE UNDERSIGNED’S REPRESENTATION WILL BE LIMITED TO SETTLEMENT OF THE CASE IN ACCORDANCE WITH THE GOALS AND METHODS SET FORTH IN A SEPARATE COLLABORATIVE AGREEMENT.
III. COLLABORATIVE PARTICIPATION AGREEMENT
Ethical issues must be addressed in the Collaborative Participation Agreement. IV. UNIFORM COLLABORATIVE LAW ACT
Uniform Collaborative Law Act enacted in several jurisdictions. http://www.uniformlaws.org/ActSummary.aspx?title=Collaborative%20Law%20Act
V. COLLABORATIVE PRACTICE V. COOPERATIVE PRACTICE
Collaborative Practice v. Cooperative Practice
Goals: Client goals are best interest of family
Client’s goals may be best interest of client only
Disclosure: Attorney may encourage client to disclose and must terminate collaboration upon refusal
Attorney requires client to disclose if opposing counsel “asks the right question”
Errors: Attorney must tell other (not “opposing”) counsel if he/she has made a mistake, such as a math error
Attorney may take advantage of opposing counsel’s mistake or omission
Strategizing: Clients determine case posture
Attorneys jockey for position
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KENTUCKY BAR ASSOCIATION ETHICS OPINION KBA E-425
Issued: June 2005
Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme Court has adopted various amendments, and made substantial revisions in 2009. For example, this opinion refers to Rule 1.2 and 1.16, which were amended, and to Rule 8.3, which was renumbered to Rule 8.4. Rule 2.2 was deleted and Rule 2.4, entitled "Lawyer serving as third-party neutral" was adopted. Rule 8.3 was renumbered to Rule 8.4. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kvbar.org), before relying on this opinion. Subject: Participation in the "Collaborative Law Process" Question 1: May a lawyer participate in a collaborative law process that requires the
parties to negotiate in good faith and to voluntarily disclose all relevant information?
Answer: Qualified yes. See discussion below. Question 2: May a lawyer participate in a collaborative law process that encourages
the lawyer to withdraw if the client fails to negotiate in good faith or make the agreed upon disclosures?
Answer: Qualified yes. See discussion below. Question 3: May a lawyer participate in a collaborative law process that prohibits the
lawyer for either party from continuing to represent their respective clients in the same or substantially related matter if the parties are unable to reach a settlement?
Answer: Qualified yes. See discussion below. Question 4: May lawyers join together in a collaborative law organization to enhance
their professional development and promote the collaborative law process?
Answer: See discussion below. Primary References: ABA Annotated Model Rules of Professional Conduct (2003); Sheila M. Gutterman, Collaborative Family Law – Part II, 30 Colaw 57 (2001); S.C.R. 3.130 [Kentucky Rules of Professional Conduct] Terminology, Rules 1.1, 1.2, 1.3, 1.4, 1.6, 1.16, 2.1, 2.2, 5.6 and 8.3.
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Opinion
Introduction This opinion is rendered in response to an inquiry from Collaborative Law of Central Kentucky, Inc., a non-profit organization of lawyers. Collaborative law is a relatively new form of alternative dispute resolution, which encourages parties to cooperate in order to reach an agreement, rather than to engage in acrimonious litigation.1 The collaborative law process has become increasingly popular and the topic has been widely discussed in family law seminars across the country. There are well over a hundred collaborative law groups in more than 25 states from California to New York2 and Texas has a statute specifically authorizing parties and their lawyers to use collaborative law procedures in divorce proceedings.3 Collaborative law is used primarily in family law cases and the collaborative law agreement presented to the Committee by the requestor was limited to family law situations. Although the collaborative law process may be useful in resolving other types of disputes, this opinion will focus on collaborative law in the family law context. The goal of the collaborative law process is to reach an agreement through a cooperative process. It is based upon a problem-solving model rather than an adversarial model and tends to focus on the future, rather than the past; on relationships rather than facts; and on rebuilding relationships rather than finding fault!4 As part of the collaborative law process, the lawyers and the parties are normally expected to sign an agreement setting forth the rules of the negotiations and the expectations of the parties. Each party has separate representation. All agree to open, face-to-face negotiations with both lawyers and clients present (four-way negotiations). The formal discovery process is eliminated, but the parties agree to full and timely disclosure of all material information and to act in good faith. If a lawyer learns that his or her client has acted in bad faith or withheld or misrepresented information, the agreement encourages the lawyer to withdraw. If the dispute cannot be resolved through the collaborative process, it is agreed that the lawyers will withdraw and will not participate in subsequent litigation involving the same or substantially related matter.
1 "Collaborative law" was conceived by a group of family lawyers in Minneapolis in 1990. 2 See the web page of the International Academy of Collaborative professionals at www.collabgroup.com. 3 V.T.C.A., Family Code sec. 6.603 (2004). "Collaborative law" is defined by the statute as a "procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties' counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement." See V.T.C.A. Family Code sec. 6.603(c) (2004) for a description of the mandatory provisions in a collaborative law agreement. 4 Douglas C. Reynolds and Doris F. Tennant, Collaborative Law – An Emerging Practice, 45-DEC B.B.J. 12 (2001).
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DISCUSSION The requestors presented the Committee with extensive materials about the development of collaborative law across the country, as well as a six-page agreement entitled "Collaborative Family Law Participation Agreement." The questions presented focused on four major issues: 1) the requirement of voluntary disclosure by the client; 2) the lawyer's withdrawal if the client fails to negotiate in good faith or make the required disclosures; 3) the prohibition against the lawyers' continued representation if the parties fail to reach a settlement through the collaborative process; and 4) the communication of information about collaborative law. The Committee has reformulated the questions in an attempt to focus the discussion on the broader issues and to increase awareness of some of the ethical issues that may arise in conjunction with this kind of representation. This opinion is not an approval or disapproval of any particular agreement or organization, or an indication that these are the only ethical questions that may arise in this type of representation. Before discussing the specific questions posed, three very important observations must be made. The first is that the collaborative law agreement between a lawyer and the client cannot alter the lawyer's ethical obligations under the Rules of Professional Conduct. The second is that the lawyer has a duty to represent his or her client competently and to exercise independent professional judgment and give candid advice. SCR 3.130-1.1 and 2.1. A lawyer cannot advise a client to use the collaborative process without assessing whether it is truly in the client's best interest. Finally, because the relationship between the lawyer and the client is different from what would normally be expected, the lawyer has a heightened obligation to communicate with the client regarding the representation and the special implications of collaborative law process. The Rules of Professional Conduct provide that the client has the right to make certain decisions regarding the representation and that the lawyer has a responsibility to provide information to the client so that the client's decision making is informed. Specifically, Rule 1.2 provides "[a] lawyer shall abide by a client's decision concerning the objectives of representation ... and shall consult with the client as to the means by which they are pursued." SCR 3.130-1.2. In some cases, the objectives of the representation may be limited by the lawyer, but "only if the client consents after consultation." SCR 3-130-1.2. As to the duty to communicate, the rules provides[sic] that the "lawyer should explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." SCR 3.130-1.4. Comment [1] of Rule 1.4 provides that "[t]he client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued...."5 The "Terminology" section of SCR 3.130 provides that the term "'consult' or 'consultation' denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." Read together, these rules require the lawyer to fully explain the
5 SCR 3.130.1.2 Comment [1] emphasizes the joint nature of the attorney-client relationship, and provides "[b]oth the lawyer and client have authority and responsibility in the objectives and means of representation." The client has ultimate authority to determine the purposes to be served by legal representation, with the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives."
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collaborative law process so that the client can make an informed decision about the representation. The duty to communicate is particularly important because the collaborative process is dramatically different from the adversarial process, with which most clients are familiar. The decision as to whether to use the collaborative process is a critical one for the client – it involves both the objectives of the representation and the means by which they are to be accomplished and it affects the relationship between the lawyer and the client. The kind of information and explanation that is essential to informed decision making includes the differences between the collaborative process and the adversarial process, the advantages and risks of each, reasonably available alternatives and the consequences should the collaborative process fail to produce a settlement agreement. Although the collaborative law agreement may touch on these matters, it is unlikely that, standing alone, it is sufficient to meet the requirements of the rules relating to consultation and informed decision making. The agreement may serve as a starting point, but it should be amplified by a fuller explanation and an opportunity for the client to ask questions and discuss the matter. Those conversations must be tailored to the specific needs of the client and the circumstances of the particular representation. The Committee recommends that before having the client sign the collaborative agreement, the lawyer confirm in writing the lawyer's explanation of the collaborative process and the client's consent to its use.
Question I. Question I asks whether a lawyer may enter into a collaborative law agreement that requires both sides to reveal all material facts and circumstances? One possible objection to the full-disclosure requirement is that it runs contrary to certain understandings of the adversarial process, where neither party is obligated to voluntarily disclose adverse facts. However, the civil discovery rules provide for compelled disclosure of relevant facts and the standing orders in many family courts require the exchange of extensive financial data. There is nothing to prevent parties from voluntarily agreeing to full disclosure, as long as the client fully appreciates the implications of such an agreement. Some commentators have suggested that the lawyer's participation in the collaborative process may be inconsistent with the duty of zealous representation.6 This so-called "duty" has its roots in Canon 7 of the former Code of Professional Responsibility, and was most often associated with the tough lawyer involved in litigation (the hired gun).7 Today's Rules of Professional Conduct, adopted in Kentucky in 1990, no longer impose a duty of zeal, but rather impose duties of competence8 and diligence.9
6 See, Larry R. Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation Can Be Ethically Incorporated into the Practice of Law, 56 Baylor L. Rev. 141 (2004). 7 ABA Model Code of Prof 1 Responsibility Canon 7. 8 SCR 3.130-1.1. 9 SCR 3.130-1.3.
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Although many of the current rules focus on the litigation aspects of lawyering, and even mention "zeal" in a comment to Rule 1.3 on diligence,10 the rules should not be read to preclude non-adversarial representations. Rule 2.1, for example, describes the lawyer as an advisor and states "[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." SCR 3.130-2.1. And Rule 2.2 provides that a lawyer may act as an intermediary between two clients in certain transactional settings. SCR 3.130-2.2. In whatever capacity the lawyer serves, one of his or her primary obligations is to help the client define the objectives of the representation and decide upon the appropriate means of achieving them. If one of the client's objectives is to obtain a divorce in the most amicable way possible, then it is incumbent upon the lawyer to help the client find the means to accomplish that goal. In a recent article on collaborative family law, Sheila M. Gutterman addresses some of the ethical issues alluded to above and stresses that the lawyer engaging in collaborative representation has the same ethical obligations to the client as any other lawyer.
Attorneys have an ethical obligation to competently and diligently represent the client. Collaborative family law does not change that. The collaborative family law process does necessitate consideration of the financial and emotional needs of both spouses, the children, and the family as a whole in working toward settlement, but the collaborative lawyer is expected to represent his or her client with the same due diligence owed in any proceeding. Due diligence includes considering with the client what is in the client's best interests, which includes the well being of children, family peace, and economic stability. If the collaborative family law process is not in the client's best interests, the attorney is charged to advise the client to choose a different system, tailored to his or her needs.11 [Footnotes omitted].
Question II.
The second question relates to the fact that the lawyer is encouraged to withdraw from the collaborative process if his or her client fails to comply with the provisions of the agreement by withholding or misrepresenting information or otherwise acting in bad faith. We begin by looking at Rule 1.16, which outlines the circumstances and procedures for withdrawal. SCR 3.130-1.16. This rule sets forth a number of situations, which either require or permit withdrawal. For example, the rule Hermits[sic] withdrawal if the "client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;" or if the "client fails substantially to fulfill an obligation to the lawyer regarding the
10 SCR 3.130-1.2 Comment [1] states "[t]he lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." 11 Sheila M. Gutterman, Collaborative Family Law – Part II, 30 Colaw 57 (2001).
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lawyer's services and has been given reasonable warning;"12 or if "other good cause for withdrawal exists." If the client is violating one of the core provisions of the collaborative agreement, which both the lawyer and the client have signed, it would appear that the lawyer has the right to withdraw under one of the above provisions. It must be emphasized, however, that even if the lawyer has the right to withdraw, he or she still must still comply with the protective provisions of Rule 1.16, and with any court imposed requirements relative to withdrawal. Thus,"[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned." SCR 3.130-1.16d. In addition, if the lawyer has appeared in court on behalf of the client, he or she must comply with local rules and obtain the court's permission to withdraw. Although some collaborative agreements give the lawyer discretion to withdraw when the client fails to comply with the agreement they both signed, it must be emphasized that Rule 1.16 may require withdrawal in certain cases. Specifically, Rule 1.16(a) provides that the lawyer must withdraw if "[t]he representation will result in violation of the Rules of Professional Conduct or other law." Rule 1.2(d) provides that "[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer know[sic] is criminal or fraudulent." SCR 3.130-1.2. In addition, a comment to Rule 1.6 states that "[i]f the lawyer's services will be used by the client in materially furthering a course of ... fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1)." As to the definition of fraud, the terminology section of the Rules of Professional Conduct provides that term 'fraud' or 'fraudulent' denotes conduct having a purpose to deceive...." Both the lawyer and the client are normally expected to sign the collaborative law agreement and the lawyer's continued representation may, in some cases, rise to the level of assisting the client in a fraud, which would require the lawyer to withdraw. Moreover, the continued representation could engage the lawyer in "conduct involving dishonesty, fraud, deceit or misrepresentation," in violation of Rule 8.3. SCR 3.130-8.3. In either case, the lawyer would be required to withdraw under Rule 1.16. This opinion should not be read to suggest that the collaborative agreement, which provides for discretionary withdrawal, in any way alters the lawyer's mandatory obligation to withdraw under the Rules of Professional Conduct. A second issue, under some collaborative agreements, is whether a lawyer who withdraws because his or her client is not honoring the agreement may do so "silently" – without explaining the reason for the withdrawal. As a general rule, silence is required because Rule 1.6 prohibits a lawyer from revealing confidential information. SCR 3.130-1.6. Comment [16] reinforces the general principle by providing "[a]fter withdrawal the lawyer is required to refrain from making disclosure of the clients' confidences, except as otherwise provided in Rule 1.6." The Comment goes on to observe that "[n]either this rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and upon withdrawal the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like." This "noisy" withdrawal is most often used in cases where the lawyer's services have been used to perpetrate a fraud and there is some kind of continuing reliance upon the lawyer's representation or work product. The Comment permits, but does not require, the lawyer to exercise his or her discretion
12 See also, SCR 3.1130-1.16 Comment [8] , which provides that "a] lawyer may withdraw if the client fails to abide by the terms of an agreement relating to the representation ...."
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and withdraw "noisily." The Comment's inclusion under Rule 1.6 implies that the normal procedure is to withdraw "silently." Nevertheless, a silent withdrawal may be problematic in this setting. If the collaborative law agreement, signed by the parties and lawyers, requires full disclosure by all, the withdrawal without explanation may violate the spirit of the agreement, unless the agreement also makes clear that the withdrawal may be "silent" and that there will not be full disclosure on this point. In addition, Rule 4.1 provides that "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person." The withdrawing lawyer must be careful not to misrepresent the reason for withdrawal.
Question III. One of the key features of the collaborative law agreement is the disqualification provision. If the parties cannot reach a settlement, then the process ends and both parties must obtain new counsel for that and related matters. In effect, the collaborative lawyers agree that they will not represent the parties in litigation. This "disqualification agreement" implicates several ethical issues. The requestors asked whether such a provision violates Rule 5.6, which provides:
A lawyer shall not participate in offering or making: (a) A partnership or employment agreement that restricts the right of
a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) An agreement in which a restriction on the lawyer's right to
practice is part of a settlement of a controversy between private parties. SCR 3.130-5.6.
Rule 5.6 applies to agreements between lawyers practicing together and settlement agreements between parties to litigation. While the collaborative law agreement may prevent a lawyer from continuing to represent a single client in a court proceeding, it is not the kind of restrictive covenant contemplated by Rule 5.6. The inquiry does not end with Rule 5.6. Under the collaborative law agreement, the parties agree to a limited representation. Rule 1.2 recognizes limited representations by providing that "[a] lawyer may limit the objectives of the representation if the client consents after consultation." SCR 3.130-1.2(c). The terms of the lawyer's engagement are limited by the collaborative law agreement. The lawyer is retained to counsel and assist the client in a discrete activity – settlement negotiations. If the collaborative process fails to produce a settlement, then the representation ends. The client must consent to the limited representation, which means he or she must be advised of the limited nature of the relationship and the implications of the arrangement. For example, obtaining new counsel will entail additional time and cost; the client may feel pressured to settle in order to avoid having to obtain new counsel; and the failure to reach a settlement, necessitating new counsel, is not within the exclusive control of the client –the opponent can effectively disqualify both counsel. The client may be willing to assume these and other risks of the collaborative process but, as previously discussed, the lawyer must communicate sufficient information so that the client has an adequate basis upon which to base such a decision.
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Question IV. The final questions relate to the formation of collaborative law groups, solicitation and advertising. The requestors have cited both Rule 6.3 dealing with "legal services organizations," and Rule 7.01 et seq. dealing with "information about legal services" (what we normally refer to as advertising and solicitation). Lawyers are free to join law-related organizations designed to advance their professional development, as long as their activities do not violate the Rules of Professional Conduct. Without knowing what the organization plans to do, it is impossible to assess whether its activities are permissible. However, two points should be made. First, Rule 6.3, which was cited by the requestors, talks about organizations that provide legal services. Although Rule 6.3 does not define "legal services organization," it appears under the heading "Public Service" and it is generally understood that this rule applies to public or charitable organizations serving the poor, such as Legal Aid and the Public Defender.13 Second, the advertising and solicitation rules are cited, suggesting that the group plans to communicate with the public regarding the organization or its members. The Committee will not speculate as to the type of communications that might be contemplated by the organization or its members, other than to note that Rules 7.01-7.50 govern communications regarding a lawyer's services. SCR 3.130-7.01-7.05. Moreover, the Advertising Commission is better suited to evaluate the specific content and method of dissemination.
Conclusion Collaborative law is an evolving concept and it is impossible at this stage to anticipate all of the ethical issues that might arise in the course of a collaborative representation. Nevertheless, the Committee has attempted to address those issues raised by the requestor, but it cautions lawyers who engage in this type of practice to be on the lookout for other ethical issues. By way of summary, lawyers who engage in the collaborative-type resolution process are reminded that they are still bound by the Rules of Professional Conduct and cannot circumvent those rules through the collaborative agreement. More specifically, the lawyer has a duty of competence and independence, including the duty to evaluate whether the collaborative process will serve the client's best interests. In addition, the lawyer has a duty to adequately inform the client about the process, including the advantages, disadvantages and alternatives, and to obtain the client's informed consent to its use. Where it is contemplated that the lawyer will be prohibited from continued representation, either because the client does make disclosures required by the substantive provisions of the collaborative law agreement or because the parties are unable to reach a settlement, the lawyer must fully advise the client of the limitations on continued representation and of the consequences of withdrawal. The lawyer also must be prepared to comply with the applicable rules on mandatory withdrawal and confidentiality. Finally, as in any representation, the lawyer cannot counsel or assist the client in conduct that the lawyer knows is criminal or fraudulent and cannot engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The collaborative lawyer must consider the implications of these rules in those situations where his or her client is acting in bad faith or failing to make the required disclosures under the collaborative agreement. In the final analysis, there
13 For a discussion of this point, see the ABA Annotated Model Rules of Professional Conduct (2003) at 519.
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may be situations where the collaborative process will serve the interests of the client and will not create ethical dilemmas for the lawyer. However, the lawyer must be ever mindful of the potential ethical challenges and be fully prepared to address them. Any lawyer who engages in the collaborative process must proceed with the utmost caution in order to avoid all potential ethical pitfalls. No doubt, if the collaborative process continues to gain support, other ethical issues will come to light.
Note to Reader This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.
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ABA COMMITTEE ON ETHICS OPINION∗ ABA FORMAL ETHICS OPINION 07-447
© 2007 by the American Bar Association. Reprinted with permission.∗∗
Standing Committee on Ethics and Professional Responsibility Formal Opinion 07-447 August 9, 2007 Ethical Considerations in Collaborative Law Practice Before representing a client in a collaborative law process, a lawyer must advise the client of the benefits and risks of participation in the process. If the client has given his or her informed consent, the lawyer may represent the client in the collaborative law process. A lawyer who engages in collaborative resolution processes still is bound by the rules of professional conduct, including the duties of competence and diligence.1 In this opinion, we analyze the implications of the Model Rules on collaborative law practice.2 Collaborative law is a type of alternative dispute resolution in which the parties and their lawyers commit to work cooperatively to reach a settlement. It had its roots in, and shares many attributes of, the mediation process. Participants focus on the interests of both clients, gather sufficient information to insure that decisions are made with full knowledge, develop a full range of options, and then choose options that best meet the needs of the parties. The parties structure a mutually acceptable written resolution of all issues without court involvement. The product of the process is then submitted to the court as a final decree. The structure creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.3 Since its creation in Minnesota in 1990,4 collaborative practice5 has spread rapidly throughout the United States and into Canada, Australia, and Western Europe.
∗ From "Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation," by Pauline H. Tesler, Copyright 2016 by the American Bar Association. Reproduced with permission. ∗∗ Copies of ABA Model Rules of Professional Conduct, 2006 Edition, are available from the Service Center, American Bar Association, 321 North Clark Street, Chicago, IL 60610, 1-800-285-2221. 1 This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through February 2007. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are controlling. 2 We do not discuss the ethical considerations that arise in connection with a lawyer's participation in a collaborative law group or organization. See Maryland Bar Ass'n Eth. Op. 2004-23 (2004) (discussing ethical propriety of "collaborative dispute resolution non-profit organization."). 3 See generally Sherri Goren Slovin, "The Basics of Collaborative Family Law: A Divorce Paradigm Shift," 18 Amer. J. Fam. L. 74 (Summer 2004), available at http://www.mediate.com/ pfriendly.cfm?id=1684. 4 "Minnesota Collaborative Family Law FAQs," available at http://www.divorcenet.com/states/ minnesota/mnfaq01.
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Numerous established collaborative law organizations develop local practice protocols, train practitioners, reach out to the public, and build referral networks. On its website, the International Academy of Collaborative Professionals describes its mission as fostering professional excellence in conflict resolution by protecting the essentials of collaborative practice, expanding collaborative practice worldwide, and providing a central resource for education, networking, and standards of practice.6 Although there are several models of collaborative practice, all of them share the same core elements that are set out in a contract between the clients and their lawyers (often referred to as a "four-way" agreement). In that agreement, the parties commit to negotiating a mutually acceptable settlement without court intervention, to engaging in open communication and information sharing, and to creating shared solutions that meet the needs of both clients. To ensure the commitment of the lawyers to the collaborative process, the four-way agreement also includes a requirement that, if the process breaks down, the lawyers will withdraw from representing their respective clients and will not handle any subsequent court proceedings. Several state bar opinions have analyzed collaborative practice and, with one exception, have concluded that it is not inherently inconsistent with the Model Rules.7 Most authorities treat collaborative law practice as a species of limited scope representation and discuss the duties of lawyers in those situations, including communication, competence, diligence, and confidentiality. However, even those opinions are guarded, and caution that collaborative practice carries with it a potential for significant ethical difficulties.8
5 The terms "collaborative law," "collaborative process," and "collaborative resolution process" are used interchangeably with "collaborative practice." Although collaborative practice currently is utilized almost exclusively by family law practitioners, its concepts have been applied to employment, probate, construction, real property, and other civil law disputes where the parties are likely to have continuing relationships after the current conflict has been resolved. 6 See http://www.collaborativepractice.com/t2.asp?T=Mission. 7 Colorado Bar Ass'n Eth. Op. 115 (Feb. 24, 2007), "Ethical Considerations in the Collaborative and Cooperative Law Contexts," available at http://www.cobar.org/Portals/COBAR/Repository/ ethicsOpinions/FormalEthicsOpinion_115.pdf?ver=2016-10-04-104226-273, is the only opinion to conclude that a non-consentable conflict arises in collaborative practice. Other state authorities analyze the disqualification obligation under Rules 1.2, 1.16, or 5.6. See e.g., Kentucky Bar Ass'n Op. E-425 (June 2005), "Participation in the "Collaborative Law" Process," available at http://c.ymcdn.com/sites/www.kybar.org/resource/resmgr/Ethics_Opinions_(Part_2)_/kba_e-425.pdf; New Jersey Adv. Comm. on Prof'l Eth. Op. 699 (Dec. 12, 2005), "Collaborative Law," available at http://njlaw.rutgers.edu/collections/ethics/acpe/acp699_1.html; North Carolina State Bar Ass'n 2002 Formal Eth. Op. 1 (Apr. 19, 2002), "Participation in Collaborative Resolution Process Requiring Lawyer to Agree to Limit Future Court Representation," available at https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2002-formal-ethics-opinion-1/; Pennsylvania Bar Ass'n Comm. on Legal Eth. & Frei Resp. Inf. Op. 2004-24 (May 11, 2004), available at http://wvvw.collaborativelaw.us/articles/Ethics_Opinion_Penn_CL_2004.pdf. Several states have special rules for collaborative law practice. See, e.g., Cal. Fam §2013 (West 2007); N.C. Gen. Stat. §5070 to 5079 (2006); Tex. Fam. Code Ann. SS 6.603 & 153.0072 (Vernon 2005). 8 Supra note 6.
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As explained herein, we agree that collaborative law practice and the provisions of the four-way agreement represent a permissible limited scope representation under Model Rule 1.2, with the concomitant duties of competence, diligence, and communication. We reject the suggestion that collaborative law practice sets up a non-waivable conflict under Rule 1.7(a)(2). Rule 1.2(c) permits a lawyer to limit the scope of a representation so long as the limitation is reasonable under the circumstances and the client gives informed consent. Nothing in the Rule or its Comment suggest that limiting a representation to a collaborative effort to reach a settlement is per se unreasonable. On the contrary, Comment [6] provides that "[a] limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives." Obtaining the client's informed consent requires that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the limited representation.9 The lawyer must provide adequate information about the rules or contractual terms governing the collaborative process, its advantages and disadvantages, and the alternatives. The lawyer also must assure that the client understands that, if the collaborative law procedure does not result in settlement of the dispute and litigation is the only recourse, the collaborative lawyer must withdraw and the parties must retain new lawyers to prepare the matter for trial.10 The one opinion that expressed the view11 that collaborative practice is impermissible did so on the theory that the "four-way agreement" creates a non-waivable conflict of interest under Rule 1.7(a)(2). We disagree with that result because we conclude that it turns on a faulty premise. As we stated earlier, the four-way agreement that is at the heart of collaborative practice includes the promise that both lawyers will withdraw from representing their respective clients if the collaboration fails and that they will not assist their clients in ensuing litigation. We do not disagree with the proposition that this contractual obligation to withdraw creates on the part of each lawyer a "responsibility to a third party" within the meaning of Rule 1.7(a)(2). We do disagree with the view that such a responsibility creates a conflict of interest under that Rule. A conflict exists between a lawyer and her own client under Rule 1.7(a)(2) "if there is a significant risk that the representation [of the client] will be materially limited by the lawyer's responsibilities to . . . a third person or by a personal interest of the lawyer." A self-interest conflict can be resolved if the client gives informed consent, confirmed in writing,12 but a lawyer may not seek the client's informed consent unless the lawyer "reasonably believes that [she] will be able to provide competent and diligent
9 Rule 1.0(e). 10 See also Rule 1.4(b), which requires that a lawyer "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 11 Colorado Bar Ass'n Eth. Op.115, supra note 7. 12 Rule 1.7(b)(4).
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representation" to the client.13 According to Comment [1] to Rule 1.7, "[l]oyalty and independent judgment are essential elements in the lawyer's relationship to a client." As explained more fully in Comment [8] to that Rule, "a conflict exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited by the lawyer's other responsibilities or interests. . . . The conflict in effect forecloses alternatives that would otherwise be available to the client." On the issue of consentability, Rule 1.7 Comment [15] is instructive. It provides that "[c]onsentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation." Responsibilities to third parties constitute conflicts with one's own client only if there is a significant risk that those responsibilities will materially limit the lawyer's representation of the client. It has been suggested that a lawyer's agreement to withdraw is essentially an agreement by the lawyer to impair her ability to represent the client.14 We disagree, because we view participation in the collaborative process as a limited scope representation.15 When a client has given informed consent to a representation limited to collaborative negotiation toward settlement, the lawyer's agreement to withdraw if the collaboration fails is not an agreement that impairs her ability to represent the client, but rather is consistent with the client's limited goals for the representation. A client's agreement to a limited scope representation does not exempt the lawyer from the duties of competence and diligence, notwithstanding that the contours of the requisite competence and diligence are limited in accordance with the overall scope of the representation. Thus, there is no basis to conclude that the lawyer's representation of the client will be materially limited by the lawyer's obligation to withdraw if settlement cannot be accomplished. In the absence of a significant risk of such a material limitation, no conflict arises between the lawyer and her client under Rule 1.7(a)(2). Stated differently, there is no foreclosing of alternatives, i.e., consideration and pursuit of litigation, otherwise available to the client because the client has specifically limited the scope of the lawyer's representation to the collaborative negotiation of a settlement.16
13 Rule 1.7(b)(1). 14 Colorado Bar Ass'n Eth. Op.115, supra note 7 (practice of collaborative law violates Rule 1.7(b) of Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event that the process is unsuccessful). 15 See "Handbook on Limited Scope Legal Assistance: A Report of the Modest Means Task Force," 2003 ABA Section of Litigation, at 27-29, available at http://www.abanet.org/ litigation/taskforces /modest/report.pdf. 16 See Lerner v. Laufer, 819 A.2d 471, 482 (N.J. Super. Ct. App. Div. 2003), cert. denied, 827 A.2d 290 (N.J. 2003) (stating that "the law has never foreclosed the right of competent, informed citizens to resolve their own disputes in whatever way may suit them," court rejected malpractice
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American Bar Association Standing Committee on Ethics and Professional Responsibility, 321 N. Clark Street, Chicago, Illinois 60610-4714; Telephone (312) 988-5300. CHAIR: Steven C. Krane, New York, NY; Elizabeth Alston, Covington, LA; T. Maxfield Bahner, Chattanooga, TN; Arnie L. Clifford, Columbia, SC; Edwin L. Felter, Jr., Denver, CO; James Akio Kawachika, Honolulu, HI; Robert H. Mundheim, New York, NY; Arden J. Olson, Eugene, OR; Irma Russell, Tulsa, OK; Sylvia E. Stevens, Lake Oswego, Or. Center for Professional Responsibility: George A. Kuhlman, Ethics Counsel; Eileen B. Libby, Associate Ethics Counsel. © 2007 by the American Bar Association. All rights reserved.
claim against lawyer who used carefully drafted limited scope retainer agreement); Alaska Bar Ass'n Eth. Op. No. 93-1 (May 25, 1993) (lawyer may ethically limit scope of representation but must notify client clearly of limitations on representation and potential risks client is taking by not having full representation); Arizona State Bar Ass'n Eth. Op. 91-03 (Jan. 15, 1991) (lawyer may agree to represent client on limited basis as long as client consents after consultation and representation is not so limited in scope as to violate ethics rules); Colo. Bar Ass'n Ethics Comm. Formal Op. 101 (Jan. 17, 1998) (noting examples of "commonplace and traditional" arrangements under which clients ask their lawyers "to provide discrete legal services, rather than handle all aspects of the total project").
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INTERNATIONAL ACADEMY OF COLLABORATIVE PROFESSIONALS STANDARDS AND ETHICS (AS OF SEPTEMBER 2015)
Copyright 2016 by the International Academy of Collaborative Professionals. Reproduced with permission.
Contents: 1. Prefatory Comments to Standards and Ethics 2. Definition of Collaborative Practice (2011) 3. Ethical Standards for Collaborative Practitioners 4. Minimum Standards for Collaborative Practitioners (October 2014) 5. Interim Minimum Standards for Introductory Collaborative Practice Trainings and
Introductory Interdisciplinary Collaborative Practice Trainings (October 2014) 6. Interim Minimum Standards for Collaborative Trainers (October 2014; clarified
February 2015)
Prefatory Comments to Standards and Ethics TACP's mission is to transform how conflict is resolved worldwide through Collaborative Practice. Collaborative Practice involves a fundamentally different approach than traditional methods of conflict resolution, resulting in the need for unique Standards and Ethics. IACP has adopted these Standards and Ethics to promote the essential elements of Collaborative Practice and to establish core principles and requirements designed to advance: • consistency of practice • a common set of expectations for professionals and clients • a high level of integrity for the benefit of clients The Standards and Ethics consist of these parts: 1. Definition of Collaborative Practice identifies the fundamentals of the process. 2. Ethical Standards for Collaborative Practitioners provides guidance to
professionals regarding competence, confidentiality, advocacy, and professional roles with respect to questions and situations not addressed by other traditional rules of professional conduct.
3. Minimum Standards for Collaborative Practitioners delineates essential training,
licensure, and experience for professionals. 4. Interim Minimum Standards for Introductory Collaborative Practice Trainings and
Introductory Interdisciplinary Collaborative Practice Trainings provides the elements that introductory Collaborative trainings must include.
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5. Interim Minimum Standards for Collaborative Trainers specifies minimum qualifications that trainers should have in order to provide an effective training.
IACP Standards and Ethics are designed to establish minimum expectations for professionals, and to support the goal of ensuring that Collaborative Practice retains quality, consistency, and integrity. IACP is not a regulatory body. IACP Standards and Ethics do not form a basis for determining whether a practitioner is subject to legal liability or disciplinary action.
International Academy of Collaborative Professionals
Definition of Collaborative Practice Collaborative Practice is a voluntary dispute resolution process in which parties settle without resort to litigation. In Collaborative Practice: 1. The parties sign a collaborative participation agreement describing: nature and
scope of the matter; 2. The parties voluntarily disclose all information which is relevant and material to
the matter that must be decided; 3. The parties agree to use good faith efforts in their negotiations to rea[sic]
mutually acceptable settlement; 4. Each party must be represented by a lawyer whose representation terminates
upon the undertaking of any contested court proceeding; 5. The parties may engage mental health and financial professionals whose
engagement terminates upon the undertaking of any contested court proceeding; and
6. The parties may jointly engage other experts as needed. IACP Ethical Standards for Collaborative Practitioners Preamble Collaborative Practice differs greatly from adversarial dispute resolution practice. It challenges practitioners in ways not necessarily addressed by the ethics of individual disciplines. The standards that follow: 1) Provide a common set of values, principles, and standards to guide the Collaborative practitioner in his or her professional decisions and conduct, 2) Create a framework of basic tenets for ethical and professional conduct by the Collaborative practitioner, and 3) Identify responsibilities of Collaborative practitioners to their clients, to Collaborative colleagues, and to the public.
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General Standards 1. Resolution of Conflicts between ethical standards. 1.1 Any apparent or actual conflict between the Ethical Standards governing the
practitioner's discipline and these Standards should be resolved by the practitioner consistent with the Ethical Standards governing the practitioner's profession.
2. Competence. 2.1 A Collaborative practitioner shall maintain the licensure or certification required
by the practitioner's profession in good standing and shall adhere to the Ethical Standards governing the practitioner's discipline.
2.2 A Collaborative practitioner shall have completed a minimum of twelve hours of
Collaborative Practice/ Collaborative Law training or Interdisciplinary Collaborative training consistent with IACP Minimum Standards for Collaborative practitioners, prior to commencing a Collaborative case or engaging in Interdisciplinary Collaborative Practice.
2.3 A Collaborative practitioner shall practice within the scope of the Collaborative
practitioner's training, competency, and professional mandate of practice, as specified by the IACP Minimum Standards for Collaborative practitioners. The practitioner shall be mindful of the client's individual circumstances and the over-all circumstances of the case that may require the involvement of other professionals, both within and outside of the Collaborative process.
Comment As Collaborative practitioners experience a greater diversity in their client population they become confronted by more complexity in physical, psychological and emotional factors affecting the client. It is important for the practitioner to be able to recognize these factors, as they will necessarily influence the Collaborative process and the client's decision making. It is even more important for the practitioner to recognize the limits of his or her ability to effectively deal with these factors and with the client's response to them. In fully addressing the client's needs, interests and goals, the Collaborative practitioner must be willing to turn to other professionals both within and outside of the Collaborative process, such as mental health professionals, medical professionals, financial professionals, vocational specialists and possibly rehabilitation counselors in the areas of physical disability, substance abuse, and domestic violence.
3. Conflicts of Interest. 3.1. A Collaborative practitioner shall disclose any conflicts of interest as defined by
the practitioner's respective professional guidelines and Ethical Standards.
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Comment Upon full disclosure of a conflict of interest, the client(s) affected may waive the conflict in writing consistent with the practitioner's professional guidelines.
4. Confidentiality. 4.1 A Collaborative practitioner shall fully inform the client(s) about confidentiality
requirements and practices in the specific Collaborative process that will be offered to the clients.
4.2 A Collaborative practitioner may reveal privileged information only with
permission of the client(s), according to guidelines set out clearly in the Collaborative practitioner's Participation Agreement(s) or as required by law.
Comment The rules of confidentiality are among the most important core values of the legal and mental health professions. Those standards may be modified by the terms of the Collaborative practitioner's fee and/or Participation Agreement with the client(s), so long as the modifications are consistent with the ethical standards of the practitioner's discipline. A competent Collaborative practitioner will be knowledgeable regarding the requirements of his/her professional standards pertaining to the necessity of obtaining a client's informed consent, and shall provide sufficient information to enable the client to give informed consent.
5. Scope of Advocacy. 5.1 A Collaborative lawyer shall inform the client(s) of the full spectrum of process
options available for resolving disputed legal issues in their case. 5.2 A Collaborative practitioner shall provide a clear explanation of the Collaborative
process, which includes the obligations of the practitioner and of the client(s) in the process, so that the client(s) may make an informed decision about choice of process.
5.3 A Collaborative practitioner shall assist the client(s) in establishing realistic
expectations in the Collaborative process and shall respect the clients' self-determination; understanding that ultimately the client(s) is/are responsible for making the decisions that resolve their issues.
5.4 A Collaborative practitioner shall encourage parents to remain mindful of the
needs and best interests of their child(ren). 5.5 A Collaborative practitioner shall avoid contributing to the conflict of the client(s).
Comment This section highlights the special obligations undertaken by the Collaborative practitioner that specifically result from the unique nature of Collaborative Practice. Psychologists and social workers are free to recommend outcomes to
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their client(s) believed to be in the client(s') (or the clients' family's) best interest, provided that they take care to do no harm. The traditional model of lawyering includes advocacy by the lawyer for the client's position so long as that position is legally supportable. Thus, this section has particular impact for lawyers because it reflects the considerations underlying law society and bar association rules in a number of jurisdictions. For example, Rule 2.1 of the American Bar Association's Model Rules of Professional Conduct recognizes that the role of the attorney encompasses more than providing purely technical legal advice. As the Comment to Rule 2.1 explains, the attorney's advice can properly include moral, ethical, and practical considerations, and may indicate that there is more involved in resolving a particular dispute or even the client's entire case than strictly legal considerations. In Collaborative Practice, the practitioner specifically contracts with the client(s) to provide advice that recognizes a full range of options for dispute resolution and takes into consideration relationship and family structures when looking at the possible outcomes for the client(s).
6. Disclosure of Business Practices. 6.1. A Collaborative practitioner shall fully disclose to the client(s) in writing his/her
respective fee structure, related costs, and billing practices involved in the case. 6.2 A Collaborative practitioner shall be truthful in advertising his/her Collaborative
Practice and in the solicitation of Collaborative clients. 7. Minimum Elements of a Collaborative Participation and/or Fee Agreement. 7.1. A Collaborative Participation Agreement and/or Fee Agreement shall be in
writing, signed by the parties and the Collaborative practitioners, and must include provisions containing the following elements:
A. Pertaining to Full Disclosure of Information 1. No participant in a Collaborative case, whether a Collaborative
practitioner or a client, may knowingly withhold or misrepresent information material to the Collaborative process or otherwise act or fail to act in a way that knowingly undermines or takes unfair advantage of the Collaborative process;
2. If a client knowingly withholds or misrepresents information material to the
Collaborative process, or otherwise acts or fails to act in a way that undermines or takes unfair advantage of the Collaborative process, and the client continues in such conduct after being duly advised of his or her obligations in the Collaborative process, such continuing conduct will mandate withdrawal of the Collaborative practitioner and if such result was clearly stated in the Participation and/or Fee Agreement, the conduct shall result in termination of the Collaborative process.
3. In the event of a withdrawal from or termination of the Collaborative
process, the Collaborative practitioner shall notify the other professionals in the case.
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B. Prohibiting Contested Court Procedures 1. Undertaking any contested court procedure automatically terminates the
Collaborative process; 2. A Collaborative practitioner shall not threaten to undertake any contested
court procedure related to the Collaborative case nor shall a Collaborative practitioner continue to represent a client who makes such a threat in a manner that undermines the Collaborative process.
3. Upon termination of the Collaborative process, the representing
Collaborative practitioners and all other professionals working within the Collaborative process are prohibited from participating in any aspect of the contested proceedings between the parties.
Practice Protocols
8. Consent. 8.1 Each Collaborative practitioner shall obtain written permission from his/her
client(s) to share information as appropriate to the process with all other Collaborative professionals working on the case.
9. Withdrawal/Termination. 9.1 If a Collaborative practitioner learns that his or her client is withholding or
misrepresenting information material to the Collaborative process, or is otherwise acting or failing to act in a way that knowingly undermines or takes unfair advantage of the Collaborative process, the Collaborative practitioner shall advise and counsel the client that:
A. Such conduct is contrary to the principles of Collaborative Practice; and B. The client's continuing violation of such principles will mandate the
withdrawal of the Collaborative practitioner from the Collaborative process, and, where permitted by the terms of the Collaborative practitioner's contract with the client, the termination of the Collaborative case.
9.2 If, after the advice and counsel described in Section 9.1, above, the client
continues in the violation of the Collaborative Practice principles of disclosure and/or good faith, then the Collaborative practitioner shall:
A. Withdraw from the Collaborative case; and B. Where permitted by the terms of the Collaborative practitioner's contract
with the client, give notice to the other participants in the matter that the client has terminated the Collaborative process.
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9.3 Nothing in these ethical standards shall be deemed to require a Collaborative practitioner to disclose the underlying reasons for either the professional's withdrawal or the termination of the Collaborative process.
9.4 A Collaborative practitioner must suspend or withdraw from the Collaborative
process if the practitioner believes that a Collaborative client is unable to effectively participate in the process.
9.5 Upon termination of the Collaborative process, a Collaborative practitioner shall
offer to provide his/her client(s) with a list of professional resources from the Collaborative practitioner's respective discipline from whom the client(s) may choose to receive professional advice or representation unless a client advises that he or she does not want or need such information.
Ethical Standards Specific to Particular Collaborative Roles
10. Neutral Roles. 10.1 A Collaborative practitioner who serves on a Collaborative case in a neutral role
shall adhere to that role, and shall not engage in any continuing client relationship that would compromise the Collaborative practitioner's neutrality. Working with either or both client(s) or with their child(ren) outside of the Collaborative process is inconsistent with that neutral role.
A. A Collaborative practitioner serving as a neutral financial specialist in a
Collaborative case shall not have an ongoing business relationship with a Collaborative client during or after the completion of the Collaborative case, but may assist the clients in completing the tasks specifically assigned to them by the clients' written, final agreement. Such assistance may not include the sale of financial products or other services.
B. A Collaborative practitioner serving as a child specialist may assist the
family in divorce related matters for the child(ren). Such assistance may not include becoming the child(ren)'s therapist.
C. A Collaborative practitioner serving as a neutral coach may assist the
family in divorce related matters. Such assistance may not include acting as a therapist for one or both parties.
11. Coaches/Child Specialists. 11.1 A Collaborative practitioner who serves in the role of coach on a Collaborative
case shall not function as a therapist to the Collaborative practitioner's client after the case has ended. Coaches should remain available to continue to help the clients/family address specific divorce issues after the divorce is final. A therapist for a client shall not serve in the role of coach or child specialist on a Collaborative case involving a client with whom the therapist has acted in a therapeutic role.
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11.2 A Collaborative practitioner serving as a child specialist shall inform the child about the child specialist's role and the limits of confidentiality as appropriate, taking into account the child's age and level of maturity.
IACP Minimum Standards for Collaborative Practitioners (Adopted July 13, 2004; Revised October 22, 2014) The IACP Standards for Trainers, Trainings, and Practitioners are drafted with an awareness of the aggregate nature of learning. Knowledge comes from the interface between education and practical experience. Skill is acquired from the successive application of education to experience. With those principles in mind, these Standards should be understood as a point of departure in a continuing journey of education and practice for Collaborative practitioners and trainers. The IACP sets the following basic requirements for a professional to hold herself/ himself out as a practitioner who satisfies IACP Standards for Collaborative Practice in family related disputes. 1. General Requirements:
1.1 The Collaborative practitioner is a member in good standing of: IACP; and A local Collaborative Practice group. 1.2 The Collaborative practitioner accepts the IACP Mission Statement. 1.3 The Collaborative practitioner diligently strives to practice in a manner
consistent with the IACP Ethical Standards for Collaborative practitioners. 1.4 The trainings referred to in 2.2, 3.3 and 4.3 must be trainings that meet
the IACP Minimum Standards for trainings delivered by trainers who meet the IACP Minimum Standards for Collaborative Trainers.
2. IACP Minimum Standards for Collaborative Lawyer Practitioners:
2.1 Membership in good standing in the administrative body regulating and governing lawyers in the lawyer's own jurisdiction.
2.2 Completion of an Introductory Collaborative Practice Training or an
Introductory Interdisciplinary Collaborative Practice Training that meets the requirements of IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings. For practitioners who commenced Collaborative Practice prior to January 1, 2015, completion of training that met the requirements of the IACP Minimum Standards for a Collaborative Basic Training then in effect.
2.3 At least one thirty hour training in client centered, facilitative conflict
resolution, of the kind typically taught in mediation training (interest-based, narrative or transformative mediation programs).
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2.4 In addition to the above, an accumulation or aggregate of fifteen further hours of training in any of the following areas: Interest-based negotiation training Communication skills training Collaborative training beyond minimum twelve hours of Initial Collaborative training Advanced mediation training Basic professional coach training
3. IACP Minimum Standards for Collaborative Mental Health Practitioners:
3.1 Mental Health professional license in good standing in one of the following: PhD – Doctor of Philosophy Psy D – Doctorate of Psychology LCSW – Licensed Clinical Social Worker RSW – Registered Social Worker MFT – Marriage and Family Therapist RCC – Registered Clinical Counselor CCC – Canadian Clinical Counselor R Psych – Registered Psychologist C Psych – Chartered Psychologist Psychiatrist LEP – Licensed Educational Psychologist LPC – Licensed Professional Counselor or equivalent in state, province or country.
3.2 Background, education and experience in:
Family systems theory Individual and family life cycle and development Assessment of individual and family strengths Assessment and challenges of family dynamics in separation and divorce Challenges of restructuring families after separation For child specialists: expertise in child development, clinical experience with a specialty focus on children and an in-depth understanding of children's unique issues in divorce
3.3 Completion of an Introductory Collaborative Practice Training or an
Introductory Interdisciplinary Collaborative Practice Training that meets the requirements of IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings. For practitioners who commenced Collaborative Practice prior to January 1, 2015, completion of training that met the requirements of the IACP Minimum Standards for a Collaborative Basic Training then in effect.
3.4 At least one thirty hour training in client centered, facilitative conflict
resolution, of the kind typically taught in mediation training (interest-based, narrative or transformative mediation programs).
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3.5 In addition to the above, an accumulation or aggregate of fifteen hours of training in any or all of the following areas: Basic professional coach training Communication skills training Collaborative training beyond minimum twelve hours of initial Collaborative training Advanced mediation training
3.6 A minimum of three hours aimed at giving the mental health professional
a basic understanding of family law in his/her own jurisdiction. 4. IACP Minimum Standards for Collaborative Financial Practitioners:
4.1 Professional license or designation in good standing in one of the following: CFP – Certified Financial Planner CPA – Certified Public Accountant CA – Chartered Accountant CMA – Certified Management Accountant CGA – Certified General Accountant CHFC – Chartered Financial Consultant or such other equivalent license or designation in a state, province or country that requires a broad-based financial background and continuing education, and that is regulated by a governing body under a code of ethics.
4.2 Background, education and experience in:
Financial aspects of divorce Cash management and spending plans Retirement and pension plans Income tax Investments Real estate Insurance Property division Individual and family financial planning concepts
4.3 Completion of an Introductory Collaborative Practice Training or an
Introductory Interdisciplinary Collaborative Practice Training that meets the requirements of IACP Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings. For practitioners who commenced Collaborative Practice prior to January 1, 2015, completion of training that met the requirements of the IACP Minimum Standards for a Collaborative Basic Training then in effect.
4.4 In addition to the above, an accumulation or aggregate of twenty hours of
education in the financial fundamentals of divorce giving the financial professional a basic understanding of family law in his/her own jurisdiction, including:
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Divorce procedures Property – valuation and division Pensions and retirement plans Budgeting – income and expenses Child and spousal support Future income projections Financial implications of different scenarios for settlement
4.5 At least one thirty hour training in client centered, facilitative conflict
resolution, of the kind typically taught in mediation training (interest-based narrative or transformative mediation programs).
4.6 In addition to the above, an accumulation or aggregate of fifteen hours of
training in any or all of the following areas: Communication skills training Collaborative training beyond minimum twelve hours of initial Collaborative training Advanced mediation training Basic professional coach training Adopted by the Board IACP Introductory Training Standards.
INTERNATIONAL ACADEMY OF COLLABORATIVE PROFESSIONALS Interim Minimum Standards for Introductory Collaborative Practice Trainings and Introductory Interdisciplinary Collaborative Practice Trainings Adopted by the Board of Directors on October 22, 2014 1. Introduction. These standards are established with an awareness of the
aggregate nature of learning. Skill is acquired from actual application of education to experience over time and continuing education to enhance skill.
A trainer must be familiar with the following definitions, principles and standards adopted by the International Academy of Collaborative Professionals (IACP): Definition of Collaborative Practice Ethical Standards for Collaborative Practitioners Minimum Standards for Collaborative Practitioners Minimum Standards for an Introductory Collaborative Practice Training Minimum Standards for Collaborative Practice Trainers A training in the Collaborative Practice process satisfies the Minimum Standards for an Introductory Collaborative Practice Training or an Introductory Interdisciplinary Collaborative Practice Training when it complies with the requirements prescribed herein. This training will introduce the Collaborative Practice process while recognizing that proficiency or skill cannot be attained from this training alone. Trainers will familiarize participants with the theories, practices and skills so participants can begin to develop the self-awareness and understand the core requirements for effective Collaborative Practice.
2. Core Curriculum. Trainers will provide instruction to the participants on the
following subjects:
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(a) Process. The training will include the following subjects concerning process:
(1) The Collaborative Practice process as a structure to create working relationships to reach agreements and resolve disputes; (2) The range of process options and Collaborative Practice professional team configurations available to clients given their situation; (3) Organizational considerations in managing a Collaborative Practice matter, including –
(i) providing a structure, options, and protocols for the process; (ii) managing the case within the structure established by the professionals; (iii) setting expectations for clients and professionals; (iv) defining issues and determining tasks; and (v) planning, conferring and coordinating among professionals including pre-meeting and post-meeting briefings with the professionals and clients.
(4) Considerations when working as a team, including as an interdisciplinary team, and the contribution and role of each professional; (5) Recognition of the emotional, financial, and legal elements of the clients' conflict in all cases and how each element might impact the process; and (6) The applicability of local law to the process.
(b) Skills Required for the Collaborative Practice Professional. The training will include the following subjects concerning skills:
(1) The professional's responsibility to maintain a safe and productive environment for all;
(2) The professional's responsibility to educate clients how to engage
in productive behavior; (3) The impact of professional language and modeling behavior to
improve the clients' ability to effectively participate in the Collaborative Practice process;
(4) The professional's duty to assist the client in developing effective
communication skills to enhance the prospects for reaching agreements during the Collaborative Practice process and in the future;
(5) The professional's ability to effectively assess the capacity of the
client for effective participation in the Collaborative Practice process;
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(6) The professional's awareness of power dynamics and imbalances that may exist in the Collaborative Practice process, the impact on the process, and how the professionals can address such issues; and
(7) The professional's awareness of the need for assessment of
coercive and violent relationships. (c) Theory and Ethics. The training will include the following subjects concerning theory and ethics:
(1) Dynamics of interpersonal conflict. For trainings focused on domestic relations matters, divorce as a life transition and the dynamics of divorce, and for other family matters the impact of transitions on interpersonal dynamics and relationships;
(2) The future-focused decision-making orientation of Collaborative
Practice. For trainings focused on domestic relations matters, concepts related to restructuring families;
(3) The difference between facilitative negotiation, including interest-
based theory and methods as contrasted with positional negotiation, including rights-based theory and methods;
(4) Ethical considerations including the need to discuss carefully the
available process options with the client, informed consent, integrity, professionalism, diligence, competence, advocacy, and confidentiality;
(5) Recognition that each professional has different ethical
considerations; (6) The role of the law as one of multiple reference points for
decision-making. Other reference points include the interests and needs of each client, each client's sense of fairness, practical and economic realities, prior agreements, the goals of the clients, and cultural, emotional, and other factors; and
(7) IACP standards that are applicable to practitioners, including
Minimum Standards for Collaborative Practitioners and Ethical Standards for Collaborative Practitioners.
(d) Process Value and Costs. The training will include the following subjects concerning process value and costs:
(1) Understanding the broader interests which can be addressed in Collaborative Practice, including the long-term benefits of client self-determination, reaching a durable agreement, preserving relationships, and the comparative economic and relational consequences of process choices;
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(2) Conveying to clients the value of Collaborative Practice including, where applicable, the value of an interdisciplinary professional team, as distinct from and together with consideration of professional fees and financial cost variables of process choices;
(3) Making realistic statements to clients about financial realities of
dispute resolution processes, and the clients' contributions to cost containment throughout the process; and
(4) Awareness that individual professional choices and behavior can
have a significant impact on the efficiency, value, and cost of the process.
(e) Professional Teamwork. As used herein, a "team" can be any configuration of professionals, whether lawyers-only or interdisciplinary. The training will include the following subjects concerning professional teamwork:
(1) Professional team development, formation, configuration, and dynamics and the responsibility of each professional to establish and maintain a collaborative environment;
(2) The professional and interpersonal differences between working
as an independent professional and working as part of a Collaborative Practice team, including a team with members from different disciplines;
(3) The nature of the roles and work performed by each professional
discipline in an interdisciplinary Collaborative Practice matter, and how to maximize the knowledge and skills of each team member, both individually and together, in order to effectively work on a matter; and
(4) For professional team members from different disciplines, the
specific boundaries and ethics common to each profession, and the unique considerations these pose when working together as a team.
(f) Practice Development and Practice Groups. The training will include the following subjects concerning practice development and practice groups:
(1) Initiation of Collaborative Practice matters in the professional's unique communities, and the responsibility for each professional to develop his/her own practice;
(2) The benefits, structure and role of practice groups, and the
individual responsibility for involvement in practice group activities; (3) The importance of developing and expanding Collaborative
Practice skills through additional trainings, experience, and interactions with experienced practitioners, and how an
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Introductory Collaborative Practice Training serves solely as a foundation; and
(4) The role of IACP as the international organization that
promulgates standards and advances Collaborative Practice, and the resources IACP makes available to support practitioners.
3. Introductory Interdisciplinary Collaborative Practice Training.
(a) An Introductory Interdisciplinary Collaborative Practice Training shall meet all requirements of an Introductory Collaborative Practice Training plus the requirements of this Section 3. The core curriculum for an Introductory Interdisciplinary Collaborative Practice Training is the same as the core curriculum for an Introductory Collaborative Practice Training.
(b) In an Introductory Interdisciplinary Collaborative Practice Training in the
area of domestic relations, the faculty will be composed of a minimum of 1 professional from each of the legal, mental health, and financial disciplines. Otherwise, the faculty will be composed of those inter-disciplinary professionals appropriate to the subject matter.
(c) An Introductory Interdisciplinary Collaborative Practice Training should
include instruction of participants from each discipline by members of each of the other disciplines.
A. Training Organization and Procedures
(a) Duration. An Introductory Collaborative Practice Training will be a
minimum of 14 hours of classroom time (excluding break times) completed over no more than 90 days, and preferably over 2 or 3 consecutive days. Participants will attend in person.
(b) Methods. An Introductory Collaborative Practice Training should
include multiple learning modalities – interactive, experiential, and lecture elements. Examples include demonstrations, role-plays, small group exercises, interactive dialogues, fish bowls, and educational games.
(c) Materials. An Introductory Collaborative Practice Training should
include written materials that are useful for reference and practice by the Collaborative Practice practitioner after the training and will include the IACP Minimum Standards for Collaborative Practitioners and IACP Ethical Standards for Collaborative Practitioners.
(d) Evaluations. An Introductory Collaborative Practice Training
should include evaluations of the training and trainer(s) by the participants.
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INTERNATIONAL ACADEMY OF COLLABORATIVE PROFESSIONALS Interim Minimum Standards for Collaborative Practice Trainers Adopted by the Board of Directors on October 22, 2014 (as clarified Feb. 2015) These standards are established with an awareness of the aggregate nature of learning. Skill is acquired from the successive application of education to experience over time and continuing education to enhance skill. The IACP sets the following minimum standards for trainers after January 1, 2015, to conduct a training that meets IACP Minimum Standards for an Introductory Training: 1. Minimum Experience for Trainers: 1.1 A trainer will have completed at least 10 different Collaborative Practice matters
of which at least 6 will have been in the interdisciplinary model, accumulating at least 50 hours of practice in Collaborative Practice. For trainings that are focused solely on practice areas other than domestic relations, trainers will have completed at least 8 different Collaborative Practice matters, accumulating at least 50 hours of practice in the Collaborative Practice.
1.2 During the 5 years prior to first conducting trainings, a trainer will have taken
primary responsibility for preparing and making educational presentations that total at least 15 hours in presentation time, with 1 presentation lasting no less than 3 hours and each other presentation lasting no less than 45 minutes.
1.3 Prior to conducting trainings, a trainer will have attended a minimum of two
Introductory Collaborative Practice trainings. At least one such training will be introductory training in the interdisciplinary model to provide the trainer the experience of observing the principks,[sic] methodology and practice of teaching.
2. Minimum Training for Trainers: 2.1 A trainer will have satisfied all training requirements set forth in the Minimum
Standards for Collaborative Practitioners. 2.2 A trainer will have completed at least 10 hours of client-centered facilitative
conflict resolution training beyond those set forth in the Minimum Standards for Collaborative Practitioners. If a trainer is conducting trainings in the domestic relations area, such training completed will include a substantial amount pertinent to domestic relations dispute resolution.
2.3 A trainer will have a minimum of 9 additional hours of relevant education on
advanced Collaborative Practice topics. 3. Licensing/Certification:
A trainer will be licensed or certified for his/her field of practice, and be in good standing and not restricted in practice or subject to any conditions or monitoring of his or her conduct by the licensing board governing the trainer's field of practice. A trainer will have no public record of discipline of any nature within the last 5 years.
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4. IACP Training Standards: A trainer will be familiar with the Minimum Standards for an Introductory Training and have the skills to conduct that training.
5. Skills Training: A trainer shall be qualified by education, training, and
experience to inform and educate about skills relative to communication, problem-solving, facilitative dispute resolution, mediation, interpersonal relationships, conflict management and resolution, interest-based negotiation, teamwork, and process. A trainer should attend educational courses or workshops that emphasize adult learning principles. A trainer should be able to teach adults through meaningful dialogue and didactic presentations, set up demonstrations, structure role plays, and employ other experiential learning models.
6. Knowledge about Area of Dispute: A trainer will have an appropriate
understanding of the general area to which the dispute relates, including, a recognition that financial decisions may have far-reaching and long-term financial and tax implications and, when training in the domestic relations area, knowledge of the grief process, child development, and the dynamics of the divorcing/ restructuring family.
7. Particular Professions: In addition to the above, those offering training in
particular disciplines as part of the Collaborative Practice process will satisfy the following:
7.1 Attorney:
• A minimum of 5 years in active practice, including 5 years of experience in the particular discipline which is the subject of the training (e.g., 5 years of domestic relations experience for Collaborative Practice trainings dealing with divorce and separation).
7.2 Child Specialist:
• A minimum of 5 years clinical experience with specialty focus on children. • In-depth understanding of children’s unique issues in domestic relations.
7.3 Financial:
• A minimum of 5 years in financial consulting with significant experience in the financial and tax aspects of the general area to which the dispute relates.
7.4 Divorce Coach:
• A minimum of 5 years of clinical experience focusing on couples and families, and in-depth knowledge of: 1) short-term therapy and coaching models, 2) divorce and the psychosocial impact of divorce on families, and 3) basic elements and guidelines for creating parenting plans. In
depth knowledge of family dynamics and systems theory and child development.
7.5 Other Professionals:
• A minimum of 5 years experience in their field.
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8. Trainers in the Interdisciplinary Model of Collaborative Practice: The interdisciplinary model of Collaborative Practice for domestic relations matters includes the mental health, financial, and legal disciplines as part of the Collaborative team. In addition to the requirements above, each trainer in the interdisciplinary team model will have knowledge of team interactions and specific issues unique to the interdisciplinary model.
9. Checklist. To assist potential trainers in assessing whether they meet the
requirements, the following checklist is provided as a convenience:
Summary of IACP Trainer Requirements • 50 hours of Collaborative Practice work. • 10 completed Collaborative matters, 6 of which are interdisciplinary. For trainings
focused solely on non-domestic relations areas, 8 completed Collaborative matters. • 15 hours of educational presentations in last 5 years of which one is at least 3 hours
in duration, and the remainder at least 45 minutes each. • Attend at least 2 Introductory trainings, at least one of which is an Interdisciplinary
Introductory Collaborative Practice training. • 10 additional hours of facilitative dispute resolution training in addition to the 30
hours required for all Collaborative Practice professionals. • 9 hours additional education on relevant advanced Collaborative Practice topics. • A trainer should attend educational courses or workshops that emphasize adult
learning principles.
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A MEDICAL ANALOGY From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation,
by Pauline H. Tesler. Copyright 2016 by the American Bar Association. Reproduced with permission.
The legal profession is experiencing dramatic changes resembling the transformation of the health care profession from a doctor-controlled to a patient-centered model that has taken place in the past 20 years or so. We can learn a lot about where we are going, and where we need to go, by analogy to the medical profession. • Family lawyers would do well to adopt the first principle of the Hippocratic oath:
"First, do no harm."
• In a medical emergency we must have high-quality emergency rooms and intensive care units available to deal with crises. But they are bad places to go for primary health care. In a legal emergency, we must have high-quality courts and litigating lawyers available to deal with the crisis. But courts are terrible places of first resort for resolution of divorce-related issues.
• We family lawyers might well consider adopting by analogy the medical principle
of conservative treatment: start with offering the least invasive, least intrusive professional services that could handle the problem.
• We family lawyers need to hold ourselves to rigorous standards of informed
consent when we advise clients about the risks associated with the dispute-resolution options available to them – including litigation – just as we expect physicians to explain fully the medical options and associated risks and to allow their patients to make fully informed choices for treatment.
THE COLLABORATIVE CONFLICT-RESOLUTION SPECTRUM AND THE SHADOW
OF THE LAW
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COLLABORATIVE AGENDA MANAGEMENT AND CONFLICT MANAGEMENT IN THE SECOND ACT
From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, by Pauline H. Tesler. Copyright 2016 by the American Bar Association.
Reproduced with permission.
Collaborative lawyers manage four-way meetings for several purposes: 1. To avert needless anxiety and address conflict constructively if it arises. 2. To build client competency and confidence in negotiations. 3. To build a congruent understanding of all information important for resolving each
issue – including goals, priorities, values, and information about the law – before resolution is addressed.
The clients control the substance of the agreements reached, but the lawyers are responsible for the procedure, including pacing, tone, sequence, planning, and follow-through. Some simple guidelines will help you manage your four-way agendas: • Always plan the specific content of the four-way agenda in advance and be sure
the lawyers are in agreement about the agenda.
• Always review the agenda for the forthcoming four-way in advance, with the other lawyer and also at your pre-meeting with your client.
• Never bring into a four-way meeting an issue that is not on the agenda. Even an
emergency can be discussed privately, before the meeting, with your collaborative colleague, and collegial process management about when and how to address the issue can take place.
• Never be the bearer of bad tidings to the other party. Never force your
collaborative colleague to bear bad tidings to your client. Use pre-meetings for this purpose so that bad news or criticism is brought to the client by his or her own lawyer – ideally before the four-way.
• Highlight all acts of grace and generosity. Praise civility. Use "stop-motion" to
invite the participants to take time to acknowledge important moments of collaborative cooperation.
• Plan agendas to build on success. Include in an agenda only what the lawyers
are confident the clients are ready to address. Start with easy issues to build momentum and confidence. Save hard issues for later.
• Sometimes the only thing that can be agreed upon is the date for the next
meeting. Sometimes that is a big accomplishment.
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• Invite the other party to call you to account if you revert to adversarial or contentious mannerisms. Apologize quickly, sincerely, and frequently for your errors. Take more than half of the responsibility for collective missteps.
• Always discuss the agenda for the next four-way before concluding a four-way
meeting.
• Always have several future four-ways on the calendar before adjourning a four-way.
• Always have one of the lawyers prepare and distribute a post-meeting
memorandum summarizing what was accomplished, what was agreed upon, what was promised, who has what homework assignments, and what comes next.
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ADVISING CLIENTS ABOUT THE LAW From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation,
by Pauline H. Tesler. Copyright 2016 by the American Bar Association. Reproduced with permission.
As lawyers (and unlike mediators), part of our responsibility is to ensure that our clients understand their legal rights as they negotiate collaborative agreements. But collaborative lawyers put much thought into when and how that legal advice will be provided, so that the clients understand what might happen if the matter were litigated in the local courts, without the legal context being accorded dispositive power over the negotiations or outcomes. For traditional, rights-bounded lawyers, the only concerns worth discussing with a client are those about which motions can be filed and court orders can be issued. Good collaborative lawyers take a more expansive view of the task. We know that our clients care greatly about many matters that lie outside the jurisdiction of the family court. When we negotiate collaborative agreements, we can include resolution of issues for which no legal remedies would be available in court. That being so, our clients may make trade-offs in collaborative negotiations that yield outcomes on the legally cognizable issues markedly different from what might usually happen in court. In return, they may gain outcomes that no judge could ever order. Traditional lawyers may look at the resulting agreements with horror, because the client did not insist on getting every dollar or every asset that a judge might have awarded, while ignoring the nonquantifiable or nonjusticiable goals valued greatly by the client that have been met in the collaborative process. When advising clients about the role of the law in collaborative matters, collaborative lawyers generally include contextual information such as this, which lawyers are well aware of and clients are not: The family courts don't dispense justice, and trials are not about winning or losing. What the courts dispense is certainty. If you and your spouse – with the help of the collaborative lawyers and other collaborative professionals – are unable to craft an individualized, custom-made solution about the issues affecting your family after the divorce, the courts are available to give you certainty and closure. But the judge can never know as much as you know about the needs of the family and will never have as much time or interest as you do in crafting solutions that will work. Any couple with the desire to do so can do better than any judge in designing solutions that will work and that will last. If you make your own decisions about the post-divorce family, you keep control over your finances and your parenting where it was when you lived together – with yourselves. Furthermore, the judge is required to work with a straitjacket and blinders on, called the Family Code. This is a collection of laws made by elected officials who may know little or nothing about family dynamics and who may have been lobbied by vocal special interests. We need to know about those laws, and we can apply them here if they seem to produce the results you both prefer. As a last resort, the court can do it for you. Think of it as the emergency room. If you value privacy and control over your own destiny, keep decision-making power here; don't give it away and don't put on the straitjacket here that the judge is required to wear in court.
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HELPING YOUR CLIENT CONNECT WITH HIGHEST INTENTIONS FOR THE DIVORCE
From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, by Pauline H. Tesler. Copyright 2016 by the American Bar Association.
Reproduced with permission.
The essence of the collaborative process for clients is that it evokes, supports, and works to achieve both spouses’ highest intentions for the divorce and for the post-divorce restructured family. But our clients will sometimes be so preoccupied with the tensions and fears associated with the early stages of divorce that they become temporarily overwhelmed with immediate, short-term concerns. Here is a technique for recalibrating your client’s perspective from the immediate grievances and irritations of the separation period to a broader focus on highest intentions for the future. Remember that you can be completely transparent about this. Tell your client what you are doing and why you are doing it. • Ask your client's permission to do a simple exercise with you that will give the
client a vivid sense of what it means for you to represent the client's highest-intentioned self rather than the client's shadow self, as follows:
• Ask your client to make himself or herself physically comfortable and to close his
or her eyes and take a few deep breaths.
• Ask the client to spend a few minutes remembering some of the positive aspects of the marriage. Perhaps it might be the honeymoon, the birth of a child, or a time when the spouse was particularly supportive.
• Then ask the client to look a bit further back, to the time that the couple decided
to marry, remembering the proposal and the acceptance, and the hopes that both had for their marriage and life together. Ask the client to recall his or her own positive feelings toward the other spouse and the commitments and positive intentions that the client had for how he or she would behave during the marriage toward the other.
• While holding the memory, ask the client to imagine that some trusted counselor
or friend back then had said, "Though you consider the possibility unthinkable at this moment, I want you to know that divorces do happen and that divorce could possibly happen to you and your spouse sometime down the road. Loving and respecting your spouse as you do at this moment, what promises and commitments can you make about how you will behave if you should have to divorce someday in the future?"
• After your client has spent a few moments imagining what you have suggested,
invite your client to open his or her eyes. Tell him or her that keeping that image in current awareness will help the client act with dignity and civility during the divorce process – that remaining aware of that perspective will help the client move through the divorce process with integrity and help preserve a memory of that which was valuable in the relationship that is ending. Ask the client whether he or she would like to be reminded of this perspective when – inevitably – strong emotions arise during the divorce process.
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BASIC COMMUNICATIONS SKILLS FOR LAWYERS AND CLIENTS From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation,
by Pauline H. Tesler. Copyright 2016 by the American Bar Association. Reproduced with permission.
SPEAKING SKILLS: • Make "I" statements, not "you" statements.
• State what you observe with your senses. (For example, "I noticed that twice this
month times that were scheduled for the children to be with you simply did not happen.")
• State how you feel about what you observe. (For example, "I feel worried and
unhappy about this.")
• State what you think about what you observe. (For example, "I think it is bad for the children to have scheduled time with you that does not happen.")
• State what you would like to do about what you observe. (For example, "I want
you to propose a schedule that could be put into place for visits that would not result in the children being disappointed in that way.")
• Avoid using the terms "fair" and "unfair." Words like "acceptable," "workable," and
"agreeable," and their converses, "unacceptable," "unworkable," and "not agreeable" are preferable in that they allow room for reasonable people to differ.
LISTENING SKILLS: • Listen fully while the other person speaks; avoid thinking about your reply until
the speaker has finished.
• Ask for more information on any points that aren't completely clear to you.
• Ask genuinely curious questions that seek information you don't already know, in a neutral fashion that doesn't telegraph your thoughts or feelings. (For example, "What did you mean when you said?" or "Are you interested in knowing what Mary thinks about the idea you are proposing?")
• Check out how accurately you understand what the speaker said by restating
your understanding in different words.
• Ask for more information.
• Keep doing these steps until the speaker agrees that you have fully understood what was said and what was meant.
• Remember, you can say "I understand" without meaning "I agree."
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ROADMAP OF A COLLABORATIVE CASE DIVORCE COLLABORATIVE VERSUS LITIGATION
From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation, by Pauline H. Tesler. Copyright 2016 by the American Bar Association.
Reproduced with permission.
Collaborative Litigation
Who Controls the Process
You and your spouse control the process and make final decisions
Judge controls process and makes final decisions
Degree of Opposition
You and your spouse pledge mutual respect and openness
Court process is based on an adversarial system
Cost Costs are manageable, usually less expensive than litigation; team model is financially efficient in use of experts
Costs are unpredictable, can escalate rapidly, and can continue after trial in post-judgment litigation
Timetable You and your spouse create the timetable
Judge sets the timetable, often with delays resulting from crowded court calendars
Use of Outside Experts
Jointly retained specialists provide information and guidance, helping you and your spouse develop informed, mutually beneficial solutions
Separate experts are hired to support the litigants' positions, often at great expense to both parties
Involvement of Lawyers
Your lawyers work toward a mutually created settlement
Lawyers fight to win, but someone loses
Privacy The process and discussion or negotiation details are kept private
In many jurisdictions, dispute becomes a matter of public record and sometimes media attention
Facilitation of Communication
Team of collaborative practice specialists educate and assist you and your spouse to communicate more effectively with each other
No process designed to facilitate communication
Voluntary vs. Mandatory
Voluntary Mandatory if no agreement
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Lines of Communication
You and your spouse communicate directly with the assistance of members of your team
You and your spouse negotiate through your lawyers
Court Involvement Outside court Court-based
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SOME GROUND RULES DURING THE COLLABORATIVE LAW PROCESS From Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation,
by Pauline H. Tesler. Copyright 2016 by the American Bar Association. Reproduced with permission.
While you and I cannot control how the other participants conduct themselves in negotiations, we can conduct ourselves in ways that have been proven to increase the chances of reaching agreement. Behaving in this way encourages similar behaviors from your spouse and his or her lawyer. 1. We will take turns speaking and not interrupt each other. 2. We will speak directly to one another rather than about one another, calling each
other by our names, not "he" or "she." 3. We will not blame, attack, or engage in put-downs and will ask questions for the
purposes of gaining clarity and understanding only, not to score points or win arguments.
4. We will avoid taking hard positions and instead will express ourselves in terms of
personal needs and interests and the goals and outcomes we would like to achieve.
5. We will listen carefully and respectfully in order to understand better the other
person's needs and interests and will not substitute planning our reply for real listening.
6. We recognize that even if we do not agree, each of us is entitled to respect for
his or her own perspective. 7. We will not dwell on things that did not work in the past, but instead will focus on
the future we would like to create. 8. We will make a sincere effort to avoid unproductive arguing, venting, and
narratives, and we agree to work at all times during negotiations toward the most constructive and mutually acceptable agreement possible.
9. We will speak up if something is not working well in negotiations. 10. We will request a break when we need one, and will not remain at the negotiating
table in a state of mind that is inconsistent with constructive problem-solving efforts.
11. While in negotiations, we will refrain from preemptive maneuvers, threats,
ultimatums, and unilateral power plays. 12. We will take good physical and emotional care of ourselves so that each of us
can participate fully and effectively in resolving our issues. (Adapted from ground rules in wide use in the San Francisco Bay Area originally drafted by the Collaborative Council of the Redwood Empire.)
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THE ACADEMY OF NORTHERN KENTUCKY COLLABORATIVE PROFESSIONALS COLLABORATIVE PARTICIPATION AGREEMENT
The undersigned, ______________________ and, _________________, (referred to individually as "party," or collectively as "the parties") hereby agree it is their intention to resolve their family law matters through the Collaborative Family Law Process.
WHEREAS, the parties desire to attempt to reduce the negative emotional, social
and financial consequences of the end of their marriage, and in cases involving children, to promote a caring, loving and involved relationship between both parents and their children, and to keep their children out of their differences; and
WHEREAS, the parties have each retained a collaboratively-trained family lawyer
to represent them in the Collaborative Family Law Process; and NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, it is hereby agreed by and between the parties as follows: I. Beginning and Ending the Collaborative Process
The parties agree that the Collaborative Family Law Process under this participation agreement will begin when this agreement is signed, and that it will conclude, (1) upon resolution of their collaborative matter as evidenced by a signed settlement agreement, separation agreement, or other written record of agreements made during the collaborative process, and the entry of a decree of dissolution or final agreed order, or (2) upon termination of the collaborative process as discussed in Article VI. II. How It Works
1. During this collaborative process, the parties agree to make timely, full, candid, and informal disclosure of information related to their collaborative matter without formal discovery. The parties further agree that they shall promptly and continuously update all information provided.
2. During the Collaborative Family Law Process, the parties promise to
conduct themselves in good faith, honestly, in full cooperation, and respectfully towards one another and towards all nonparty participants alike.
3. During the Collaborative Family Law Process, the parties agree to
maintain the status quo, by maintaining insurance coverage and beneficiary designations, by preserving assets, by not incurring unnecessary debt, and by not changing any financial or household (parenting) arrangements that may affect the other party or their children; all unless there is an agreement to do so.
4. A party will notify the collaborative family lawyers in advance of making
any extraordinary expenditure so there can be discussion and an agreement on the
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expenditure. If time is of the essence, the parties and the collaborative family lawyers will address the expenditure issue as soon as possible.
5. The parties understand that the effectiveness of the Collaborative Family Law Process and its successful conclusion greatly depends upon the parties, the collaborative family lawyers, and all nonparty participants working together and being prepared for all meetings.
6. Any mistakes made by either party, by any nonparty participant, or by a
collaborative family lawyer will be immediately identified and corrected. Neither party, nor any nonparty participant or collaborative family lawyer will take advantage of any mistake, at any stage of the Collaborative Family Law Process.
7. The parties understand that by choosing the Collaborative Family Law Process they are waiving rights that would be available to them through the litigation process. These rights are: (a) the right to have their spouse respond to formal discovery requests (i.e., interrogatories, requests for production of documents, depositions, or admissions); (b) the right to have a judge decide the value of their marital property; (c) the right to have a judge decide how their marital property is divided between them; (d) the right to have a judge decide all support/cash flow issues; and (e) if there are minor children, the right to have a judge decide where and with whom the children reside. Ill. Enforceability
If the parties make either an interim agreement or a final agreement that they wish to be enforceable, the agreement must be in writing and signed by the parties and by their collaborative family lawyers. If either party withdraws from the Collaborative Family Law Process, any written agreements signed and entered into by the parties during the collaborative process may be presented by either party or their new non-collaborative litigation lawyer to a court of competent jurisdiction. IV. Nonparty Participants
1. The parties may jointly retain nonparty participants, such as family specialists, financial specialists or other professionals whom they determine may be of assistance in resolving their matter. The parties expressly acknowledge and consent that the nonparty participants and the collaborative family lawyers, in their efforts to coordinate the collaborative process, may or may not, from time to time, conduct private conversations between themselves in order to manage the Collaborative Family Law Process. Further, the parties acknowledge that the advice of nonparty participants is not binding upon the parties.
2. Nonparty participants from the mental health profession (known generally
as "family specialists") do not provide individual therapy or family therapy during the Collaborative Family Law Process. The family specialist's role is advisory. The family specialist may (1) suggest parenting arrangements and schedules; (2) help parties with the emotional aspects of the ending of their marriage/relationship; (3) facilitate communications during meetings and between meetings; (4) assist the parties in their communications with each other; (5) assist with co-parenting issues; and (6) assist with the organization of the Collaborative Family Law Process.
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3. Nonparty participants from the financial services or accounting fields (known generally as "financial specialists") do not provide individual financial planning, investment strategy, insurance products, or accounting services during the Collaborative Family Law Process. The financial specialist's role is advisory. The financial specialists may (1) assist with suggested property division options taking into account tax consequences; (2) assist in calculating cash flow options; (3) assist with asset valuation issues, including real estate appraisers and business valuators; and (4) assist with financial forecasts.
4. Nonparty participants hired in this Collaborative Family Law Process will
be identified in an addendum to this agreement.
V. The Collaborative Family Lawyer's Role
1. Each party's collaborative family lawyer represents only their own client in the Collaborative Family Law Process, even though both collaborative family lawyers will be working as part of the collaborative team.
2. The parties acknowledge that they have been informed of, are aware of,
and fully understand the various process options available to them for resolution of their family law matters (including litigation, mediation, arbitration, and traditional non-collaborative negotiation/settlement processes). With this knowledge, the parties are knowingly and voluntarily selecting to use the Collaborative Family Law Process.
3. Each party acknowledges that their collaborative family lawyer, as well as
any nonparty participant, is engaged solely for the limited purpose of assisting the parties in reaching settlement in their family law matters through the Collaborative Family Law Process.
4. Each party acknowledges that each has their own individual fee
agreement with their respective collaborative family lawyer. The Collaborative Family Law Process does not modify the party's individual contractual payment obligation to their collaborative family lawyer. Nonetheless, payment of attorney fees may be a part of the final resolution. VI. Terminating the Collaborative Family Law Process
1. The parties acknowledge that the collaborative family lawyers identified in this agreement (or any lawyer in a law firm with which the collaborative family lawyer is associated or any lawyer in an office share arrangement with the collaborative family lawyer) shall be disqualified from representing either party in litigation concerning the same or similar issue, which is the subject matter of this collaborative matter.
2. The parties agree that in any court proceeding they will not request,
subpoena, or summons a collaborative family lawyer or a nonparty participant that is a member of this collaborative team to make disclosures or to testify as a witness.
3. The parties agree that participation in the Collaborative Family Law
Process is voluntary and that either party has the unilateral right to terminate the process, with or without cause, at any time. Termination of the Collaborative Family Law Process occurs, (a) when a party through their collaborative family lawyer gives written
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notice to the other collaborative family lawyer that the process has been terminated by their client; or (b) when a party discharges their collaborative family lawyer or the collaborative family lawyer withdraws from further representation of a party. On the other hand, if a nonparty participant is discharged or withdraws from the case, the Collaborative Family Law Process does not terminate.
4. The parties may agree that the Collaborative Family Law Process continues, if prior to the expiration of thirty days after a discharge or withdrawal of a collaborative family lawyer, the unrepresented party engages a successor collaborative family lawyer and the parties consent in writing to continue the process. A new participation agreement will be signed with the new collaborative family lawyer.
5. If the Collaborative Family Law Process terminates and there has been a
prior filing in court to commence the legal proceeding, the parties acknowledge the necessity of the collaborative family lawyers to file a motion to withdraw from the family law case.
6. Following termination of the Collaborative Family Law Process, neither
party may take any action in the court system until thirty days after termination. This means neither party may file any court documents until the expiration of thirty days following the termination of the Collaborative Family Law Process. Notwithstanding the above, if there is an emergency requiring immediate action before the thirty day period expires, then that emergency court proceeding will not be a breach of this contract.
7. Any information gathered or developed during the Collaborative Family
Law Process may be transferred to a successor lawyer. The Academy of Northern Kentucky Collaborative Professionals has approved this Collaborative Participation Agreement, and the provisions of this Agreement have not been modified or altered. If the parties and their collaborative family lawyers wish to agree to additional terms, not inconsistent with the terms set forth herein, they shall set them forth in an amendment to this agreement. In this Collaborative Family Law Process, _____________________________ will be represented by _____________________________ and _____________________ will be represented by ______________________________________. ___________________________ __________________ Party Date ___________________________ __________________ Party Date
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____________________________, confirm that I will represent ___________________ in the collaborative process hereunder. ___________________________ ____________________ Attorney Date ____________________________, confirm that I will represent ___________________ in the collaborative process hereunder. ___________________________ ____________________ Attorney Date
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COLLABORATIVE FAMILY LAW PARTICIPATION AGREEMENT
I. INTRODUCTION The essence of collaborative law is the shared belief of the participants that it is in the best interest of parties and their family to commit themselves to resolving their differences with minimal conflict. Therefore, the undersigned seek to adopt a conflict resolution process that does not rely on court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism. One of the major goals in adopting the collaborative law process is to maximize settlement options for the benefit of all parties and minimize, if not eliminate, the negative economic, social, and emotional consequences of protracted litigation for the participants and their families. Both parties' objective is to dissolve their marriage in the most amicable way possible. Both parties assert that it is in their own best interest and that of the children to have family peace. The parties have retained collaborative lawyers to assist them in reaching this goal, and represent them in conformance therewith. II. NO COURT INTERVENTION By electing to treat this family law case as a collaborative law matter, we, as parties and attorneys, are committing ourselves to resolving this matter without court intervention. The parties and attorneys agree to give complete, full, honest and open disclosure of all relevant information, whether requested or not, and to engage in informal discussions and conferences for the purpose of reaching a settlement of all issues. All attorneys, accountants, therapists, appraisers and other consultants retained by the parties will be directed to work cooperatively to resolve issues without resort to litigation. III. LIMITATIONS OF COLLABORATIVE LAW PROCESS In electing the collaborative law process, we understand there is no guarantee of success. We further understand we cannot eliminate concerns about the disharmony, distrust, and irreconcilable differences which have led to the current conflict. While we are intent on striving to reach a cooperative and open solution, success will ultimately depend on our own commitment to making the process work. It is consistent with the collaborative law process that the parties act in their own best interest. Cooperation does not mean that a party must put the interests of others ahead of the self (except where it is strategically advantageous to do so). Neither party nor their lawyer will use the Court during the collaborative law process unless it is mutually agreed. IV. PARTICIPATION WITH INTEGRITY As participants in the collaborative law process, we are concerned about protecting the privacy, respect and dignity of all involved, including the parties, attorneys and consultants.
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Each participant shall uphold a high standard of integrity, and specifically shall not take advantage of inconsistencies or miscalculations of the other, but shall disclose them and seek to have them corrected. Prior to engaging in any attempts to resolve this matter on a collaborative law basis, the parties' attorneys will have completed an initial program of collaborative law training. V. COMMUNICATION All of those involved in the collaborative process will make every effort at communication which is respectful and constructive, trying at all times to focus on the economic and parenting issues and the constructive resolution of these issues. Settlement discussions will typically take place during meetings with counsel present or if by agreement the parties discuss matters outside the presence of counsel, discussion will not be in the presence of the parties' children. Specifically, the parties agree that settlement discussion in the presence of the children will only take place by mutual agreement or with the advice of a child specialist. VI. EXPERTS AND CONSULTANTS In selecting outside help, the parties are encouraged to retain joint experts or consultants for the express purpose of minimizing expenses of the process. Selection of a joint expert or consultant shall not obligate the parties to accept the report of opinion of that expert. Each party may retain separate or additional experts as desired in developing information relevant to reaching agreement. In the event a party retains a separate expert, any such expert or consultant shall be directed to follow the spirit and direction of the principles in this Agreement. If desirable, the parties may request the experts and consultants to collaborate with one another, meet and confer, and where appropriate, render joint statements or opinions on the issues in dispute. In resolving issues about sharing the enjoyment and responsibility of any minor children of the parties, the parties, attorneys and therapists shall make every reasonable effort to reach amicable solutions that promote the best interests of the children. If necessary, the parties agree to act quickly to mediate and resolve all differences related to the children in a manner that will promote a caring, loving and involved relationship between the children and each parent. Unless the parties otherwise agree, if the parties select and retain a joint expert to assist in the collaborative law process, neither party may retain such expert, nor may such expert participate, in any subsequent litigation between the parties. VII. NEGOTIATION IN GOOD FAITH The parties are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement. Each is encouraged to speak freely and express his or her needs, desires, and options without criticism or judgment by the other. Although the parties should be informed by their attorneys and consultants about, and may discuss with each other, the litigation alternatives and the result they may attain, neither party will use the threat to withdraw from the process or to go to Court as a means of achieving a desired outcome or forcing a settlement.
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No formal discovery procedure will be used unless specifically agreed to by the parties. The parties acknowledge that by using informal discovery, they are giving up certain investigative procedures and methods that would be available to them in the litigation process. They give up these measures with a specific understanding that both parties have made full and fair disclosure of all assets, income, debts and other information necessary for a principled and complete settlement. Participation in the collaborative law process, and the settlement reached, is based upon the assumption that both parties have acted in good faith and have provided complete and accurate information to the best of their ability. On request the parties will be required to sign a sworn statement making full and fair disclosure of their income, assets and debts. Either party shall execute any release requested by the other for information. In the event a party or attorney deems it necessary or unavoidable that contested, unilateral pleadings be filed with the Court, each attorney identified herein, and each attorney's firm, will be disqualified from continuing to provide representation to such attorney's client or receive compensation for work performed on behalf of such client in this matter. VIII. ENFORCEABILITY OF AGREEMENTS In the event that neither party requires a temporary agreement for any purpose, the agreement will be put in writing and signed by the parties and their lawyers. If neither party withdraws from the collaborative process, the written agreement may be presented to the Court as a basis for an Order, which the Court may make retroactive to the date of the written agreement. Similarly, once a final agreement is signed, if a party should refuse to honor it, the final agreement may be presented to the Court in any subsequent action. In any settlement agreement reached during the collaborative law process, the attorneys and the parties may wish to recite the material facts upon which the settlement is based. IX. DISQUALIFICATION BY COURT INTERVENTION Unless otherwise agreed, prior to reaching final agreement on all issues, no further proceedings or motions will be filed except by agreement of the parties or upon resolution of the case. Neither party, nor the party's lawyer, will use the Court during the collaborative law process unless it is mutually agreed. For example, where a court order is necessary to maintain the status quo, the parties may seek such relief in Court notwithstanding the continuation of the collaborative law process. The parties understand that their collaborative attorney's representation is limited to the collaborative law process. Thus, while each attorney is the adviser of his or her client and serves as the client's representative, counselor, advocate and negotiator, the parties mutually agree that they will not authorize their attorneys to represent them or appear as counsel for them with respect to this matter in any Court or on any Court filing other than a mutually filed Petition for Dissolution or as mutually agreed. In the event a party or attorney deems it necessary or unavoidable that contested, unilateral pleadings be filed with the Court, each attorney identified herein and each attorney's firm, will be disqualified from continuing to provide representation to such attorney's client or receive compensation for work performed on behalf of such client in
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this matter. Neither attorney shall assist the client or new counsel in anyway in the litigation or to help posture the case for same. X. RIGHTS AND OBLIGATIONS PENDING SETTLEMENT Although the parties have agreed to work outside the judicial system, the parties agree that: 1. Neither party may dispose of any assets except (i) for the necessities of life or for the necessary generation of income of preservation of assets, (ii) by an agreement in writing, or (iii) to retain counsel to carry on or contest this proceeding; 2. Neither party may harass the other party; 3. All currently available insurance coverage must be maintained and continued without change in coverage or beneficiary designation; 4. Neither party shall permanently remove the children from the jurisdiction of the Court (County) without the consent of the other; 5. Neither party shall incur debts for which the other is liable, except for necessities or in the ordinary course of business; 6. Each party will notify the other in advance of any extraordinary expenditures required to maintain the necessities of life or generate income; 7. Violation of any of these provisions may result in sanctions by the Court. XI. POST-DECREE The parties and their lawyers acknowledge that this Agreement terminates upon the entry of the decree of dissolution. The parties may choose to sign another collaborative agreement for post-decree matters. XII. CONFIDENTIALITY Unless otherwise agreed by the parties, and except as provided in Section VIII, no statement, comment, or disclosure made by any party or attorney during the collaborative law process shall be disclosed to any court for any purpose. This rule is not intended to preclude the admissibility of information that is properly obtained through discovery in subsequent litigation. During the collaborative process, no material information shall be withheld from the opposing party. Should such information be withheld, the attorney aware of same shall be required to invoke the withdrawal provisions below. XIII. WITHDRAWAL OF ATTORNEY If either attorney deems it appropriate to withdraw from the case for any reason, they agree to do so immediately by a written notice to the other party and his or her attorney. This may be done without terminating the status of the case as a collaborative law case.
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The party losing his or her attorney may continue in the collaborative law process by retaining a new attorney who will agree in writing to be bound by these guidelines and principles. Collaborative counsel are required to withdraw from a case in the event they learn that their client has withheld or misrepresented information or otherwise acted so as to undermine or take unfair advantage of the collaborative law process. Said counsel may be required to communicate the reason. XIV. ELECTION TO TERMINATE COLLABORATIVE LAW PROCESS If a party decides to withdraw from the collaborative law process, prompt written notice will be given to the party and his or her attorney. Upon withdrawal, there will be a seven day waiting period (unless there is a need for emergency relief) before proceeding with Court hearings, to permit the other party to retain another lawyer and make an orderly transition. All temporary agreements will remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of any party. It is therefore mutually agreed that either party may bring this provision to the attention of the Court if requesting a postponement of a hearing. The parties understand that in the event of the termination of the status of this case as a collaborative law matter, it will be necessary to select new attorneys and additional fees will likely be required in retaining new counsel. XV. ACKNOWLEDGEMENT Both parties and their lawyers acknowledge that they have read this agreement, understand all the terms and conditions, and agree to abide by them. The parties understand that by agreeing to this alternative method of resolving their dissolution issues, they are giving up certain rights, including the right to formal discovery, formal court healings[sic], and other procedures provided by the adversarial legal system. The parties have chosen the collaborative law process and agree to work in good faith to achieve the goals stated herein. Under the collaborative law approach the attorneys and clients make the following agreements: that every effort will be made to settle the case; that if settlement is impossible the attorneys for both parties will withdraw and will not represent any of the parties in litigation; and that no one attorney's firms will represent either party in litigation of the domestic matter. Under this "Collaborative Law Participation Agreement," the parties acknowledge that they are waiving the following rights that would otherwise be available to them through the litigation process: (1) The right to formal discovery, including but not limited to discovery of assets and liabilities; (2) The right to have each and every item of marital property valued and to have the Court resolve any disputes between them with respect to valuation; (3) The right to have a court divide the marital property in a manner that the court determines to be equitable under Kentucky Law; the right to withhold information unless properly requested in discovery; the right to seek an advantage from an error by opposing party.
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Signature of Party: __________________ Signature of Party: ___________________ Printed Name of Party: _______________ Printed Name of Party: ________________ Date Signed: _______________________ Date Signed: ________________________ Signature of Counsel _________________ ______________________________ Bonnie M. Brown Printed Name _________________ Attorney at Law Address _________________ Suite 201, Bailey Office Park _________________ 4205 Springhurst Boulevard _________________ Louisville, KY 40241-6160 Telephone _________________ (502) 412-9190 ext. 226 telephone Facsimile _________________ (502) 412-9196 Email _________________ [email protected] Counsel for _________________ Counsel for ______________________
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COLLABORATIVE FAMILY LAW PARTICIPATION AGREEENT
PROS AND CONS
COLLABORATIVE PROCESS
• Client's/Children's needs advocated ____
• Process through meetings with parties, counsel, experts ____
• Temporary concerns can be addressed at first meeting ____
• Parties, counsel, experts drive timing of meetings, events ____
• Informal discovery ____
• Sharing experts encouraged ____
• Communications informal/confidential; Agreements public record ____
• If settlement impossible, attorneys disqualified to continue representation ____
• No guarantee of results or success ____
• In settlement discussions, party with information expected to disclose. May not
take advantage of other party's error and must advise ____
ADVERSARIAL PROCESS
• Client's/Children's needs advocated ____
• Process through hearings, arms-length communication ____
• Temporary concerns normally require Court Order or Agreement ____
• Court dockets, Rules drive timing of hearings, events ____
• Formal discovery under oath, unless waived ____
• May have 2-3 experts – one for each party and one Court appointed ____
• Pleadings public record; Communications between opposing parties and counsel generally not privileged ____
• If settlement impossible, attorneys may continue to represent parties ____
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• No guarantee of results of success ____
Litigation • Rules of Civil Procedure apply ____ • Rules of Evidence apply ____
Negotiation
• In settlement discussions, parties expected to request information he/she wants ____
• Expected to take advantage of other party's error or failure to ask the right question ____
Cooperation
• May waive formal discovery ____ • May choose to share experts ____
Mediation
• Trained neutral helps parties decide issues ____ • Communication generally confidential ____
Arbitration
• Private Judge decides issues based on evidence ___ • Appeal may be waived by contract ____
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