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April 19, 2024

Status of the Uniform Collaborative Law Act and Rules

Robert J. Merlin, Esquire

The Uniform Law Commission created the Uniform Collaborative Law Act (UCLA) in 2009. The purpose of the UCLA was to promote the adoption of statutes regulating the use of the Collaborative Process throughout the United States so the use of the Collaborative Process would be consistent between the states. The Uniform Law Commission realized that the format of the UCLA, solely in statutory form, would not be adopted in many states because it included the disqualification of attorneys if the Collaborative Process was terminated, and the regulation of the practice of law is done by the highest court in most states. Laws are passed by legislatures, not courts, but the regulation of the practice of law is mostly controlled by the courts, not legislatures. The Uniform Law Commission then adopted a mirror image of the UCLA in the form of rules, so a state could choose the format of how they would adopt what then became the Uniform Collaborative Law Rules and Act (UCLRA). In Florida, for instance, we have Collaborative statutes, a rule of professional conduct and a rule of civil procedure.

In 2011, a resolution was presented to the American Bar Association House of Delegates to approve the UCLRA as a process to be adopted by the states. Unfortunately, there was opposition to the resolution, so it was defeated. The primary objections at that time were that the Collaborative Process may be unethical because some thought a negotiation-only practice was not permitted as limited-scope representation, and because some delegates objected to the adoption of the UCLRA in the form of legislation, as opposed to only in rule form. Personally, I think the objections were due to a lack of knowledge and a fear of a new process.

The UCLRA was not presented to the ABA House of Delegates again until February 5, 2024 when the following Resolution was adopted unanimously:

RESOLVED, that the American Bar Association approves the Uniform Collaborative Law Rules and Uniform Collaborative Law Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2010, as appropriate Rules or an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.

The Resolution passed, thanks to the hard work of a number of people, especially University of Nebraska Prof. Kristen Blankley, the top leadership of the ABA Dispute Resolution Section and a hand-full of attorneys who devoted time and energy to ensure that the Resolution would be adopted.

So, what will the adoption of the ABA Resolution mean? So far, the UCLRA has been adopted in 22 states and the District of Colombia, and it is currently pending in Kentucky and Missouri. California has a “Collaborative” statute that was adopted before the UCLRA was adopted, but it is very limited, and it does not come close to covering all the issues that the UCLRA addresses. North Carolina passed its own version of Collaborative statutes that only apply to family matters, but in 2020 they adopted the UCLRA to apply to non-family matters. Pennsylvania adopted the UCLRA in 2018 that applies to a broad spectrum of matters involving families, because they broadly defined who could use the UCLRA.

Some states seem to be opposed to uniform laws, so it may be difficult for them to adopt the UCLRA there. Generally, adopting new laws is an arduous process that can take many years. Attorneys, other professionals and court systems are being asked to step out of their comfort zone to try something “new”. For some people, that is difficult to do, especially when dealing with legislatures and the judicial systems in the states. I spent ten years getting the UCLRA adopted in Florida. My experience is that more and more attorneys and other professionals are becoming fed up with how disputes, especially family matters, are being handled. I see a definite trend toward creating more peaceful resolution systems, of which the UCLRA is an integral part.

As our world becomes more mobile, the need for the UCLRA increases. It is not unusual for a couple to have assets in two different states, including multiple homes. It is certainly common for businesses to have a presence in many, if not all states. By adopting the UCLRA, a state, businesses and individuals can ensure that there is greater consistency and predictability in how disputes are resolved. Further, as the National Center for State Courts has recognized, our judicial system needs to change how it has traditionally tried to meet the needs of the citizens. Many courts cannot handle the volume of cases that are filed. Further, the courts were not traditionally created to meet the needs of families, such as unemployment, mental health issues and other health issues. The Collaborative Process can benefit not only individual families and businesses, but it can also benefit the entire legal system. By reducing the number of cases that are filed and by dramatically reducing the amount of post-judgment litigation that takes place, entire court systems can reduce the burden on the courts, save money and better serve the needs of its citizens.

As Abraham Lincoln said, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” The UCLRA is an example of what President Lincoln recommended more than 150 years ago.

Robert Joseph Merlin

Certified Family Mediator

Robert Joseph Merlin was admitted to The Florida Bar in 1979. He exclusively practices family law and specializes in the Collaborative Process. Bob is Florida Bar Board Certified in Marital and Family Law and is a Certified Family Mediator. He is a former board member and Treasurer of the International Academy of Collaborative Professionals and is the Immediate Past President of the Florida Academy of Collaborative Professionals. Bob is an Adjunct Professor of Collaborative Law at the University of Florida and he was the point person for the adoption of the Collaborative Process statutes and rules in Florida. [email protected]

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