Winter 2019 Gavel Gavel Winter 2019 - Page 7

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, 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 WINTER 2019 7