Promoting Informed Use and Best Practices for ADR in Washington
Whereas the Washington Uniform Law Commission has proposed the adoption of the Uniform Collaborative Law Act/ Rules for adoption in the State of Washington; and
Whereas the Commission has requested that various interest groups, the bar, and other interested parties provide any comments, opinions or positions to the Commission relative to the proposed act/rules; and
Whereas the Judiciary Committee of the Washington State Legislature has set a working session on December 2, 2011 at which the Uniform Collaborative Law Act/Rules will be presented for comment; and
Whereas the process of collaborative law is a method of alternative dispute resolution which is currently being used in the State of Washington, serves the interests of the public, and provides a process for resolution of disputes by the parties outside of the litigation process;
Now therefore be it resolved that the WSBA Alternative Dispute Resolution Section support passage in the State of Washington of rules and necessary statutes to adopt the provisions of the Uniform Collaborative Law Act/Rules as a process for alternative dispute resolution in the State of Washington.
Commentary and report of committee.
The Collaborative Practice began in the United States in the early 1990’s as an alternative method of resolving disputes outside of litigation. Primarily utilized in family law disputes, the Collaborative Practice has also been used in civil disputes in other areas of the law such as probate and trusts, business and contracts. In Washington, thousands of attorneys and other professionals have been trained in the Collaborative Practice and hundreds of attorneys are active in offering Collaborative services.. The Uniform Law Commission adopted a Uniform Collaborative Law Rules and Uniform Collaborative Law Act in 2009, which was revised and amended in 2010. The Washington Uniform Law Commission has presented the proposal for consideration in Washington, but no legislation has been proposed in the state legislature. Three states have enacted the provisions of the proposed Rule/Act, Nevada and Texas by statute, and Utah by a combination of court rules and statute. Proposals are currently pending in Alabama, the District of Columbia, Hawaii, and Massachusetts. The Chair of the Washington House Judiciary Committee, Representative Pederson, also a member of the Uniform Law Commission, has expressed an interest in introducing the proposed legislation, and has scheduled a working session of the committee on December 2, 2011 to address the issue and obtain input from interested parties.
The ADR Section’s Legislative Committee throughout this year has promoted a discussion on the proposed act and rules, including participation in meetings with interested sections and groups and promoting focus group discussion among practitioners of collaborative law and other attorneys. The discussion focused on three primary questions; whether the provisions should be adopted in Washington, whether the proposal be adopted by rule or by statute, and whether any enactment should be limited to family law matters. As a part of this discussion, the committee held an open forum on November 17, 2011. Among the participants in the forum were attorneys from a wide spectrum of practice. Attendants at the forum included representatives of other WSBA Sections and groups, including the Superior Court Judges Association, the King County Coalition Against Domestic Violence, the WSBA Board of Governors, and the Washington State Association for Justice. Notably, the attendants at the forum overwhelmingly, 100%, expressed the sentiments that the proposal should be adopted in the State of Washington, that the enactment should be by a combination of court rules and statute, and that the enactment should not be limited to family law or other areas of the law.
Overwhelmingly, there is support for the enactment of the provisions of the proposed rules and act in the State of Washington. A significant number of practitioners are engaged in the practice and a large number of consumers are served by the process. A significant factor in considering the enactment of the proposal by rule or statute is the question of the regulation of the law through statutory enactment. Another significant factor is the creation of the privilege that is a part of the Collaborative process. In the State of Washington, the creation of a privilege is by statute. Accordingly, some bifurcation of the proposal by rule and statute would be most appropriate in any enactment in the State of Washington. That the Collaborative Law process has growing potential and use for conflict outside of family law conflicts, it should not be limited in its application.
The intent of the Legislative Committee in proposing the resolution is not to support any specific legislative proposal in the State of Washington. Indeed, none is currently pending. Rather, the intent is that the proposal of the Uniform Collaborative Law Rules and Act be enacted in the State of Washington to define and regulate the process, to protect the consumers and practitioners, and to provide uniformity in the practice; that the proposal be enacted by rules relative to the provisions of the regulation of the practice and by necessary legislation to create the privilege that is a part of the process, without limitation to a particular area of practice. This does not endorse the proposal as written by either rule or statute. In order to bifurcate the provisions, an examination of the related provision need be carefully examined. Presumably, the consensus of the legal community thus far expressed through the discussions which have been held will yield a specific proposal to meet the need of the State of Washington, about which every interested party will have an opportunity for further comment and consideration. The committee believes that the resolution expresses this intent without endorsement of a specific legislative proposal which is yet to be.