Uniform Collaborative Law Act Passes in Washington State
On May 3, 2013, Governor Inslee signed into law the Uniform Collaborative Law Act ("UCLA"). This law formally establishes Collaborative Law as a unique legal process to resolve legal issues distinct from mediation, arbitration, and traditional adversarial (court) processes. Washington is the seventh state to enact the UCLA.
The UCLA establishes how Collaborative Law is to be practiced in Washington State and standardizes the most important features of collaborative law participation. Historically, legal representation has been based upon the concept of adversarial process. Together with negotiation and mediation, collaborative law is a form of alternative dispute resolution designed to address family law issues without court intervention. The collaborative process is a voluntary, structured, non-adversarial approach to resolving disputes in which both parties and their attorneys use an interest-based approach to work together to resolve disputes. This is in contrast to litigation which focuses on legal positions over the parties' interests.
The Act's Treatment of Collaborative Law Participation Agreements
The UCLA requires use of a Participation Agreement which defines each lawyer and participant's role in the process, states the parties' intention to resolve the matter (issue for resolution) through collaborative law, contains a description of the matter and identifies and confirms engagement of the collaborative lawyers.
When the Process Begins and Terminates
Under the UCLA, the process begins when parties sign a participation agreement, and any party may unilaterally terminate the process at any time without specifying a reason. The process is concluded by a negotiated, signed agreement resolving the matter, or a portion of the matter and the parties' agreement that the remaining portions of the matter will not be resolved in the process.
Several actions will terminate the process, such as a party giving notice to do so, beginning a legal proceeding, or the discharge or withdrawal of a collaborative lawyer. It further provides that under certain conditions the collaborative process may continue with a successor collaborative lawyer in the event of the withdrawal or discharge of a collaborative lawyer.
Automatic Stay of Court Proceedings
The Act provides that if the collaborative process begins after court proceedings have begun, those proceedings will stop once the parties file a notice of collaborative law with the court. However, a court may still issue emergency orders to protect the health, safety, welfare, or interests of a party or to protect financial or other interests in any critical area.
Disqualification of a Collaborative Lawyer
With limited exceptions, should the collaborative law process terminate without the matter being settled, the collaborative lawyer is disqualified from representing a party in a proceeding before a court in the same matter, except to seek emergency orders or to approve an agreement resulting from the collaborative law process.
Disclosure, Confidentiality and Evidentiary Privilege
Parties in the process must, upon request of a party, make timely, full, and informal disclosure of information related to the collaborative matter without formal discovery, and promptly update information that has materially changed. The Act further provides that oral and written communications developed in the collaborative process are confidential to the extent agreed by the parties or as provided by state law, and, with limited exceptions, creates a broad privilege prohibiting disclosure of communications developed in the process in legal proceedings.
The UCLA formalizes what were informal collaborative law guidelines into law, and creates new rules governing the interaction between the court and collaborative law practice and procedures. By doing so, those using the collaborative process can be reassured the process will bound to a consistent set of rules and be recognized by the courts as an additional form of alternative dispute resolution.
For more on Collaborative Law and Collaborative Divorce, see our post: Collaborative Law Divorce: Is it Right For Me?