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Hofstra Law Review

Article Title

Generating "Win-Win" Results: Negotiating Conflicts in the Drafting Process of the Uniform Collaborative Law Act

Abstract

Collaborative Law (“CL”) was pioneered in 1990 by Stu Webb, a family law attorney from Minneapolis. After working close to twenty years litigating matrimonial matters, Webb sought an alternative to the traditional adversarial approach because of the impact it had on the divorcing parties, their dependants, and on himself as a lawyer. This recognition led him to develop a practice that would allow attorneys to be “settlement-only specialists” that work to settle cases outside of court….

Applying negotiation theory to CL, Part II of this article will explain one of the central goals of the CL movement: to orient the CL lawyer and the parties towards a problem-solving, interests-based negotiation process, and away from adversarial negotiation and litigation. This is accomplished through the Participation Agreement and disqualification feature contained within, which CL practitioners hold to be the linchpin of the interests-based approach to negotiation espoused by CL.

However, this new collaborative orientation can at times lead to confusion with regards to the professional duties of the attorney within CL. Part III will highlight problematic practices adopted by some CL practitioners. Evidence of such practices certainly does not implicate CL practice per se as unethical, but it does exemplify an existing, and yet not irreconcilable, tension between the CL process and the obligations of the lawyer as embodied within professional and ethical rules, a tension that needs to be acknowledged and understood.

Part IV of this article will offer a framework for maintaining the uniqueness of CL as an Alternative Dispute Resolution (“ADR”) process while at the same time working towards ensuring its legitimacy and long-term acceptance by the wider legal community. Under this framework, CL policy makers would take into account and incorporate external limitations and concerns when deciding how to shape CL practice and its growth.

Part V will illustrate how the drafting process of the UCLA implemented the approach outlined in Part IV through a study of one of the heavily debated issues that CL has grappled with: the four-way Participation Agreement signed by the parties and their attorneys. Part VI will analyze three additional examples of how the UCLA incorporated varying, and at times competing, interests when confronted with important public policy decisions: (a) whether or not the CL lawyer be able to independently invoke the evidentiary privilege created by the UCLA for CL communications; (b) the exception to the disqualification feature of the Participation Agreement to promote low-income parties' use of the CL process; and (c) the appropriateness of CL when there is evidence of a history of domestic violence. In all three examples, the Drafting Committee took into account and attempted to integrate what at times appeared to be competing policy considerations into a statutory scheme that maximizes the benefits for varying interests while still preserving the unique aspects of the CL practice.

Part VII concludes that the open and inclusive process assumed by the Drafting Committee of the UCLA, and the UCLA itself, both protects the essential characteristics of CL, and strengthens the practice and legitimacy of CL practice. The article encourages the CL movement to internalize such an approach.