Page 21 - Tacoma-Pierce County Lawyer Magazine - September October 2018

I challenge those who view “cooperative law” as a substitute for collaborative law to continue to make the paradigm shi – to fully embrace collaborative law as an alternative to litigation, the high road, and to see “cooperative law” for what it is – a wolf in sheep’s clothing, or, essentially, the same as litigation.
When does the term “cooperative law” arise? Many attorneys view it as a substitute for collaborative law, because they fear that their client will “lose” their attorney. ey point to the disquali cation provision of a Collaborative Law Participation Agreement as somehow a negative provision.
The UCLA de nes a Collaborative Law Participation Agreement as follows:
(2) "Collaborative Law Participation Agreement" means an agreement by persons to participate in a Collaborative Law process.
RCW 7.77.010(2).
Disquali cation of Collaborative lawyer and lawyers in associated law rm.
(1) Except as otherwise provided in subsection (3) of this section, a collaborative lawyer is disquali ed from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter.
(2) Except as otherwise provided in subsection (3) of this section and RCW 7.77.090, a lawyer in a law rm with which the collaborative lawyer is associated is disquali ed from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter if the collaborative lawyer is disquali ed from doing so under subsection (1) of this section.
(3) A collaborative lawyer or a lawyer in a law rm with which the collaborative lawyer is associated may represent a party:
(a) To ask a tribunal to approve an agreement resulting from the collaborative law process; or
(b) To seek or defend an emergency order to protect
the health, safety, welfare, or interest of a party, or family or household member, as de ned in RCW 26.50.010, if a successor lawyer is not immediately available to represent that person.
(4) If subsection (3)(b) of this section applies, a collaborative lawyer, or lawyer in a law rm with which the collaborative lawyer is associated, may represent a party or family or household member only until the person is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of the person.
RCW 7.77.080
e CLPPC Participation Agreement further de nes
the disquali cation provision as the “Collaborative Law Commitment” – a commitment made by the collaborative
law professionals and their clients to work together toward a resolution rather than to work against each other to escalate the con ict.
e disquali cation provision is the key component of a Collaborative Law Participation Agreement. It is what makes
a matter a collaborative law matter and not litigation. As Stu Webb has taught us, removing court as an option allows for the participants to engage in a discourse without the threat
or fear of litigation and with the freedom to create their own solutions to their own problems in a safe container facilitated by collaborative law professionals. With no ability to resort to court at the slightest hint of an impasse, participants are able to search for creative solutions, conduct further homework, dig beneath the subterranean, look at underlying interests, listen
actively to one another and – in time – positive solutions to problems and issues can then immerge.
What also makes the collaborative law process work well is
our use of a team approach with allied professionals, such as a coach and a child specialist with background and education and training in child development, family therapy, mental health issues, psychology, and social work, and such as a nancial specialist with background and education and training as a Certi ed Professional Accountant (CPA) or as a Certi ed Financial Planner (CFP). is makes the process cost-e ective – as each professional is able to focus attention to those speci c issues. Because a dissolution of marriage matter involves legal, emotional, communication, nancial, and children’s issues
– a team approach allows each area to be addressed by the appropriate professional – so the participants and their children are then able to move forward with their families recon gured in a healthy manner. Lawyers focus on legal issues, act as advocates, advise their clients, while working together with neutral professionals, who work with the couple, the children, and the family. A coach helps a couple to de-couple as husband and wife. A child specialist helps parents hear the voice of
the children to arrive at a parenting plan that is best for their children. A nancial specialist – trained as a Certi ed Divorce Financial Analyst (CDFA) - helps a couple to gather nancial information, to generate nancial reports, including budgets
for each household (to allow for a smooth transition from
one (1) household to two (2)) and including an inventory of assets and liabilities, so clients make informed decisions about the valuation and division of assets and liabilities through the brainstorming process while analyzing various scenarios to determine which serves both best. If needed, a neutral expert, such as an appraiser or a CPA (not engaged as a nancial specialist), can be engaged to value assets such as real property, pensions, or a family owned business.
So called “cooperative law” does not involve the use of allied professionals, such as coaches or child specialists or nancial specialists, or the use of neutral experts. If engaged, they are not protected by the con dentiality provisions of a participation agreement and the provisions of the UCLA. More importantly, clients are not protected, as so called “cooperation” within the context of litigation with case schedules and deadlines and trial dates set by the court, can end (even abruptly – and even on
the eve of trial – such as when an impasse is encountered – and clients and attorneys can o en resort to the “easy way out” with language and threats such as - “I will see you in court” or “I will take this to trial” or “let the judge decide.”). Such a practice can mean that the work product and communications of allied professionals and neutral experts can ultimately be used in litigation. In a collaborative law matter, such work product is only admissible if “otherwise compellable by law” (i.e., sworn nancial statements) or if the participants agree.
Nevertheless, many attorneys continue to view “cooperative law” as an alternative to collaborative law. Some say, “I settle my cases anyhow” or “most cases settle anyhow.” While the rate of settlement before trial is 98.2% - See e New Lawyer by Julie Macfarlane – 2008 – there is a qualitative di erence between
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September/October 2018 | PIERCE COUNTY LAWYER 21