Monday, July 19, 2010
DiFonzo: "A Vision for Collaborative Practice: The Final Report of the Hofstra Collaborative Law Conference"
J. Herbie DiFonzo (Hofstra University School of Law) has posted "A Vision for Collaborative Practice: The Final Report of the Hofstra Collaborative Law Conference" (Hofstra Law Review, Vol. 39, p. 101, 2010) on SSRN. Here is the abstract:
In November 2009, Hofstra University School of Law’s Center for Children, Families and the Law hosted a Conference on the Uniform Collaborative Law Act, in conjunction with the Uniform Law Commission, the Association of Family and Conciliation Courts, the International Academy of Collaborative Professionals, and the American Bar Association Section of Dispute Resolution. This event marked the first time a law school has sponsored a conference exclusively focusing on the innovative practice of collaborative law.
The goal of the Conference was to assess collaborative practice in light of the adoption of the Uniform Collaborative Law Act (“UCLA”). This Report addresses the central concerns of collaborative practice in eight parts. Part II deals with the collaborative lawyer’s extended responsibilities in assuring that the client fully understands the collaborative law participation agreement. Because the disqualification clause forbids lawyers from representing a client in litigation of a matter which the lawyer handled as part of the collaborative process, obtaining the informed consent of a client to this relatively new concept is critical. Part III discusses the circumstances which trigger a lawyer’s duty to cease representing a client in a collaborative process. Collaborative lawyers must withdraw from representation if either party commences litigation in a collaborative law matter, or if a client violates certain provisions of the collaborative law participation agreement.
Part IV analyzes the disclosure of information requirements. Collaborative practice disavows formal discovery. Instead, as the UCLA provides, “a party shall make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery.” This section analyzes the role of information exchange in collaborative practice. Part V addresses issues in connection with the substantial involvement in collaborative practice by professionals with expertise in mental health, mediation, and financial planning, often as third-party neutrals hired jointly by the parties. Part VI discusses the UCLA’s requirement that a lawyer “make reasonable inquiry [into] whether [a] prospective party has a history of a coercive or violent relationship with another prospective party.” This section examines whether collaborative law may provide a reasonable ADR method for victims of domestic violence.
Part VII explores the world of civil collaborative practice. While most collaborative lawyers today practice family and matrimonial law, the methodology has expanded to civil disputes generally. This section considers particular concerns about collaborative practice in those areas. Part VIII discusses key issues in access to justice and vulnerable populations. Collaborative practice at present primarily serves wealthy clients, because retaining a team of collaborative professionals for each case is quite expensive. At the same time, collaborative practice offers clients the potential for a less expensive and more durable resolution than litigation. This section analyzes the UCLA’s provisions modifying collaborative law to afford greater representation to low income clients, as well as several practical ways that collaborative practice may be adapted to serve that same population. Part IX focuses on the education and training of future collaborative lawyers. How should law schools and professional groups allocate their resources to ensure the proper development of this new practice methodology? Finally, the conclusion suggests that the radical heart of collaborative law has the potential to convert dispute resolution to peacemaking.