The Illinois Collaborative Process Act: A Positive Alternative to Litigation for Family Disputes
By Rachel Hernandez
The Collaborative Process Act, Senate Bill 67, was signed into law by Governor Rauner on August 18, 2017, and while this news has left some family lawyers skeptical, wondering whether it affects them at all, or how it differs from mediation; long time Collaborative Professionals recognize the Act as a substantial step toward the paradigm shift of collaborative practice and its expansion here in Illinois. The new law took effect on January 1, 2018 and Illinois will join 15 other States and the District of Columbia in utilizing some version of the Act. and Illinois will join 15 other States and the District of Columbia in utilizing some version of the Act.1 While collaborative practice laws only exist in a small number of States, the Collaborative model is practiced, in some form, in every State in the U.S. and in an estimated 25 countries globally.
According to Margaret Bennett, a DuPage County Family Law Attorney and drafter of family law legislation, “The passage of the Illinois Collaborative Process Act is the final phase of the complete overhaul of Illinois family law statutes. The Illinois Collaborative Process Act follows the rewrite of the Illinois Marriage and Dissolution of Marriage Act, the Parentage Act of 2015 and the new income shares child support legislation. Illinois is now one of the leaders in child centric and family focused legislation.”
The History of Collaborative Practice
Lawyers working in a collaborative manner, negotiating in a way that results in mutually acceptable agreements surely is as old as the profession itself. The use of such interest-based negotiations is thoroughly described in National bestselling book, Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher, William Ury, and Bruce Patton.2
Collaborative Law has developed over the past 25 years since founded by Stu Webb, a Minnesota family law litigator who in 1990, declared himself a “collaborative lawyer,” and began representing clients solely for the purpose of negotiation. Later, in the early 1990s, Pauline Tesler, a California attorney introduced Stu Webb’s “Collaborative Law” to a group of family psychologists and financial professionals who were working on an interdisciplinary approach to divorce. The two approaches blended to form the Collaborative model widely utilized by practitioners today. Early acceptance of the model was demonstrated when Webb and Tesler were awarded the first “Lawyer as Problem Solver Award,” in 2002 by the ABA Section of Dispute Resolution for their work in this area. Tesler has since become known as one of the pioneers of the Collaborative Law movement and attributed with responsibility for much of its growth. Her book, Collaborative Practice, Achieving Effective Resolution in Divorce Without Litigation,3 first published by the American Bar Association in 2003, delineates the facets of the process and is now in it’s third edition. This book is a great first step for an attorney considering adding the Collaborative Process to their practice.
How The Collaborative Process Differs from Mediation
The Collaborative Process is distinctly different from mediation. Paragraph two (2) of the Preamble to the Illinois Rules of Professional Conduct sets forth the representational functions of a lawyer to his or her client: “As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.”
A Mediator, conversely, is a neutral professional (not necessarily a lawyer) who does not dispense advice but rather facilitates communication and negotiation between the parties directly. And, when a lawyer is acting in the role of mediator, Rule 2.4 of the Illinois Rules of Professional Conduct also set forth certain requirements in order to make clear that the lawyer does not represent the parties.4
The Illinois Collaborative Process Act defines a “Collaborative Process Lawyer” as, “a lawyer who represents a party in a collaborative process and helps carry out the process of the agreement, but is not a party to the agreement”.5
The Collaborative Process is distinctly different from family law mediation in that the parties are each represented by their own lawyer, who is alongside them through the process. The lawyer is present to advise, advocate, negotiate, and evaluate on behalf of their client. The attorney owes the same representational functions to their client as set forth in the Rules of Professional Conduct, with one critical difference. The lawyer in a collaborative process operates under the rules of the adversary system in a limited scope capacity only, after the agreements are signed, to file the Petition and the Appearance, attend the Prove-up and do all tasks needed to secure the entry of the final Judgment and other final orders by consent of the parties.
Opting Out of The Adversary System – No, It’s Not Just for “Nice” People
The Illinois Collaborative Process Act defines “Collaborative Process,” as “a procedure intended to resolve a collaborative process matter without intervention by a court”.6 This necessarily removes the matter from the “Adversary System,” however does not change the fact that there are often serious conflicts between the parties. While it is not a process that can work for everyone, it is definitely not “just for nice people,” nor is it “Kumbaya” in either the sincere folkloric, nor the degraded political sense of the word.
Two people who have decided that, for any number of reasons, they need to permanently part ways, cannot reasonably be expected to “just get along.” The parties to a divorce have real conflicts and have legal rights and responsibilities that they need to understand. This is particularly, and uniquely true in the area of family and domestic relations when children are
involved, given the inextricable nature the co-parent relationship. Litigating issues surrounding children and finances, the very issues that may have led the parties to seek dissolution of their marriage, can create the perfect storm for the conflict reaching new heights.
While statistical data regarding settlement rates among family and domestic relations cases in DuPage County is not readily available, it is well known that the vast majority of cases conclude without a hearing or a trial and, no, not just “nice” ones settle. Indeed, negotiating settlement under the threat of impending litigation in the traditional model can be extremely acrimonious and take significant financial and emotional tolls on parties, making already tense situations worse. Family Law Attorney Chris Farish, of Quaid Farish, LLC., and current president elect of the International Academy of Collaborative Professionals, practices in the area of collaborative family law and family law litigation. According to Mr. Farish, “the Collaborative Process allows clients to remove the pending threat of litigation, which can hang like the sword of Damocles over traditional divorce settlement negotiations, and allow the clients to focus solely on resolution of their dispute in a dignified manner focused on interests and goals.”
Collaborative practice is a positive alternative to solving family disputes and issues outside the litigation model. This is not to say, however, that Collaborative Practice is “one size fits all”. Situations involving extreme domestic violence, extreme mental illness, or unwillingness to cooperate in financial disclosure, among others, are typically inappropriate for the collaborative process. Each individual situation is unique and requires the evaluation by an attorney. “Long time Collaborative attorney and former President of the Collaborative Law Institute of Illinois, Sandra Crawford, reports that she spends two hours at an initial consultation talking to new clients about the different process options (litigation, mediation, Collaborative Process) and helping clients to determine, whether their unique circumstances will lend themselves to resolution using the Collaborative Process or whether litigation or mediation are the better options. Informed consent is a critical part of having clients take ownership of their process and their outcomes.
At its core, the Collaborative Process is a form of “Limited Scope Representation,” or “unbundling,” which has long been provided for in The Illinois Rules of Professional Conduct, RPC 1.2(c), which provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”7 The Act specifically delineates the role of the lawyer in this context to provide all of the functions of a lawyer excluding services for contested litigation. It is also the role of the lawyer to ensure that the case is appropriate for such representation and that the client gives informed consent to participate in the process.
Third Party Neutral Professionals
The Collaborative model provides for each client to have the support, protection, and guidance of his or her own lawyer and other professionals who form an interdisciplinary team. The other professionals can include: a Neutral Child Specialist, a Financial Neutral, or a Collaborative Divorce Coach (sometimes also referred to as a Communications or Process Coach). Professional teams are configured to fit the particular circumstances of each case and can be more efficient than the “battle of the experts,” that can occur in litigation.
Child Specialists are licensed mental health professionals with expertise in child development and family systems. The role of the neutral child specialist is to help parties navigate the divorce process with the goals of minimizing any negative impact on their children, developing effective co-parent relationships, and preserving healthy parent-child relationships.8
Financial Specialists are typically either Certified Divorce Financial Planners (CDFP) or Certified Divorce Financial Analysts (CDFA), they do not represent either party in the Collaborative Process. Their role is to help the parties understand their current financial situation, brainstorm possible settlement options, and educate them regarding tax and other implications of the various settlement options so that they may intelligently analyze and compare them.
Divorce Coaches are divorce professionals with a background in mental health. While a divorce coach may be a therapist, he or she does not act as a therapist for either party, rather their role is to assist the parties in remaining future focused and goal-oriented in order to help guide the parties through the emotional bottlenecks that often slow down the divorce process.
Depending on the issues involved in each particular case, utilizing one or more neutral professional can assist the parties in getting through the emotional crisis of divorce in a way that minimizes damage to the parties and provides tools for future co-parenting.
Standards of Practice and Training Requirements
Although the Collaborative Process Act itself does not require an attorney have any specified training in order to participate in the Collaborative Process, both the International Academy of Collaborative Professionals and the Collaborative Law Institute of Illinois have set forth Standards and Ethics for Collaborative Practitioners. Both sets of standards echo the years of continuous efforts to cultivate, revise, and adopt common practices among Collaborative Professionals.
A clear understanding of the method is important prior to undertaking a collaborative case is an essential first step for any professional looking to become a Collaborative Practitioner. A twelve to fifteen hour introductory training in CP and additional communication skills training (generally in the area of mediation) are the recommended first steps. Such training educates professionals in the core elements of Collaborative Law and how these are different from settlement negotiations in the context of conventional litigation.
Training & Networking Opportunities
When embarking into the unknown territory of a new practice area, training as well as mentorship from more seasoned practitioners can prove extraordinarily fruitful. Long-time collaborative practice lawyers recommend that before offering this model to clients, both the Basic Collaborative Skills Training and a 40-hour Meditation Training are attended. Certificates for both are required for entrance as a Collaborative Fellow in the Collaborative Law Institute of Illinois, a statewide organization dedicated to the promotion of the model to the public and to educational and networking opportunities for all professionals offering Collaborative Process services.
Introductory training in Collaborative Practice is essential for all the professionals involved, not just the lawyers. Clients benefit throughout the process from the assistance and support of their professional team. The professional team by virtue of their common training in the model, speaks the
common language of Collaborative Practice. With the help of an understanding and responsive professional team (which can address all facets of their dispute – legal, financial and emotional), clients are better able to negotiate their own agreements. The process involves in-person negotiations, which lead to honest, voluntary, future-focused and mutually beneficial arrangements.
Upcoming training and networking opportunities can be found on the website for the Collaborative Law Institute of Illinois (CLII) at www.collablawil.org or at the website for the International Academy of Collaborative Professionals (IACP) at www.collaborativepractice.com.
With the enactment of the Collaborative Process Act on January 1, 2018, this already well established model of alternative dispute resolution will be more formally recognized in Illinois and will give practitioners another “tool in their tool boxes” to help families and separating couples. While a somewhat kinder, gentler alternative to litigation, it is nevertheless a model that has well defined guidelines and safeguards built in to assure that the public is protected. It is expected that passage of the Act will result in the expansion of Collaborative Practice groups throughout the State.
1. Uniform Law Commission, The National Conference of Commissioners on Uniform State Laws, www.uniformlaws.org
2. Roger Fisher and William Ury, Getting To Yes: Negotiating Agreement Without Giving In (2d ed, 1991).
3. Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution In Divorce Without Litigation, (3d ed. 2017).
4. Illinois Rules of Professional Conduct Rule 2.4, Lawyer Serving as Third Party Neutral
5. Collaborative Process Act, 2017 Bill Text IL S.B. 67
6. Collaborative Process Act, 2017 Bill Text IL S.B. 67
7. Illinois Rules of Professional Conduct Rule 1.2(c)
Rachel Hernandez, founder of Hernandez Hoag Legal Solutions, LLC, focuses her practice on providing peaceful resolutions to family related and first offender criminal matters. Her prior experience includes serving as an assistant state’s attorney and handling cases in an “of counsel” and/or volunteer capacity for government, not-for profit, and private law firms. Rachel is a member of the International Association of Collaborative Professionals, the Collaborative Law Institute of Illinois, the Illinois State Bar Association (serving on the Solo Small Practice Committee), the Kane County Bar Association, DeKalb County Bar Association, and serves on the Community Crisis Center Board of Directors and Northern Illinois Alumni Council.