UCLA – RCW 7.77 – Five Years Later “Cooperative Law” is NOT a Substitute for Collaborative Law
The Uniform Collaborative Law Act (UCLA) — RCW 7.77 – was enacted on July 1, 2013 in Washington State, the seventh (7th) state in the United States to adopt the UCLA. A total of seventeen (17) states and Washington, D.C. have now adopted the UCLA. In 2018 the UCLA was introduced in three (3) additional states: Massachusetts, North Carolina, and Tennessee. See Uniform Law Commission — www.uniformlaws.org.
The UCLA defines the Collaborative Law process as follows:
(3) “Collaborative Law process” means a procedure intended to resolve a Collaborative matter without intervention by a tribunal in which persons:
(a) Sign a Collaborative Law Participation Agreement; and (b) Are represented by Collaborative lawyers. RCW 7.77.010(3).
Long before the UCLA, in 1990, collaborative law began in Minnesota with Stu Webb — the father of collaborative law. Stu Webb is revered as the founder of Collaborative Law and was widely celebrated in 2015 at the IACP Forum in Washington, D.C., and the 25th Anniversary Celebration of Collaborative Law.
As I write this article, I am inspired by having just visited San Francisco and the bay area, California, the seat of the International Academy of Collaborative Professionals (IACP), established in the late 1990s by Pauline Tesler. I recall my first of eight IACP Forums and Institutes, in 2011, in San Francisco, California. This fall, the IACP Annual Forum will be held in our own backyard, Seattle, Washington. Come one — come all! IACP is an international community of legal, mental health and financial professionals working in concert to create clientcentered processes for resolving conflict. Today IACP has thousands of members from twenty-four (24) countries around the world, including the US, Canada, South America, Australia, Britain, Europe, Africa and Asia.
Collaborative law has been practiced in Pierce County since 2006, with the formation of the Collaborative Law Professionals of Pierce County (CLPPC). Past Presidents include the following: Felicia Malsby Soleil, Thomas A. Cena, Stephen W. Fisher, Tammis F. Greene, Teena Johnson, Leslie R. Bottimore, Lynn Johnson, Wendy E. Zicht, Wendy M. Rawlings (MS Psychology), and Peggy Fraychineaud Gross. Phyllis Duncan Souza (MSW, LICSW) is the current President.
Collaborative law has been practiced in King County, Washington, since 2003, with the formation of King County Collaborative Law (KCCL). With the assistance of CLPPC and others from all around Washington State, KCCL was instrumental in the passage of the UCLA.
The statewide umbrella organization — Collaborative Professionals of Washington (CPW) was formed in 2007. All of these organizations require education in collaborative law to become a member, and continuing education in collaborative law to stay a member.
RCW 7.77.120 requires provision of sufficient information about all options of dispute resolution – informed consent. Similarly, all of us lawyers — not just collaborative lawyers — are required by our Rules of Professional Responsibility to provide for informed consent. See RPC 1.0A(e), RPC 1.4, and RPC 2.1.
Collaborative law has no substitute. While many matters require litigation — and the court and judicial officers are essential — and while other matters may be submitted to other forms of dispute resolution — such as arbitration, traditional negotiation, evaluative mediation, settlement conference, or facilitative mediation — “cooperative law” does not exist. The term “cooperative law” is not defined by any statute, civil rule, or local court rule. The term “cooperative law” is also sometimes referred to as “collaborative-like” or “collaboresque.” Whatever the term or intention, “cooperative law” is not a substitute for collaborative law.
I am reminded of the tale of The Emperor’s New Clothes by Hans Christian Andersen — 1837 — with the moral of a falsehood accepted by all as true until an innocent and brave child points out the reality. We need to see the reality.
As collaborative lawyers, we are challenged to make a paradigm shift. “The paradigm shift refers to the alteration in consciousness whereby lawyers retool themselves from adversarial to collaborative lawyers.” See Collaborative Law by Pauline Tesler — 2001. With the recent Swearing In Ceremony with new lawyers being sworn into practice, it is fitting to refer to a “new” way of practicing law — collaborative law. Traditionally, lawyers are associated with conflict — not with conflict resolution.
If they are not to be left behind in the change process, the legal profession as a whole needs to take seriously the changing expectations of service, especially demands for value for money, the open provision of information, and timelines that keep pace with real-life needs and deadlines, which are replacing traditional assumptions of deference to a professional advisor. If lawyers are to rise to the challenge of moving with the times, they must be willing to open up and reappraise some of the “sacred texts” of lawyering, including the devotion to zealous advocacy, the drift toward adversarialism, and the primacy of rights-based dispute resolution processes. It is not enough to change the structure of conflict resolution processes nor to reorganize the business of lawyering to protect profits and growth. There is a need for a “new lawyer” with evolved beliefs and new habits of practice.
See The New Lawyer by Julie Macfarlane – 2008.
I challenge those who view “cooperative law)’ as a substitute for collaborative law to continue to make the paradigm shift – to fully embrace collaborative law as -an alternative to litigation, the high road, and to see “cooperative law” for what it is – a wolf in sheep’s clothing, or, essentially, the same as litigation.
When does the term “cooperative law” arise? Many attorneys view it as a substitute for collaborative law, because they fear that their client will “lose” their attorney. They point to the disqualification provision of a Collaborative Law Participation Agreement as somehow a negative provision.
The UCLA defines a Collaborative Law Participation Agreement as follows:
(2) “Collaborative Law Participation Agreement” means an agreement by persons to participate in a Collaborative Law
process. RCW 7.77.010(2).
Disqualification of Collaborative lawyer and lawyers in associated law firm.
(1) Except as otherwise provided in subsection (3) of this section, a collaborative lawyer is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter.
(2) Except as otherwise provided in subsection (3) of this section and RCW 7.77.090, a lawyer in a law firm with which the collaborative lawyer is associated is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter if the collaborative lawyer is disqualified from doing so under subsection (1) of this section.
(3) A collaborative lawyer or a lawyer in a law firm with which the collaborative lawyer is associated may represent a party:
(a) To ask a tribunal to approve an agreement resulting from the collaborative law process; or
(b) To seek or defend an emergency order to protect the health, safety, welfare, or interest of a party, or family or household member, as defined in RCW 26.50.010, if a successor lawyer is not immediately available to represent that person.
(4) If subsection (3)(b) of this section applies, a collaborative lawyer, or lawyer in a law firm with which the collaborative lawyer is associated, may represent a party or family or household member only until the person is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of the person. RCW 7.77.080
The CLPPC Participation Agreement further defines the disqualification provision as the “Collaborative Law Commitment” — a commitment made by the collaborative law professionals and their clients to work together toward a resolution rather than to work against each other to escalate the conflict.
The disqualification provision is the key component of a Collaborative Law Participation Agreement. It is what makes a matter a collaborative law matter and not litigation. As Stu Webb has taught us, removing court as an option allows for the participants to engage in a discourse without the threat or fear of litigation and with the freedom to create their own solutions to their own problems in a safe container facilitated by collaborative law professionals. With no ability to resort to court at the slightest hint of an impasse, participants are able to search for creative solutions, conduct further homework, dig beneath the subterranean, look at underlying interests, listen actively to one another and — in time – positive solutions to problems and issues can then immerge.
What also makes the collaborative law process work well is our use of a team approach with allied professionals, such as a coach and a child specialist with background and education and training in child development, family therapy, mental health issues, psychology, and social work, and such as a financial specialist with background and education and training as a Certified Professional Accountant (CPA) or as a Certified Financial Planner (CFP). This makes the process cost-effective — as each professional is able to focus attention to those specific issues. Because a dissolution of marriage matter involves legal, emotional, communication, financial, and children’s issues a team approach allows each area to be addressed by the appropriate professional so the participants and their children are then able to move forward with their families reconfigured in a healthy manner. Lawyers focus on legal issues, act as advocates, advise their clients, while working together with neutral professionals, who work with the couple, the children, and the family. A coach helps a couple to de-couple as husband and wife. A child specialist helps parents hear the voice of the children to arrive at a parenting plan that is best for their children. A financial specialist — trained as a Certified Divorce Financial Analyst (CDFA) – helps a couple to gather financial information, to generate financial reports, including budgets for each household (to allow for a smooth transition from one (1) household to two (2)) and including an inventory of assets and liabilities, so clients make informed decisions about the valuation and division of assets and liabilities through the brainstorming process while analyzing various scenarios to determine which serves both best. If needed, a neutral expert, such as an appraiser or a CPA (not engaged as a financial specialist), can be engaged to value assets such as real property, pensions, or a family owned business.
So called “cooperative law” does not involve the use of allied professionals, such as coaches or child specialists or financial specialists, or the use of neutral experts. If engaged, they are not protected by the confidentiality provisions of a participation agreement and the provisions of the UCLA. More importantly, clients are not protected, as so called “cooperation” within the context oflitigation with case schedules and deadlines and trial dates set by the court, can end (even abruptly — and even on the eve of trial such as when an impasse is encountered – and clients and attorneys can often resort to the “easy way out” with language and threats such as – (‘I will see you in court” or “I will take this to trial” or “let the judge decide,”). Such a practice can mean that the work product and communications of allied professionals and neutral experts can ultimately be used in litigation. In a collaborative law matter, such work product is only admissible if “otherwise compellable by law” (i.e., sworn financial statements) or if the participants agree.
Nevertheless, many attorneys continue to view “cooperative law” as an alternative to collaborative law. Some say, “I settle my cases anyhow” or “most cases settle anyhow.)’ While the rate of settlement before trial is 98.2% – See The New Lawyer by Julie Macfarlane – 2008 – there is a qualitative difference between Continued on next settlement before trial (often involving lengthy and expensive litigation before a settlement conference or mediation) and collaborative law (which begins from point A with working together toward a deeper and more meaningful resolution suitable for all participants).
Some have gauged that their clients do not trust their spouses. Yet, in dissolutions of marriage, given is the break-down of mutual trust and mutual love and respect. See Why Marriages Succeed or Fail by John Gottman, Ph.D. — 1994. Therefore, clients are encouraged to trust the collaborative law process.
Pursuant to RCW 7.77 and the Collaborative Law Participation Agreement — good faith and full disclosure are requirements of the process. Avoiding formal discovery through a “cooperative” exchange of relevant information and documents can become a quagmire for attorneys and lead to malpractice. Embarking on such a path without the protection of formal discovery rules as a traditionally litigated matter and also without the protection of RCW 7.77 and the Collaborative Law Participation Agreement as a collaborative law matter can put the lawyer and the client at risk.
What makes a matter a collaborative law matter is not simply that the professionals are “cooperative” with one another — though collaborative lawyers honor civility in the profession.
Civility is a set of attitudes, behaviors, and skills that call upon us to respect others, to remain open-minded, and to engage in honest and constructive discourse. Civility benefits businesses by creating satisfied clients and reducing costs. It benefits individuals by reducing stress and promoting healthy relationships.
Civility promotes a just and healthy society by de-escalating cönflict and inspiring service as volunteers. We behave civilly by actively listening to others, by understanding our own biases and assumptions, and by treating others as we would like to be treated. In order to understand our inherent biases, we need to engage in difficult but necessary conversations about race, gender, otherness, and values.
See Robert’s Fund Civility Center for Law – www.civilitycenterforlaw.org. Like the Robert’s Fund Foundation, as professionals, attorneys ought to elevate the profession of law overall through civility in our practices no matter whether we are engaged in litigation, arbitration, traditional negotiation, evaluative mediation, settlement conference, facilitative mediation, or collaborative law. Civility should be the norm.
For a matter to be conducive to collaborative law — disputes — conflict — issues — something to collaborate about — must exist. Otherwise, we call those matters without disputes — conflict — issues — “uncontested.”
RCW 7.77.130 requires collaborative lawyers to conduct an ongoing reasonable inquiry as to coerciveness and/or violence in a relationship. If there are such issues, collaborative lawyers must look to the creation of a safety plan. Collaborative law disputes include the same issues that lawyers find in litigated matters, including domestic violence, marital betrayal, financial issues, bankruptcy issues, child development issues, special needs children, cultural issues, life changes, substance abuse issues, mental health issues, etc. The difference between collaborative law and litigation is how the issues are addressed and the disputes resolved.
The benefits for clients working in a collaborative law process to address the issues and to resolve the disputes include privacy, confidentiality, management of time and expense, self-determination, deep and long-term resolution of conflict, durability, healthy reconfiguration of family. The collaborative law process involves inquiry, active listening, a client-centered focus on underlying interests rather than positions of parties, short and long-term goals, and the best interests of the children.
The UCLA defines a collaborative law matter as follows: (5) “Collaborative matter” means a dispute, transaction, claim, problem, or issue for resolution, including a dispute, claim, or issue in a proceeding, which is described in a collaborative law participation agreement. RCW 7.77.010(5).
Matters ripe for collaborative law include family law matters such as dissolutions of marriage and parenting matters; elder law matters such as estate, probate, and guardianship matters; employment disputes; and other civil disputes.
In a study conducted between 2006 and 2010, primarily in jurisdictions in the United States and Canada, by the IACP Research Committee led by Past President Linda K. Wray — the following conclusions were reached: Eighty-six percent (86%) of all reported collaborative law cases resolved with agreements on all issues. An additional two percent (2%) reconciled. The collaborative law process terminated in less than eleven percent (11%) of collaborative law cases before reaching agreements on all issues. And of those cases that terminated, fourteen (14%) reached partial agreements. One percent (1 %) of collaborative law cases reported no outcome. The same study found greater satisfaction by the clients with their lawyers.