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Collaborative law codified

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On Jan. 10, state Sen. Michael Noland introduced Senate Bill 31, which would create the Uniform Collaborative Law Act. The proposed act outlines terms applicable to collaborative law participation agreements and contains provisions governing the requirements of collaborative law agreements, the start and end of the collaborative law process, court proceedings, disqualification of lawyers, disclosure requirements and aspects of confidentiality and privileges.

Collaborative law has gained steam over the years not only in matrimonial actions, but commercial and business disputes as well. The collaborative law process means a procedure intended to resolve a legal matter without intervention by a court.

In family law, that means matters relating to marriage, divorce, dissolution, annulment, property distribution, child custody and support, adoption, parentage and premarital and post-marital agreements.

The goal of collaborative law is to create a win-win situation for both parties and help the healing process. The basic canons of collaborative law provide that two collaboratively trained attorneys work with the parties to resolve their issues and negotiate a fair future-focused settlement out of court. Other trained professionals, such as financial specialists and mental health providers, are often utilized.

Collaborative law is purely optional and the court may not order a party to participate in the collaborative process. It is generally not suitable in cases where there is a complete lack of trust or candor and in cases of domestic abuse. Mutual respect and open communication with the assistance of trained professionals is key, as is a commitment to finding a solution that takes into account the highest priorities and needs of both parties and their children.

When it works, collaborative law is an excellent use of time, emotion and resources. When it fails, the parties start from scratch and end up wasting valuable time, energy and resources, particularly since the parties there are required to obtain new legal counsel at that point in time.

Even though a party has filed for divorce, it is not too late to enter into a collaborative law agreement. If there is a case pending, the parties simply have to notify the court and ask for a stay of proceedings pending completion of the collaborative law process. The parties should then notify the court when the collaborative law process concludes and indicate whether an agreement was reached so that prove-up can be scheduled immediately or the case can be placed on active status.

Throughout the process, the court may require the parties to provide a status report so it can monitor the progress of the case and maintain a reasonable time frame for concluding the proceedings. A court has the discretion to dismiss an action where the collaborative process is being used as a delay tactic or where no progress is being made.

During the collaborative process, the court maintains authority to issue orders of protection, but that is generally the extent of the court’s involvement. The court does not monitor or compel discovery as it does in ordinary cases because timely, full, candid and informal disclosure of information is really the crux of collaborative law.

In other words, the parties have agreed to proceed without formal discovery and promised to be truthful and forthcoming with information. Failure to abide by this promise nullifies the process. The parties have also agreed to maintain confidentiality, which means neither shall inform the court why the collaborative process broke down and no agreement was reached.

Either party may terminate the collaborative process at any time without providing a reason.

Collaborative law is a good alternative process for resolving disputes outside of court. In family law, especially, early settlement increases a party’s satisfaction, decreases unnecessary expenditure of time and money, promotes civility, provides for greater flexibility, spares the children from being the object of the feud and brings closure more rapidly to the parties and family as a whole.

The Collaborative Law Institute of Illinois has long advocated for the adoption of the Uniform Collaborative Law Act in Illinois and if Senate Bill 31 is adopted, it will have a tremendous impact on the growth and development of collaborative law in Illinois. The act has been enacted already in Utah, Nevada and Texas and several other states have introduced it.

Like other uniform acts, this one has the benefit of providing consistency regarding the basic requirements for a collaborative law agreement and enforcement of these agreements across state and international lines.

However, even without its adoption, collaborative law is a viable alternative dispute resolution process in Illinois. When parties reach an agreement, they prove it up as they would any other divorce case by asking the court to approve and incorporate their agreement into the final judgment for dissolution of marriage.

More information about collaborative law can be found at collablawil.org.

Article originally appeared in the March 2013 issue of Chicago Lawyer.