On Aug. 26, Mississippi will become the 24th state to enact Rules for Collaborative Law that allow parties to resolve family law disputes without adversarial court proceedings in chancery court.
The state supreme court adopted the rules July 26, according to a press release from the Administrative Office of Courts. It applies to cases such as divorce, child custody, property distribution, adoption, parentage, premarital and post-marital agreements, among others.
But how does this system work? And how does it differ from how things are already done?
How does collaborative law work?
Stuart Webb, a family lawyer in Minneapolis, is credited with originating the idea in 1990, with the goal of removing the adversarial nature common to family law proceedings.
Parties sign a Collaborative Law Participation Agreement, in which they agree to negotiate without threatening litigation.
“By taking away the threat of litigation, it’s supposed to create a totally different resolution environment where people aren’t operating out of fear,” said Mark Chinn, a Jackson-based attorney who chaired an ad hoc committee formed in 2020 to study how collaborative law works in other states. “Each party and the lawyers are working toward a solution that becomes, for lack of a better term, a ‘win-win’ so that everybody can move forward.”
This method can be particularly effective with custody issues, Chinn said, when parties look for a resolution that meets everyone’s needs rather than saying, “Either I get it my way, or I’m going to take you to court.”
With a CLPA, each party hires a lawyer, and everyone agrees on experts needed to help settle matters.
Chinn used the example of two divorcing parties trying to determine the value of a home. Rather than each party hiring a separate appraiser and fighting over different home values, in collaborative negotiations they would agree on a single appraiser and accept the resulting number.
If either party threatens litigation or backs out of negotiations, the parties must find new lawyers, and new experts, to represent them. Those hired for a CLPA cannot participate in court action on the case.
“The lawyers and the parties all know going in that if it breaks down and goes to court, the investment in the lawyers is lost,” Chinn said. “… That threat is the glue that holds everybody together in the discussions.”
There is no time limit for collaborative negotiations to finish, Chinn said. It’s a simple matter of both parties remaining engaged.
Once CLPA negotiations are complete, a joint filing is made in chancery court. The agreement is ultimately entered as a court order.
What is the benefit of collaborative law?
In short, it’s cheaper.
Chinn estimates a successful CLPA costs half as much as adversarial litigation – even with cases resolved through settlement or mediation.
Even in divorce and custody cases that settle before trial, negotiations occur under threat of litigation. There are depositions, phone and credit card record subpoenas, efforts to dig up evidence of fault – in some cases, even hiring private detectives.
Chinn likened it to a photo he once saw in a presentation in which two attorneys were shaking hands while each held a baseball bat behind their back.
“Things do get resolved that way. We do it every day,” he said. “… But oftentimes we go through a lot of litigation procedures, which are expensive and somewhat damaging to people’s lives.”
In just the nuts and bolts of litigation, there’s complaint and response filing, as well as other common procedures, that run up lawyer bills.
“When you get into the collaborative process, all of that is supposed to disappear,” Chinn said.
Will it work in Mississippi?
Chinn wasn’t so bold as to guarantee it, but he’s optimistic.
For one, the idea has spread to nearly half the country, as well as internationally in less than 35 years.
“It’s amazing the rise of this concept … as a way of settling family law cases,” Chinn said.
Anecdotally, he is aware of large firms in cities like Orlando, Florida, and Dallas, Texas, that only take collaborative law cases.
“They don’t want to litigate,” Chinn said. “And I’ll tell you this, there are a lot of lawyers in Mississippi who, if they could, would handle divorce cases without litigation. (Some) are turning away cases, saying ‘I don’t do litigation. I only solve matters through settlement.’”
For the process to become widely used here, the culture around family disputes must change among lawyers and clients. That includes public awareness that collaborative law is an option and continued education for attorneys on how it works.
“Once people hear about this, they’re going to be saying, ‘Hey, I want a collaborative law approach,’” he said.
Zack Plair is the managing editor for The Dispatch.
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