Friday, March 27, 2015

Collaborative Case Law: Blank Slate or Black Hole?

By Joryn Jenkins and Lori Skipper

The dearth of collaborative case law exists for good reason. Assuming that collaborations are successful, and most are, collaborative teams model problem-solving behaviors and communication skills so that their clients learn to resolve future disputes without resorting to the litigation process. Less trial and post-judgment litigation means less appellate litigation, which means less case law. In the typical collaborative divorce, no court is involved other than to approve the parties’ agreement.

Collaborative practice is similar to mediation. What mediation case law exists usually concerns setting aside an agreement caused by coercion or duress, which is unlikely to occur in the collaborative setting, where the entire team, both neutral and allied professionals, works together to construct an agreement acceptable to both parties. 

In a recent local post-judgment case, the clients had initially collaborated their way to a marital settlement agreement (MSA). One of their collaborative attorneys later petitioned for modification. Naturally, the other party’s new lawyer moved to disqualify him.
Had the parties attempted to resolve their disagreements collaboratively? If so, why were they unsuccessful? We don’t know.

There’s no authority preventing a collaborative attorney from litigating once the original collaborative participation agreement (PA) is accomplished and a divorce finalized. Further, this collaborative MSA included the standard provision that the agreement contained the entire understanding and replaced any prior agreements between the parties. There was no exception for the PA. 

Ultimately, the judge ruled that the PA was no longer in effect, and the collaborative attorney was not barred from participating in post-judgment litigation.

Practice Tip One: Ensure that your collaborative MSA specifies that it does not nullify the PA (which includes the disqualification clause) and that the disqualification clause applies to post-judgment matters.

Practice Tip Two: Ensure that your MSA provides that clients unable to compromise in later disagreements themselves return to collaboration before seeking recourse in court.
In 2012, an opposing party moved to disqualify me, contending that we had already begun the collaborative process when the parties opted for litigation instead. The parties had not retained joint neutrals, and only one had signed the PA. (My client was uncomfortable with the disqualification provision.)

Our expert opined that the collaborative process had never begun because not all participants had executed the PA. Opposing counsel argued that the parties had orally agreed to proceed collaboratively, disqualifying the attorneys when the process failed. There were no statutes, local rules, or case law governing collaborative divorce; the judge was writing on a blank slate.

Ultimately, he held that I was not disqualified; there was no collaborative participation agreement signed and no meeting of the minds regarding disqualification. Because there was no appeal, the unreported opinion was consigned to law’s black hole.

Because of the negotiating lessons learned by collaborating parties, the lack of case law is likely to last. That is why it is so critical for collaborative statutes and rules to be passed. Once we pass the Uniform Collaborative Law Act in Florida, disqualification will be a matter of law.