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Collaborative law

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Alternative dispute resolution

Collaborative law, also known as collaborative practice, divorce or family law,[1] is a legal process enabling couples who have decided to separate or end their marriage to work with their collaborative professionals including collaboratively trained lawyers, coaches and financial professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family-related litigation.[citation needed]

The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.[2]

Collaborative law processes also have the added benefit of being cost efficient for the involved parties. As the necessary tasks in the collaborative model are assigned to specialist professionals without duplication of effort, cost savings are realized.[3] These cost efficiencies, in addition to other potential benefits, have led parties in other contexts to explore the use of collaborative law to resolve disputes, including M&A transactions.[4]

History

This approach to conflict resolution was created in 1990 by Minnesota family lawyer Stuart Webb, who saw that traditional litigation was not always helpful to parties and their families, and often was damaging. Since 1990, the Collaborative Law movement has spread rapidly to most of the United States, Europe, Canada and Australia. Per the International Academy of Collaborative Professionals ("IACP"), more than 22,000 lawyers have been trained in Collaborative Law worldwide, with collaborative practitioners in at least 46 states. In some localities, Collaborative Law has become the predominant method for resolving divorce, co-habitation and other family disputes. More than 1,250 lawyers have completed their training in England where collaborative law was launched in 2003.

The Collaborative Law movement has spread rapidly to most of the United States,[5] Europe, Canada[6][7] and Australia.,[8] More than 22,000 lawyers have been trained in Collaborative Law worldwide and more than 1,250 lawyers have completed their training in England and Wales where Collaborative Law was launched in 2003.

In Canada, there has been growing interest in a collaborative legal approach since prior to 2006, when several hundred family lawyers were already practicing collaborative law. Lawyers had recognized the need for experts in fields outside of law such as mental health, lifestyle counselling and financial planning, sourcing these backgrounds to provide better service to clients. Since money issues drive much of divorce negotiations – and impact both the clients ability to pay and how much – collaborative law has driven demand for chartered financial divorce specialists, who have training in tax laws, asset valuations, estate & property division, spousal support, pensions & retirement funds, etc. to fill the gap for lawyers in understanding long-term financial impacts outside of legal expertise.[9]

The growth of the collaborative process in England and Wales has been encouraged by both the judiciary and the family lawyers organisation, Resolution.[10] In an address to London family lawyers in October 2009, the newly appointed Supreme Court Justice, Lord Kerr of Tonaghmore became the first member of the Supreme Court to publicly endorse Collaborative Law and called for its extension to other areas.[11][12] Previously, in October 2008 the Hon. Mr Justice Coleridge, a High Court Judge of the Family Division, had promised that collaborative agreements would be fast tracked in the High Court of England and Wales.[13] On 29 November 2011, speaking at a reception hosted by the group, Collaborative Family Law,[14] Supreme Court Justice Lord Wilson of Culworth reaffirmed his commitment to Collaborative Law and other Family Dispute Resolution Services whilst criticising the Government's plans to cut legal aid, which he called a "false economy".[15]

Organizations

The primary global collaborative organisation is the International Academy of Collaborative Professionals (IACP), which was founded in the late 1990s by a group of northern California lawyers, psychotherapists, and financial planners. IACP has more than 2,400 members and there are more than 200 practice groups of collaborative practitioners worldwide. The IACP offers an opportunity for education and networking for its members[16] as well provides a resource for research on collaborative divorce.[17]

The American Bar Association ("ABA"), the American Academy of Matrimonial Lawyers, and the International Academy of Matrimonial Lawyers ("IAML")[18] all have Collaborative Law committees.

IACP is an interdisciplinary organisation whose members include lawyers, mental health professionals, finance and financial divorce specialists. National Collaborative organisations have been established in many jurisdictions around the world, including Australia,[19] Austria,[20][21] Canada,[22] the Czech Republic, England, France, Germany, Israel, Hong Kong, Kenya, New Zealand, Northern Ireland,[23] the Republic of Ireland,[24] Scotland,[25] Switzerland, and Uganda, as well as the United States. There is an active on-line collaborative community on Be-fulfilled.org.

In England and Wales, Resolution, has assumed responsibility for the training and accreditation of all collaborative professionals.[26] Almost one-third of all English family lawyers have now completed their collaborative training. In the Republic of Ireland regional collaborative law associations have been set up in cities such as Galway,[27] Cork,[28] and Dublin. In France the AFPDC was created in 2009 to develop and implement collaborative practice in France.[29]

A number of states in the United States have their own individual organizations for collaborative law practitioners, including Collaborative Practice California,[30] the Collaborative Family Law Council of Florida,[31] Collaborative Law Institute of Georgia, the Collaborative Law Institute of Illinois, the Collaborative Law Institute of Minnesota, the Collaborative Law Institute of North Carolina, Collaborative Divorce Texas[32][33] and the Massachusetts Collaborative Law Council, and the Washington DC Academy of Collaborative Professionals.

Further, most metropolitan areas, such as San Diego,[34] Los Angeles,[35] Tampa,[36] Dallas,[37] Raleigh,[38] Cleveland,[39] St. Louis[40] and Chicago[41] have local collaborative practice groups.

Uniform Collaborative Law Act

In the United States, the Uniform Collaborative Law Act was adopted in 2009 by the Uniform Law Commission, and thereby became available to the individual States to enact as law. In 2010, the Uniform Collaborative Law Act was amended to add several options and renamed the Uniform Collaborative Law Rules and Act. As of June 2013, the Uniform Collaborative Law Act was enacted into law in the states of Utah, Nevada, Texas, Hawaii, Ohio, the District of Columbia, and Washington State, and passed by the Alabama Legislature but awaiting the Governor's signature, and was pending enactment in several additional U.S. states.[42] In Texas, Houston-based family lawyer Harry Tindall has been instrumental in securing passage of the UCLA by the Texas Legislature.[43] On 24 March 2016, Florida Governor Rick Scott signed the Collaborative Law Process Act, Florida's version of the Uniform Collaborative Law Act, which creates a statutory privilege that makes confidential communications had during the collaborative process.[44]

The Overview to the Act provides a comprehensive and reliable history of the emergence of collaborative law in the United States.[45]

In some states, like Florida, which were waiting on the passage of the Uniform Collaborative Law Act, local judges had been teaming up with collaborative professionals and creating local rules and administrative orders endorsing and regulating collaborative law.[46]

References

  1. ^ See "History" in this article, and Footnote 4.
  2. ^ "Law Society Gazette Collaborative Pre-Nups". Lawgazette.co.uk. Archived from the original on 4 March 2012. Retrieved 31 December 2011.
  3. ^ "The Efficiency of the Collaborative Divorce Settlement Process". Axelrod Collaborative Law. 24 March 2014. Retrieved 24 March 2014.
  4. ^ Fabian, Christian. "Is Collaborative Law an Option for Resolving M&A Disputes". Transaction Advisors. ISSN 2329-9134.
  5. ^ "Is Collaborative Divorce a Wolf in Sheep's Clothing? | HuffPost null". 20 July 2011.
  6. ^ "Divorce specialist designation picks up steam". Advisor's Edge. 28 May 2004.
  7. ^ https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf [bare URL PDF]
  8. ^ "Per the International Academy of Collaborative Professionals ("IACP")". Collaborativepractice.com. Retrieved 31 December 2011.
  9. ^ "Helping couples survive divorce". 2 June 2006.
  10. ^ "Alternatives to Court". Resolution. Retrieved 31 December 2011.
  11. ^ "Collaborative Law". Spears WMS. Archived from the original on 3 March 2012. Retrieved 31 December 2011.
  12. ^ Lech Mintowt-Czyz Last updated 31 December 2011 12:36 pm. "The Times – Senior judge says 'collaborative' approach can be extended". The Times. UK. Retrieved 31 December 2011.{{cite web}}: CS1 maint: numeric names: authors list (link)
  13. ^ Rozenberg, Joshua (15 October 2008). "Daily Telegraph Fast-track separations for couples who agree". The Daily Telegraph. UK. Retrieved 31 December 2011.
  14. ^ "Launch of Collaborative Family Law Group". Collaborativefamilylaw.org.uk. Archived from the original on 2 January 2012. Retrieved 31 December 2011.
  15. ^ Wozniak, Vanessa (1 December 2011). "Lord Wilson'sKeynote Address". The Lawyer. Retrieved 31 December 2011.
  16. ^ "IACP Networking and Educational Forum". International Academy of Collaborative Professionals. Archived from the original on 27 September 2015. Retrieved 26 September 2015.
  17. ^ Cordover, Adam (28 August 2015). "Research - Collaborative Divorce by the Numbers (2010)". Family Diplomacy: A Collaborative Law Firm. Archived from the original on 27 September 2015. Retrieved 26 September 2015.
  18. ^ "International Academy of Matrimonial Lawyers Website". Iaml.org. Retrieved 31 December 2011.
  19. ^ "Australia". Collaborativelaw.asn.au. Archived from the original on 13 November 2011. Retrieved 31 December 2011.
  20. ^ "Austria". avm.co.at. Archived from the original on 17 February 2009.
  21. ^ "Austria". Rechtimdialog.at. Archived from the original on 24 February 2012. Retrieved 31 December 2011.
  22. ^ "Canada". Collaborativelaw.ca. Retrieved 31 December 2011.
  23. ^ "Northern Ireland". Afriendlydivorce.co.uk. Retrieved 31 December 2011.
  24. ^ "Republic of Ireland". Acp.ie. Retrieved 31 December 2011.
  25. ^ EQ Design. "Scotland". Scottish-collaborativelawyers.com. Retrieved 31 December 2011.
  26. ^ "Resolution". Resolution. Retrieved 31 December 2011.
  27. ^ "Republic of Ireland-Galway". collaborativelawgalway.ie. Archived from the original on 3 September 2010. Retrieved 6 July 2019.
  28. ^ "What is Collaborative Law - Resolve Cork". resolvecork.com. Archived from the original on 18 June 2013. Retrieved 13 September 2012. Obtaining Mechanic's Liens
  29. ^ "Droit Collaboratif Accueil" (in French). Droit-collaboratif.org. Retrieved 31 December 2011.
  30. ^ "Collaborative Practice California Website". cpcal.org/. Retrieved 5 June 2016.
  31. ^ "Collaborative Family Law Council of Florida Website". collaborativecouncilflorida.com/. Archived from the original on 13 April 2014. Retrieved 12 April 2014.
  32. ^ "Collaborative Divorce Texas's Website". collaborativedivorcetexas.com/. Retrieved 1 May 2019.
  33. ^ "History of Collaborative Divorce Texas". collaborativedivorcetexas.com/. Retrieved 1 May 2019.
  34. ^ "Collaborative Family Law Group of San Diego". collaborativefamilylawgroupsandiego.com/. Archived from the original on 9 January 2022. Retrieved 5 June 2016.
  35. ^ "Family Divorce Solutions". familydivorcesolutions.com/. Retrieved 5 June 2016.
  36. ^ "Next Generation Divorce of Tampa Bay". NextGenerationDivorce.com/. Retrieved 12 April 2014.
  37. ^ "Collaborative Professionals of Dallas". cpofdallas.com/. Retrieved 12 April 2014.
  38. ^ "Collaborative Divorce Solutions". collaborativedivorcesolution.com/. Retrieved 12 April 2014.
  39. ^ "Cleveland Academy of Collaborative Professionals". collaborativepracticecleveland.com/. Retrieved 12 April 2014.
  40. ^ "Missouri Collaborative Institute". missouricollaborativeinstitute.com. Retrieved 6 September 2017.
  41. ^ "Collaborative Law Institute of Illinois". collabawil.org. Retrieved 6 September 2017.
  42. ^ "Collaborative Law Act". Nccusl.org. Archived from the original on 17 May 2012. Retrieved 31 December 2011.
  43. ^ "THE UNIFORM COLLABORATIVE LAW ACT AS A TEACHING TOOL" (PDF). Hofstra. Retrieved 10 March 2009.
  44. ^ "Governor Scott Signs Collaborative Divorce Bill into Law". FamilyDiplomacy.com. Archived from the original on 2 August 2016. Retrieved 11 June 2016.
  45. ^ "law.upenn.edu". law.upenn.edu. Archived from the original on 26 January 2012. Retrieved 31 December 2011.
  46. ^ "Tampa Chief Judge Signs Administrative Order on Collaborative Divorce". abcfamilyblog.wordpress.com. 4 August 2012. Retrieved 22 May 2013.

Further reading

  • Forrest S. Mosten & Adam B. Cordover, BUILDING A SUCCESSFUL COLLABORATIVE FAMILY LAW PRACTICE (ABA 2018)[1]
  • Nester C. Kohut, THERAPEUTIC FAMILY LAW; A COMPLETE GUIDE TO MARITAL RECONCILIATION (Family Law Publications, 2nd ed. 1968)- this book is by a pioneer in the field, a forerunner of the concept that later became known as Collaborative (Family) Law.
  • Kate Scharff and Lisa Herrick, NAVIGATING EMOTIONAL CURRENTS IN COLLABORATIVE DIVORCE: A GUIDE TO ENLIGHTENED TEAM PRACTICE (American Bar Association, 2011)
  • Pauline H. Tesler, COLLABORATIVE LAW: ACHIEVING EFFECTIVE RESOLUTION IN DIVORCE WITHOUT LITIGATION (American Bar Association, 2001, 2008)
  • Pauline H. Tesler and Peggy Thompson, COLLABORATIVE DIVORCE: THE REVOLUTIONARY NEW WAY TO RESTRUCTURE YOUR FAMILY, RESOLVE LEGAL ISSUES, AND MOVE ON WITH YOUR LIFE (Harper Collins, 2006)
  • Forrest S. Mosten, THE COLLABORATIVE DIVORCE HANDBOOK: HELPING FAMILIES WITHOUT GOING TO COURT (Jossey-Bass, 2009)
  • Richard Wolf, USING A FINANCIAL NEUTRAL IN A COLLABORATIVE DIVORCE, Forensics & Litigation Support (Gross Mendelsohn, Oct. 22, 2018) [2]
  1. ^ Mosten, Forrest S.; Cordover, Adam B. (2018). Building A Successful Collaborative Family Law Practice. Chicago, IL: American Bar Association. ISBN 978-1-64105-241-2.
  2. ^ "Using a Financial Neutral in a Collaborative Divorce".
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