Some might expect, with two attorneys, two specialists, a coach,
and sometimes additional jointly retained experts, the collaborative
approach is prohibitively expensive. Not so. The Minnesota
collaborative group has tracked this issue and learned an average
collaborative divorce costs the parties less than $15,000 (total, not a
piece).
Traditionally litigated divorces, with the usual complement of issues,
which can involve two lawyers, accountants, appraisers, psychologists,
parenting investigators, and more, often fly past that amount,
sometimes in the early stages.
The Process Travels. Webb’s idea caught on fast and traveled far.
It is widely embraced and used in Canada where, in certain regions,
it has become a nearly exclusive process for divorcing couples.
Europe, where it spread like wildfire, saw its value early. So, too,
Australia, where it is in widespread use. In the U.S., in many states,
and particularly metro areas, there are strong collaborative practice
communities.
Consequently, how curious that collaborative negotiating was over
20 years old before it made its way the short distance up Interstate 94
to North Dakota. It was in 2011, when three Fargo practitioners first
received training. The next year, a training was held in Fargo and 17
lawyers, mental health providers, and financial professionals received
theirs, too. Today, approximately 100 North Dakota professionals,
mostly lawyers, have been collaboratively trained.
those situations, including communication, competence, diligence,
and confidentiality.”
Of all the state bars whose ethics committees have considered
collaborative practice, Colorado aside, all have found it passes
ethical muster. In Opinion No. 12-01, SBAND’s Ethics Committee
rejected the Colorado opinion. It aligned itself firmly with the
ABA and majority view and slyly noted, “Colorado itself now has a
Collaborative Law Task Force.”
Challenges. Today, despite its strengthening foothold, collaborative
practice still faces difficult challenges in North Dakota. Perhaps none
more than that it is a rural state. Full-blown collaborative negotiating
requires mediation-trained, collaboratively-trained lawyers, mental
health professionals, and financial professionals. In the state, such
a collection of professionals is likely to be found only in the larger
cities. Today, Fargo has a strong collaborative community, and with
the UND training, Grand Forks is poised to follow.
The next challenges will be to strengthen current practice groups,
provide more training opportunities, and introduce the method to
the state’s western colleagues.
Are you interested in knowing more about collaborative negotiating?
Do you have a client you’d like to refer into this process? If so, please
visit NDdivorce.com, where you’ll find a colleague eager to tell you
more.
The Collaborative Process in North Dakota. The North
Dakota legal community has demonstrated a growing commitment
to this ADR newcomer. For example, in 2014, the North Dakota
Collaborative Divorce Group adopted bylaws and established its
existence as a 501(c)(3) entity. It is North Dakota’s chapter of the
International Academy of Collaborative Professionals. The group
holds regular meetings, maintains a website, and introduces the
method to kindred colleagues.
In 2016, North Dakota became an early adopter of the Uniform
Collaborative Law Act (UCLA), an act in which Uniform Law
Commissioner, the Hon. Gail Hagerty, had a hand. With her support
and the input of the North Dakota Collaborative Divorce Group, the
Joint Procedure Committee adopted the UCLA as North Dakota
Rule of Court, Rule 8.10.
Before any of this, the state’s collaborative law promoters sought an
opinion from SBAND’s Ethics Committee. Detractors and naysayers
challenge the collaborative approach on conflict grounds. They say
it must be an impermissible, un-waivable conflict under Rules of
Professional Responsibility, Rule 1.7(a) for a lawyer to agree to a
possible automatic discharge. Colorado Bar Association Ethics
Opinion 115 agrees with this sentiment but stands alone.
Shortly after the Colorado Bar issued its opinion, the American
Bar Association (ABA) responded. In its Formal Opinion 07-447,
the ABA found the collaborative approach ethically compliant and
noted, “[m]ost authorities treat collaborative law practice as a species
of limited scope representation and discuss the duties of lawyers in
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