Friday, February 11, 2011

Collaborative Law: Will Alabama Join the Trend?

I recently reviewed a copy of proposed Alabama Senate Bill 18 (SB18), offered by Senator Cam Ward, which will be introduced during the current legislative session.  This bill proposes that Alabama adopt the Uniform Collaborative Law Act, providing divorcing couples in Alabama with a different avenue for seeking resolution to their divorce.  Senator Ward participated on the drafting committee of the Uniform Collaborative Law Act for the National Conference of Commissioners on Uniform State Laws.

So what is this proposed new avenue?  Collaborative Law, as the name suggests, is a process where the parties to a divorce hire lawyers trained in collaborative practice to negotiate a resolution of their divorce.  The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent.  The process limits the role of the Court to enforcing the agreement reached by the parties through negotiation.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but their lawyers agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.

The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution.  The process allows for other “nonparty participants” to be part of the process – financial professionals, counselors, divorce coaches, mediators, etc. – to help the parties and their lawyers shape the agreement.  Like traditional mediation, the process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

Many questions surround the process:  Will lawyers who traditionally litigate take to this new role?  Will parties abuse the process as a method to conflict lawyers out of cases?  Does the practice conform to the rules of ethics governing the practice of law?  How much input can a Court have in the approval of the collaborative agreement – i.e., child support guideline compliance, child custody arrangements, etc.?  Is the process truly cost effective as compared to traditional litigation or mediation?  Does it work?

There are examples from around the country of the collaborative process being effective in the right case.  Clearly the process is not for everyone.  Of course, litigation is not for everyone either and I firmly believe that family law matters are best resolved by the parties themselves – whether through negotiation by lawyers, mediation (which is by its definition a collaborative process), etc.  I also question how different this process really is from mediation.  Many commentators have pointed out that lawyers are not required for mediation, whereas they are for collaborative law agreements, and therefore clients get better advice and results.  In my own practice, I’ve found that most mediation clients have lawyers and my role is to help guide them to a settlement that meets their needs.  And while I have mediated for people who wish to represent themselves, I always recommend they have a lawyer review the agreement we reach through mediation.  

There is a very informative article from the Spring 2009 edition of the St. Louis Bar Journal entitled, “Collaborative Law: Good News, Bad News, or No News?” by Yvonne M. Homeyer and Susan L. Amato.  In the article, the authors discuss many of the issues surrounding the collaborative law movement.  They also provide some statistics about collaborative law from a study complied by the International Academy of Collaborative Professionals.  The data provided was from a two year survey of 502 family law cases that were handled through the collaborative process.  The data, as reported at page 28 of the Journal, showed:

- 87% of reported cases were successfully resolved, 3% ended in reconciliation, and only 10% were terminated;

- 43% were lawyer-only cases and 56% were interdisciplinary;

- The average cost for both attorneys was $18,755;

- 32% of cases met 3-4 times, 20% of cases met 5-6 times, 20% of cases met 7-9 times, and 10% of cases met 10+ times;

- 48% of cases involved a financial professional;

- 40% of cases involved one or more mental health professionals;

- 72% of cases involved children that were subject to the court’s jurisdiction (i.e., parenting plans needed);

- 76% of all clients were over the age of 40, and 60% were between the ages of 40 and 54;

- 80% of clients had completed at least 4 years of college, and 38% had obtained advanced degrees; and

- 80% of the marital estates were worth $200,000 or more, and 56% of the marital estates were worth $500,000 or more.

Given these statistics, it would seem that the process was clearly successful in certain cases.  Whether the success rate reported will translate to a broader spectrum of divorce cases remains to be seen.  The article can be found on-line at:

I am sure there will be debate regarding SB18 and that the concerns and questions surrounding the Uniform Collaborative Law Act will be addressed before the Alabama legislature.  It will be interesting to see how this law, if passed, is implemented and how widely the collaborative law practice will spread in Alabama.

1 comment:

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