Wednesday, June 25, 2014

Is Collaborative Law Right For Your Probate Practice?

By Kerry Raleigh Tipton

At the end of a protracted litigation, whether by trial or late-stage settlement, have you ever thought: There has got to be a better way to resolve disputes? Have your clients? If you answered yes to either of these questions, then it is time for you to consider adding collaborative law as a dispute resolution service you offer your clients.

Collaborative law is an alternative dispute resolution process in which the parties, their lawyers, and the collaborative facilitator all agree that should the dispute not settle, the lawyers and collaborative facilitator will not represent the parties in any subsequent court proceeding or lawsuit. Throughout the collaborative law process, the parties agree to exchange information, may bring in trained third parties (expert witnesses, mediators, etc.) to help the parties evaluate the value of the case, and ultimately settle the matter. Although collaborative law has its roots in family law, it is expanding to civil matters. 

Collaborative law is well-suited for probate litigation. Probate disputes often arise between family members who have an interest in preserving the familial relationship. The Ohio State Bar Association noted, “Few probate matters are completely decided in court, and settlements are often reached only when the parties’ emotional and financial resources are exhausted. Collaborative law settlements tend to be more satisfactory to the parties, and thus more stable and enduring, and the process generally is less stressful and less expensive.” See the OSBA 7/29/2012 issue of the “Law You Can Use” prepared by Columbus attorney Tom H. Nagel. Sherrie Abney and Melanie Atha are two attorneys using their collaborative law training in probate cases. (I would like to express my gratitude with Ms. Abney and Ms. Atha. They were very generous with their time and insights on collaborative law.)   

Abney, author of “Civil Collaborative Law: The Road Less Traveled” and “Avoiding Litigation,” is an attorney in Texas and one of the founding members of the Global Collaborative Law Council.  Abney attributes the collaborative process as creating an environment of empathy, which then paved the way toward win-win settlements. Although there are different collaborative models, Abney uses the model (or a modified model) that best fits the needs of the case at hand.  

Atha is an attorney with the firm of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP in Alabama. In her probate litigation, Atha attributes her ability to help the parties move through their emotional baggage toward resolution on her collaborative law training. In cases where the parties have a goal in preserving their relationship going forward, Atha advises that collaborative law gives the attorneys a chance at achieving this goal.

Although Abney, Atha, and all those practicing collaborative law are innovators and pioneers, they are not alone. The Uniform Collaborative Law Act has been enacted in seven states plus the District of Columbia and has been introduced in eight other states, including Florida. See Uniform Law Commission website. (Florida’s pending bill is focused on family law matters, but nothing precludes the use of collaborative law to other matters.) The American Bar Association and our local Hillsborough County Bar Association have Collaborative Law Sections. The Global Collaborative Law Council and the International Academy of Collaborative Professionals (IACP) are professional organizations with worldwide reach. For instance, the IACP has 5,000 members internationally. 

For more information on collaborative law, consider joining the HCBA Collaborative Law Section.