WHAT IS COLLABORATIVE LAW? Participants: Amy J. Amundsen amy@ajamundsenlaw.com Dr. Jolene Bailey, Ph.D. drjolenebailey@aol.com Karolina Calhoun calhounk@mercercapital.com Scott Crosby scrosby@bpjlaw.com Susan Hinsley shinsley@bshrlaw.com Cynthia A. Pensoneau cindy@memphisclp.com Scott Womack womacks@mercercapital.com Many thanks to Mercer Capital and Memphis Collaborative Alliance in hosting this event.
WHAT IS COLLABORATIVE LAW? Definition: A voluntary, contractually based ADR process for parties who seek to negotiate a resolution rather having a ruling imposed by a court or arbitrator.
COLLABORATIVE LAW VS. MEDIATION SIMILARITIES Private and confidential negotiations; Cost reduction; Potential for better relationships; Voluntary disclosure & fair ethical dealing; Self determination.
COLLABORATIVE LAW V. MEDIATION DIFFERENCES CL-neutral not present unless agreed by the parties; Mediation-neutral helps devise agreement; No pro se litigants in CL; CL-cannot use threat of litigation to bolster position; Mediation-can dig heels & threaten court; CL-if impasse, lawyers & experts terminated. Mediation-can retain lawyers & experts in the event of an impasse.
WHY COLLABORATIVE LAW Encourages “problem-solving” rather than “positional negotiations” Focuses on “finding creative solutions that maximize the outcome for both sides” Empirical research shows high level of client and lawyer satisfaction.
COLLABORATIVE TEAM A lawyer for each client A mental health professional/facilitator A neutral financial professional (NFP) Other professionals may be consulted as needed (estate/trust attorneys, tax, financial advisor(s), mortgage broker, real-estate agent, appraiser, etc.).
ATTORNEY ROLE Explain Options of Choice for Resolution Process Non-Adversarial orientation Advocate for their client Guide their client through the process Help clients develop options for settlement Prepare all legal documentation Encourage client’s engagement and participation Collaborative Process.
MENTAL HEALTH PROFESSIONAL/FACILITATOR ROLE Role is neutral Works to strengthen/guide communication between parties Identifies any immediate issues that need to be resolved Assesses the emotional readiness of the parties Screens for DV, power imbalances, control issues, alcohol/addiction issues Manages the emotional content of the meetings and process Makes referrals when necessary Trouble shoots and manages potential disruptive issues Keeps the professionals on task/ debriefs team meetings.
NEUTRAL FINANCIAL PROFESSIONAL (NFP) ROLE Role is neutral Steward of financial records & facilitator of financial information needed to achieve goals. Helps educate & create & design options to assist each individual to meet needs and achieve goals. Provides financial skills related to personal net worth & budgets. Assists with property division. Present analyses related to spousal support & child support. Provide more complex analyses such as: business valuations, valuations of retirement plan assets, deferred compensation (stock options, incentive pay, etc), property classification (separate vs. marital), tracing of assets, forensic accounting & impact of proposed settlements.
FACTS TO CINDY & CLINT’S DIVORCE Married 20 years Wife Cindy-MBA, former real estate company owner, now stays at home; Husband Clint-restaurant owner, just opened another restaurant near the beach house, has newly romantic interest, wants a divorce; Children- three, ages 18 (twins) and 20 yrs old (Jr. in college); Assets: home, beach home, restaurant business, financial accounts and investments, Debts: joint mortgages, joint lines of credit, and joint credit card debts, but Cindy put $300k of her inheritance into the restaurant. What are the mutual goals? What is Cindy’s interest? What is Clint’s interest?
COLLABORATIVE LAW PARTICIPATION AGREEMENT Collaborative Law Agreement Judicial intervention terminates the collaborative law process & disqualification requirement takes effect. Right to terminate collaborative law at any time without giving reason.
COLLABORATIVE LAW PRACTICE MODEL Threats of litigation are prohibited; Must disclose all information and to supplement documentation; Can jointly retain mental health & financial professionals in advisory & neutral roles Communications are confidential & cannot be introduced as evidence.
COLLABORATIVE PROCESS
COLLABORATIVE PROCESS
DIFFERENCES IN LANGUAGE
WHO CAN PRACTICE COLLABORATIVE LAW?
WHO CAN PRACTICE COLLABORATIVE LAW?
THE UNIFORM COLLABORATIVE LAW & RULE ACT (UCLRA) 2009—Uniform Collaborative Act 12 states passed as Rules or Statutes: AZ, CA, FL, IL, MI, NJ, NM, NC, OH, TX, UT, and WV. Rule proposed & with TN S.Ct.
ISSUE SUES T S TO O CON ONSI SIDER Collaborative law is not always the best choice for a client. Collaborative law agreements limit the scope of representation.
COLLABORATIVE LAW TRAINING Middle Tennessee Collaborative Alliance Memphis Collaborative Alliance Knoxville Collaborative Alliance International Academy of Collaborative Professionals
SOURCES F i sh er, R o ger, et a l ., G etting to Y es: Neg o tiating Ag reement W i thout G i ving In 4 -14 ( 2 d ed. 1 991). Sch neyer, T h e O rg ani zed Ba r a n d th e Co l laborati ve La w Mo vement: A Study i n P rofessional Ch a nge, 5 0 Cl a re Hun tington , Happy F amilies? T r anslating P ositive P sycholog y into F amily Law , V a . J . So c. P o l ’y & L ( 2 009) G uth rie et a l . A “P arty Sa ti sfiaction” P ersepective o n a Co mprehensive Medi ation Sta tute, 1 3 O h io St. J . O n D i sp. R esol . 8 8 4, 8 91 ( 1 998) . I ACP History , In ternational Aca demy o f Co l laborative P ro fessionals, h ttp://www.col laborativepractice.com/_Wil lItWork.asp?M=1&MS=3 ( l a st vi sited September 1 0 , 2 0 12). Un i f. Co l laborative La w R ul es a n d Un i f. Co l laborative La w Act, prefa tory n ote ( a mended 2 0 10) No rman So l ovay a n d La wrence R . Ma xwell, J r., W hy a Unif orm Collaborative Law Act? , New Y o rk D i spute R esol ution La wyer, Spri ng 2 009 Ma cFarlane, J ul i e, D ep’t o f J usti ce o f Ca n., T h e Em erg ing P h enomenon o f Co l laborati ve F a m ily La w ( CF L) : A Q ual itative Study o f CF L Ca ses 5 7 , 7 7 -78 ( 2 0 05) . Ava i lable a t h ttp://www.justi ce.gc.ca/eng/pi/fcy-fea/li b-bib/rep-rap/2005/2005_1/pdf/2005_1.pdf.
SOURCES Collaborative Practice Legislation and Reform , International Academy of Collaborative Professionals, http://www.collaborativepractice.com/_t.asp?M=8&MS=9&T=UCLA (last visited March 17, 2015) H.B.3648/S.B.3531, 106 th Gen. Assemb., Reg. Sess. (Tenn. 2010) H.B.3509/S.B.3720, 107 th Gen. Assemb., Reg. Sess. (Tenn. 2012) Bill Information for HB3509 , Tennessee General Assembly, http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB3509 (last visited September 19, 2012). Collaborative practice trainers, The Mastery of Collaborative Practice training materials, Collaborative Practice Information (2010). Karen A. Covy, Alternatives to Court: Collaborative Law, DivorceMagazine.com, http://www.divorcemag.com/articles/Collaborative_Law/alternativestocourt.html (last visited September 24, 2012) 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). Marlene Eskind Moses and Jessica J. Uitto, Collaborative Law , Tennessee Bar Association (August 25, 2010, 3:50 p.m.) http://www.tba.org/journal/collaborative-law The Team , Middle Tennessee Collaborative Alliance, (last visited March 17, 2015) http://www.mtcollab.com/directory Memphis Collaborative Alliance Members, Memphis Collaborative Alliance, (last visited March 17, 2015), http://www.memphiscollaborativealliance.com/members.html
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