Our courts are (and have been) ready: see In re Giddens, __ N.C. App. __, 841 S.E.2d 302 (2020).
Are you?
What is Collaborative Law?
Collaborative Law (CL) is an alternative dispute resolution method whose popularity is fast gaining speed without making any attempt to replace litigation. Instead, CL is a new and valuable tool in a lawyer's toolbox, a tool often better suited for some parties than the traditional litigation alternative. Parties typically best-suited for CL are those with a pre-existing personal relationship underlying a dispute that does not involve elements of immediate, irreparable harm (coercion, duress, embezzlement). Unlike traditional mediation, CL focuses on bringing parties to the bargaining table before litigation ensues (not after, though CL can occur post-filing). It also emphasizes “interest-based” resolution techniques, as opposed to the often inefficiently deployed positional based approach to negotiation. Simply put, interest-based negotiation techniques help parties resolve more than just the legal tip of the iceberg. The approach is far more expansive and creative, designed to develop solutions that likely would not be available through the judicial process. In the collaborative process, clients have far more of a literal voice and, after preparation and guidance from their attorney, will converse with their opposing party. CL began in the Family Law context decades ago (codified in that field in 2003 at N.C. Gen. Stat. § 50, Art. 4) and has become codified for use in the broader civil arena by the adoption of the North Carolina Uniform Collaborative Law Act (“UCLA”), which became effective on October 1, 2020. Like its domestic predecessor, the UCLA outlines key collaborative markers:
Tolling of statutes of limitations during the effectiveness of a validly executed CL Agreement;
Inadmissibility of all statements, communications, and work product arising from a CL process.
Judicial enforceability of any CL Settlement Agreement; and
Prohibition against attorneys in the CL process from becoming litigation counsel in the event of an impasse.
What practice areas are ripe for a CL spread?
With some restrictions, CL is suitable for any place where there are pre-existing, valued personal relationships where there is some possibility (even if remote) the parties would like to preserve a working, business relationship. As a trust and probate litigator, I have often engaged in some gallows humor that the practice area was “family law after the funeral", which is a perfect segue for CL. However, litigators often push back on CL, doubting its cost-effectiveness and enforceability. On many occasions, after suggesting the CL process at a dispute's outset, my colleagues respond: “the bar isn’t ready yet." Our courts are ready. Why not us?
On March 3, 2020, the NC Court of Appeals, in In re Giddens (online opinion here; online briefs here), reaffirmed that it is ready for Collaborative, and in fact has been since the 1920s. A brief summary of the Court's opinion is included below.
Giddens involved a spouse of a decedent, who timely petitioned in probate for her spousal share under N.C. Gen. Stat. § 30, Art. 4. The estate was unable to pay the full allowance, so the spouse was correctly awarded a deficiency judgment for the unpaid portion ($13,030 later reduced to $9,547.30) of the decedent's estate. A Family Settlement Agreement was acknowledged by the Court to account for specific proceeds from the sale of real estate in the estate to satisfy the deficiency judgment. In the context of that Agreement, the Court of Appeals faced the issue of whether it would enforce a Family Settlement Agreement in probate where the terms of the agreement "deviated" from what would otherwise be "guaranteed" by black letter law. In upholding the enforceability of the Agreement (so long as it did not violate public policy), the Court acknowledged, while the Agreement plainly deviates from black letter law as such deficiency judgments are only payable from personal property (seeDenton v. Tyson, 118 N.C. 542, 24 S.E. 116 (1896) (holding a deficiency is not to be satisfied from the sale of real property), “nothing in Denton restricts the rights of heirs and the estate agree, by private contract, to settle a year’s allowance deficiency judgment.” The Court made its point even clearer, to honor the sanctity of private agreements notwithstanding the mere possibility of a different outcome resulting under black letter law, quoting a decision that is nearly one-hundred years' old:
Family settlements . . . when fairly made, and when they do not prejudice the rights of creditors, are favorites of the law . . . . They proceed from a desire on the part of all who participate in them to adjust property rights, not upon struct legal principles, however just, but upon such terms as will prevent possible family dissensions, and will tend to strengthen family affection. The law ought to, and does respect such settlements; it does not require that they shall be made in accord with strict rules of law.
In the context of CL, here's what we know, and what our Court of Appeals reaffirmed: absent a violation of public policy, our Courts stand ready—as they have for 100 years—to welcome private, contractual deviations from the often constrained remedies offered through the probate system. Our Courts have done so recognizing that doing so often prevents "family dissension" and strengthens "family affection." CL simply follows the century-old admonition from our courts and in that sense, the CL ethic is nothing new.
If you are a lawyer or a prospective client who wants to learn more about CL, please contact any of the attorneys in this directory. They will lead you in a collaborative direction.
Bill Cresenzo details the practical benefits of the enactment of HB 32, formally recognizing Collaborative Law as another option for resolving civil disputes. The articles includes insights from two Collaborative Law Board Members, John Sarrat and Colleen Byers. Click the link to read more. And if you are interested in learning more about resolving a dispute collaboratively, please contact any attorney that you see on this site.
Challenges lead to Change. Traditional means and methods are often left behind and new technologies become commonplace when we emerge from shared crisis. Will this change benefit clients?
The business of traditional litigation and trial work is going to change, and these changes will be client driven. The legal profession can be slow to change, but COVID19 has reinforced that change is happening. Previously, for example, online depositions or mediations were the exception, not because they were not technologically possible, but because they had not been embraced in the legal world.
Yet, in the space of mere weeks, grandparents, kindergartners and everyone in between started Zooming together in on-line family gatherings, schools are teaching on-line and friends are enjoying remote cocktail parties. Clients will question the time and expense of having their lawyers travel to every deposition, many of which will now be taken remotely. Clients will demand these efficiencies and look for others. This is but one aspect of litigation that is changing. There are many. And these changes will be driven, as they should be, by clients.
Looking forward, what priorities do clients want served when they have a dispute? Most share the following priorities:
1) They want the ability to control the schedule of their dispute resolution, whether courts and law firms are open or closed.
2) They want efficiency, including on-line meetings and electronic information exchange to replace or at least to supplement in person meetings and engagement
3) They want expert analysis, not a battle of experts.
4) They want resolution on their terms, and they want the best result.
5) They want to preserve the relationships that matter to them and to keep their disputes confidential
6) They don’t want to break the bank to solve their problem.
7) They want finality, a binding result and not endless appeals.
While taking small steps to bend the litigation system to meet these priorities is possible, what if a more significant jump is taken to embrace them? What if we look at Collaborative Law?
Collaborative Law is an established procedural practice of law that resolves disputes in a pragmatic and efficient manner that focuses on the parties’ priorities. Used for decades in Family Law cases, it has been adapted to handle a wide range of commercial and business disputes. Collaborative Law attorneys are not only trained in the areas of law in which they practice and in the process of Collaborative Law, but also in the nature of facilitation of conversations and engagement. They are practiced in working with clients to find solutions.
The Basic Tenets of Collaborative Law include:
Participation Agreement- the parties, each represented by collaboratively trained counsel, agree in writing to use the collaborative process to resolve their dispute. Further, this participation agreement includes a provision that the parties will not initiate or pursue litigation while engaged in the collaborative process and that the attorneys may not represent either party in litigation related to the matters addressed in the collaborative process. The participation agreement may also include a confidentiality agreement. In order to expedite the process of having parties engaged in a dispute agree to the terms of a Participation Agreement, most Collaborative Attorneys use standardized forms that require little modification. Collectively the parties to the agreement become the “Collaborative Team.”
Identification of Interests and Needs- the Collaborative Team meets to share and hear from each other regarding their interests and needs. Different then making demands, or staking out settlement positions, this is a time to identify the interests, needs and concerns of the parties in a common meeting. Instead of making a demand for $100,000, a party may say, “I need to be able to make payroll.” The goal to take the parties as they are and lay out the interests that need to be considered in any solution to the issue. Counsel are trained to facilitate this discussion.
Exchange of Information- In a following meeting the Collaborative Team meets to identify and exchange information needed to find a resolution. Rather than engaging in extensive written discovery and depositions, the parties focus on the information that is actually necessary and the manner in which the information will be collected and shared. The Participation Agreement includes an affirmation that the parties will be forthcoming and provide the information relevant to resolution.
Shared Experts- If experts are necessary, the parties and counsel jointly retain a shared expert who reports to all parties and is a shared source of information.
Generation of Solutions, Evaluation and Selection of Proposals- over a series of collective meetings where all counsel and parties are present (either in person or via remote conferencing), the Collaborative Team identifies shared goals and individual interests, then generates and considers possible solutions and finally evaluates and selects a proposal that most successfully meets the parties’ needs. The meetings can be held as quickly as the parties are able to move through the process or at a more deliberate pace if appropriate.
Settlement Agreement- once a resolution is reached, the parties sign a formal and enforceable settlement agreement.
Turning back to review the priorities shared by most clients, it is evident that Collaborative Law was designed to address them. Specifically, let’s look at how Collaborative Law respects each priority:
1)Clients want the ability to control the schedule of their dispute resolution, whether courts and law firms are open or closed.
Collaborative Law is not beholden to the court’s schedule and the meetings can be conducted at a pace and frequency driven by the parties. Scheduling can be accomplished without need to rely on either Court or Arbitration Administrators and the Collaborative Team can be flexible with the frequency and pace of meetings based on the needs of the parties.
2) Clients want efficiency, including on-line meetings and electronic information exchange to replace or at least to supplement in person meetings and engagement
Collaborative Law meetings can be conducted in person in a common meeting space such an attorney’s conference room or remotely via Zoom or other online meeting platforms depending on the needs and wishes of the parties. This flexibility can accommodate not only challenges of pandemics, but also the needs for travel or other obligations that may make it difficult for each meeting to be in person.
3) Clients want expert analysis and guidance, not a battle of experts.
Rather than having each side retain their own expert to provide competing opinions, a process that is at least twice as expensive than it needs to be, the Collaborative Team discusses the nature of expertise that is required to assist the parties and then jointly hires one expert. The team then provides the information for the expert to review or provides access for inspections, etc. Rather than issuing a report, the expert meets with the Collaborative Team to review their findings and both sides have the opportunity to discuss and ask questions of the expert while all are meeting together. Rather than having to choose one competing version over another, the parties benefit from a neutral expert whose goal is not to advocate for a party, but to give collective guidance. Further, the expert can be utilized in the process of brainstorming solutions, and is not locked into ascertaining fault.
Many Collaborative attorneys work with experts who have also been trained regarding the nature of the Collaborative Law practice so that they better understand the process and are attuned to the goal of serving as a neutral expert whose role is to assist the parties. The clear efficiency and benefits of utilizing experts in this manner is one of the most tangible examples of the benefits of the Collaborative Process.
4) Clients want resolution on their terms, and they want the best result.
Most people don’t want to leave the outcome to someone else, they want some control over the result. Leaving the resolution to a jury is a risk and the reality is that a jury is limited in the resolution it can reach by the boundaries set by the law. What if a better result, more directly relevant and satisfactory may be available?
People also want to win. Many see compromise as giving up, settling as taking less then they deserve. Collaborative Law is not about compromise or settling to get less. It is opening the process to a broader range of solutions. The parties are engaged in the process throughout and Collaborative Attorneys are trained to assist the parties to find an outcome that, to the extent possible, is win for both sides. A resolution, not a compromise. This may be exchanges of services that could not be ordered by a court, it can take multiple forms, but the resolution is one that the parties work to get to together to serve their own interests. This is not Pollyanna, this is trained professionals assisting the parties to find a meaningful resolution after engaging in a process to determine the clients’ needs and interest and working to meet them.
For the sceptics, it is worth noting that Collaborative Law got its start in Family Law cases, not normally considered an area where tensions are low and emotions under control. The success of Collaborative Law in Family Law is based on the fact that it works and that rather than fueling a conflict, it is designed to find solutions.
5) Clients want to preserve the relationships that matter to them and to keep their disputes confidential
It is often the case that disputes arise between parties that have some connection that is likely to continue. In the Family Law scenario it is often the ongoing responsibility to and love for the children of the marriage that leads divorcing couples to have to work out ongoing details related to their children’s lives. A process of dispute resolution that assists in communication, and is focused on solutions not conflict is a helpful predicate to the reality that follows the signing of a settlement agreement.
Ongoing connections are not limited to Family law Cases. In business, there may be a supplier in common or a disputes may arise between subcontractors working for the same general contractor. Frequently there is an interest in working out a dispute so that it does not poison other business relationships. Collaborative Law and the opportunity it provides for not only creative and timely resolutions, but also confidential meetings and agreements can be a useful tool in such circumstances.
6) They don’t want to break the bank to solve their problem.
Results are more important than cost, but cost matters. Collaborative Law, avoiding depositions, unnecessary discovery, and duplicative experts has fundamental cost savings. Less evident, but even more significant, is the fact that Collaborative cases progress at the pace dictated by the parties, and the focus is not on the battle but the solution. This can result in significant savings in not only time, but expense.
7) They want finality, a binding result and not endless appeals.
Rest assured, that when a resolution is reached in Collaborative Law, it is binding once it is memorialized in a legally binding and enforceable settlement agreement and the conclusion of the process.
By: John Ong- a Founding Member of the Board of Directors for the North Carolina Civil Collaborative Law Association is a creative problem solver, practicing out Cranfill, Sumner & Hartzog LLP’s Charlotte office. https://www.cshlaw.com/attorneys/john-ong/
Additional Information:
There are a number of organizations that provide information about Collaborative Law. They include:
It’s hard to believe that our lives have been altered so dramatically and so quickly. On New Year’s Day this year, who had even heard of the coronavirus or COVID-19? In less than three months it seems as though everything has changed. Schools and businesses are closed. Stay at Home Proclamations have been issued. Most in-person court proceedings, as well as discovery proceedings and mediations, have been postponed. The end of the crisis is difficult to predict; and even when that end comes, there will be much catching up to do.
While much of the suffering and dislocation that is occurring and will continue to occur will be difficult to avoid or to recover from, in some areas of our lives steps can be taken to address today’s problems today. One such area is in dispute resolution where the parties and their counsel choose to resolve disputes using the Collaborative process.
The Collaborative process occurs entirely outside the court system. There is no reliance on courthouses, judges, juries, or public filing of documents. There is no need for depositions, mediations, or other in-person proceedings. Instead, the parties and their counsel agree to the exchange of needed information and meet informally to discuss their real needs and interests and to brainstorm over ways to resolve their dispute. The end result is a settlement agreement that is truly “owned” by all parties because they have been instrumental in reaching that agreement. Typically, the entire process takes a mere fraction of the time or expense of a court proceeding.
Ordinarily, these meetings take place in person. However, during the current crisis, there is no reason they cannot occur online. Using Zoom or similar online meeting platforms, each party and each attorney can be in a separate space, maintaining appropriate “social distance” while still being together to resolve their dispute. The health benefit of staying in place to stop or slow the spread of a global pandemic does not have to mean that we stop or slow the pace of resolving disputes.
Even when the crisis passes and in-person meetings become more frequent, using the Collaborative process would avoid any of the delays that seem inevitable once the courts are fully open for business. Collaborative would also allow all parties greater flexibility to manage their schedules and meet online to continue moving towards a resolution whatever the “new normal” turns out to be.
So, whether in the midst of COVID-19 or on the other side of “flattening the curve,” the Collaborative approach to dispute resolution could literally proceed as though the crisis had never occurred.
To learn more—and to find a list of Collaborative attorneys—please visit the North Carolina Civil Collaborative Law Association website.
For more than thirty years, Bartina Edwards has been an entrepreneur, a small business owner, and an advocate for employers and employees, alike. Bartina’s perspective is shaped by her unique background, which includes: ten years of experience in the banking industry; experience owning and managing a staffing and consulting agency; and experience practicing law with North Carolina’s most renowned civil rights advocates. All those experiences led her to becoming an integral member of the North Carolina Civil Collaborative Law Association. Bartina shares her personal and professional story as it relates to a journey that led her to envision a different way of resolving civil disputes. Here is Bartina’s story, in her words:
What do you like most about practicing law?
Empowering people with solutions that can change their lives; and experiencing the realization that these changes often have lasting influence and impact beyond the individual client.
Tell us a little about how you got to where you are today.
I'm not sure how I got to where I am today, but it has been a journey. I don't recall ever sitting down plotting it all out from my past to present, although I always feel like I have some form of plan A, plan B, and plan C. Ultimately, I would describe it as a guiding light. Simply put, I got here with a lot of passion, drive, ambition and tenacity, coupled with lots of learning experiences, strong family support, prayer, and good folks who went before me.
Why are you passionate about civil collaborative law?
Collaborative law supports my ongoing personal journey that started over 12 years ago to become more mindful in how I live, and it supports a lifestyle of my definition of balance. Because collaborative law is still in its infancy, I am learning and developing a method to fully embrace it as a way of practicing law. While it supports my vision of conciliatory dispute resolution among lawyers, I see it as a bigger opportunity for those who currently do not have access to justice. For those underserved by the current legal system, collaborative law offers a cost-effective opportunity for more clients to access a dispute resolution option without having to shoulder the burden of filing a lawsuit. It is innovative, forward-thinking, and next generational.
What is your favorite book and why?
Breaking the Habit of Being Yourself. The title is self-explanatory! It is a great book that encompasses the academic, the science, the medical, the biblical, and the mystical all in one. It explains our human behavior in a way that aligns with many theories, ultimately leading to a discussion about meditation. I found it an interesting read, and I have recommended it to many, who have said it has been life-changing for them.
What do you like to do in your free time?
Free time to me is having the freedom to do what I want when I want. It's on ongoing goal I strive toward. In terms of hobbies, I like snow skiing; reading for pleasure; and attending social, cultural and entertaining events.
Be sure to connect with Bartina or any other specially-trained collaborative law attorney if you would like to learn more about an emerging, efficient method specifically-tailored to help clients resolve civil disputes more efficiently.
An environmental thought-leader (read: here or here), an advocate for children’s rights (read: here), and a compassionate advocate for preserving North Carolina’s history thoughtfully and empathetically (read: here), that’s Bill Blancato. But, he’s also someone he believes strongly in the value and efficacy of resolving civil disputes collaboratively. So much so that he was a founding member of the North Carolina Civil Collaborative Law Association. We asked Bill some questions to better understand his private practice journey that led him to support collaborative law. Here are his answers, in his words:
What do you like most about practicing law?
I love the challenge of helping people solve a problem they haven’t been able to solve themselves; and doing so in a prompt and cost-effective way.
Tell us a little about how you got to where you are today.
I had built an interesting litigation practice when, in 2006, a client, a large regional general contractor, asked if I would be interested in becoming its general counsel. No more time sheets! I jumped on that ship, but the 2008 recession sank the ship (my own professional Titanic story). In early 2013, I found myself back in private practice with no clients. At this stage of my career, I would rather focus on helping people solve problems than fighting in court.
Why are you passionate about civil collaborative law?
I took superior court mediation training in 1992, when I had been practicing less than 10 years. It didn’t take long for me to realize that litigation is almost always a very time consuming and expensive way to resolve disputes. I knew there had to be a better way. Mediation is one of those better ways. Collaborative improves on mediation because it puts more control in the clients’ hands.
What is your favorite book and why?
In 2019, I read Ball Four by Jim Bouton, which I had never read before. I’m a big baseball fan and thought it was hilarious. But my all-time favorite is: “Rising Tide: The Great Mississippi Flood of 1927 and How It Changed America” by John Barry. This is a fascinating story about the hydrology and geology of the Mississippi River; the engineers who built bridges across it and opened the channel to shipping; the huge flood of 1927; the economies; especially New Orleans, that depend on the river; and Herbert Hoover’s rise to prominence as he managed the aftermath of the flood.
What do you like to do in your free time?
Cycling, hiking, tennis, bowling, cooking, gardening (but the deer are making this very difficult), winning money from my friends at our monthly poker game, spending time with my wife and daughters, and volunteering as a Regional Coordinator for Citizens’ Climate Lobby which is working to build the will in Congress to address climate change.
Do you want to know more about the civil collaborative law process? Connect with a civil collaborative lawyer here.
How do you build a successful law practice in a community where everyone may know everyone's name? In a place where six degrees of separation never exist (because everyone likely is more closely connected)? Answer: relationships. What happens when you realize the traditional method for resolving civil litigation disputes results in (even if unintended) destroying what had otherwise been a strong, tenured relationship? Is there another way for resolving disputes consistent with the relational focus that historically helps one build a law practice in a relational community. Jeffrey Batts is one of the attorneys who founded another way of civil dispute resolution. It's called collaborative law. And he's here to share his story as it relates to his law practice and his ever-shifting focus on developing a collaborative law practice for himself and for other attorneys around North Carolina. Here's Jeffrey's story in his words:
I have litigated cases for more than thirty years, and for the most part, have focused on disputes involving estates and closely-held businesses (i.e., family businesses). A few years ago, I stumbled upon an item in a Bar Association email about the development of civil collaborative law practice. I noticed the point person was John Sarratt, a mentor to me early in my legal career when we both practiced in Greensboro. John now lives and practices law in the Raleigh area.
I called John to learn about collaborative law. Attorneys engaged in small business or estate disputes frequently see disagreements between close friends or family members. Historically, the closeness of these relationships makes the disputes particularly difficult to resolve. The legal dispute often masks other underlying issues such as hurt feelings and distrust. As a general rule, the legal system is not designed to adjudicate "hurt feelings or distrust" unless there is some nuanced actionable wrong. While a breach of trust may offend the conscience, that does not always means it offends the law or that there is an efficient remedy to right that wrong through the legal system.
Nevertheless, it is within this context that communication ceases or becomes counterproductive between the parties. At the end of the day, when litigation has run its course, the business or family is damaged, and tenured relationships are broken. Mediation can be an effective means of alternative dispute resolution designed to reduce expense and resolve pending litigation efficiently and economically. However, most attorneys would agree that somewhere along the way, mediation as a stand-alone alternative dispute resolution process promoting efficiency got off its metaphorical tracks. Today, many attorneys would argue mediation doesn’t deal with underlying issues, so the “collateral damage” remains. During the mediation process, attorneys perform as they are trained to do, but the panoply of client outcomes (both legal and non-legal) is not wholly-addressed through a traditional mediation process.
My call to John has led to engagement with dozens of attorneys throughout the state who share a passion for dispute resolution focused on producing better solutions for our clients. The collaborative process is client-centered, emphasizing the underlying needs and interests of the parties, and utilizing face-to-face meetings between the parties and their trained collaborative counsel. In a series of one or two hour sessions over a few months, the participants (read: "clients") talk through their issues and explore solutions, often creative solutions, historically unavailable via the judicial process. The collaborative process is private, faster, and less expensive for clients. Typically, the collaborative process differs from traditional methods of dispute resolution because it offers the parties opportunities to resolve underlying core issues and preserve relationships. Working through my first collaborative case, the process has proven its value, which I will share in greater detail when the matter concludes. I can tell you at this point that I find joy in working with colleagues and friends of a common mindset, and that working together to help our clients’ understanding of issues and brainstorming solutions is an enriching experience, for attorneys and parties. For a relational person in a highly-relational market (Rocky Mount, NC), I believe collaborative law offers hope as a way to resolve disputes without destroying relationships. Please contact me (or any of the attorneys listed on this site) if you would like to know more about the process.
