Collaborative law, an emerging area of law practice here, allows opposing sides in certain civil cases to join the same team to cooperate in resolving disputes.

Instead of working as adversaries, participants in collaborative-law cases commit to work together from the outset toward a settlement, says John Burke, managing partner of Burke Law Group PLLC, of Spokane.

The Washington state Uniform Collaborative Law Act, which went into effect last July 28, spells out standards and responsibilities for attorneys involved.

 “The new law gives collaborative law a lot of validity within the legal community,” Burke says. “It says collaborative law is an accepted and endorsed way to practice.”

Collaborative law isn’t entirely new, though. Burke says he’s been practicing it here since 2006, and it’s been evolving since it was first put into practice in Minnesota in 1990.

Collaborative law is most commonly used in divorce cases, but also can be used in many other civil cases, such as workplace and employment conflicts, probate disputes, business and contract law issues, and “any time there is a desire or need to continue a relationship afterward,” Burke says.

Glenn E. Tanner, a solo attorney in Spokane, says he worked with Burke on the first collaborative law case in Spokane. Today, about 60 percent of his caseload involves collaborative law, he says.

Collaborative-law cases can be resolved quicker than conventional litigation, Tanner says, adding, “It proceeds at a pace that participants want to proceed rather than at the court’s pace.”

All divorce cases require a 90-day waiting period after initial divorce petitions are filed until further documents can be filed. Collaborative divorces often are settled during that waiting period, Tanner says.

Most often, participants in collaborative cases never have to enter a courtroom, although that also can be the case with settlements in conventional cases, he says.

All collaborative-law associations require that participating lawyers receive education through trainers who meet International Academy of Collaborative Professionals standards.

“Ethically, to practice in any area, you would have to be trained,” Tanner says. 

Collaborative law is a major change from what most attorneys learned in law school, he says.

“In law school, you are taught to be a warrior for the client,” he says. “In collaborative law, participants try to put aside the war mentality and achieve a settlement through other means.”

Collaborative law can be a tool to manage conflict even for parties that aren’t amicable.

“Even in the best of cases, you’re dealing the resolution of differences, emotional issues, and complicated factual issues with multiple interpretations of law and what’s appropriate or fair,” he says.

It can be a challenge for an attorney to represent the client’s best interest while working with what would otherwise be opposing parties.

 “In collaborative law, attorneys advocate for their clients, but they don’t do the scorched-earth approach,” Tanner says. “Most clients value things besides the last nickel on the table. They value what’s happening with their children and acting in an honorable way.”

Burke says one benefit of collaborative law is that the participants, rather than courts, make the decisions toward resolving their cases.

When parties choose the collaborative-law process, they agree to reach a solution without court intervention or the threat of litigation, he says.

Attorneys involved in a collaborative case are required to withdraw if the case ends up in litigation, although it’s possible to place a stay on pending litigation and to enter into a collaborative-participation agreement.

“I’ve had three cases in which people went down the litigation path and didn’t like the way the attorneys treated their spouses,” Burke says. “You can go from litigation to collaborative law, but it’s a difficult step. It’s hard to take a step back and remove hostility.”

Dena Allen, an attorney of counsel with Burke Law Group, says that to some extent, parting spouses have to trust that they can reach an agreement respectfully.

“We’re not healing the marriage, but building trust in a different relationship,” says Allen, who has practiced collaborative family law since 2007.

In collaborative-law cases, parties agree to share all pertinent information, dispensing with the conventional discovery and deposition processes, she says.

Most information shared in a collaborative case, with the exception of criminal activity and public records, is inadmissible in any future proceeding unless all participants consent.

Burke predicts that the confidentiality aspect of the collaborative process will cause it become more attractive as a legal-practice option as people become aware of it.

The terms of a collaborative settlement agreement are sealed, he says.

“Little information is available to the public,” Burke says. In the case of a collaborative divorce for example, “The private lives, assets, and income are kept from the public eye,” he says.

With an ever-increasing volume of public records becoming available electronically, Allen says, “It’s only a matter of time before all open-court records are available online.”

Collaborative-law agreements, on the other hand, will help participants maintain their privacy, she says.

Collaborative law isn’t used in criminal cases, and it’s not appropriate for civil cases in which one party is intimidated by or has reason to fear another, Burke says. It’s also not recommended in cases in which a participant has drug or alcohol addiction.

“We screen clients. Not everyone can to it,” Allen says. “That’s one reason collaborative law training is important.”

The International Academy of Collaborative Professionals recommends that lawyers take a 42-hour educational course before participating in collaborative law, and additional annual training.

Burke, who first attended IACP training in 2006, says he’s logged more than 100 hours of additional advanced training since then.

He says the Spokane County Collaborative Professionals group has 14 attorney members, and two more attorneys are in training. The most recent continuing-legal-education seminar on collaborative law presented in Spokane attracted more than 30 attorneys, he says.

David Lohman, a Coeur d’Alene-based attorney who also has a Spokane Valley office, is a proponent of bringing collaborative law to North Idaho.

He says he and a few other Coeur d’Alene lawyers are trained in collaborative law, but haven’t handled a collaborative law case there yet, although he spends about a third of his time on collaborative-law cases in Spokane County.

“It’s a great way to solve problems, but it’s taking a long time for it to work its way over,” Lohman says.

Even under the best litigation scenario, parties on both sides of family law disputes often feel they weren’t heard by the courts when a decision is rendered, he says.

“If we can help people be their best rather than resorting to their worst fears … they’ll come up with a good solution,” Lohman says of the collaborative option. “If they thrive on conflict, they can go back to old-fashioned litigation.”

He says he receives two or three inquiries a month from North Idaho residents about collaborative law.

“The difficulty I face is when one person expresses interest, I tell them to talk with their spouse,” he says. “It’s hard to convert the other spouse sometimes.”

Burke says collaborative law is generally less expensive than litigation, although there are enough exceptions that expense alone shouldn’t be the primary driver in choosing the collaborative option.

“Sometimes it’s not (less expensive), but people are happier with creative solutions that never could be reached in a court system,” he says.

Burke says a small percentage of collaborative law participants—less than 10 percent—don’t reach a resolution.

In those cases, the participants who proceed with litigation would have the added expenses of hiring new attorneys and starting the case over.

Allen says she doesn’t advise clients that one option is less expensive than another.

“I prefer that people want to use collaborative law because they want to make decisions themselves,” she says. “It’s their solution, not the court’s solution.” 

Allen says settlement agreements contain written provisions that courts can enforce if disputes about them arise later.

“The idea is to give the court something that if it needs to be enforced, it can be enforced,” Allen says.

For example, Allen says, “With a parenting plan, there has to be an agreed-upon plan for the court to fall back on if the parties can’t parent cooperatively.”