The Uniform Collaborative Law Act: Behind and beyond ABA approval

Abstract

In 2011 the American Bar Association's (ABA) House of Delegates (HOD) voted against endorsing the Uniform Collaborative Law Act (UCLA) drafted by the National Conference of Commissioners on Uniform State Law (NCCUSL). In 2024 the ABA HOD reversed position and endorsed the UCLA. This article explores why and how the change came about and its implications for the future of collaborative law. Collaborative Law is a dispute resolution process in which lawyers represent clients for a limited purpose—to negotiate settlement of a dispute. Parties and their counsel sign a participation agreement which requires counsel to disqualify him or herself from representation in litigation if the collaborative law process terminates short of settlement. The purpose of the disqualification provision is to focus the parties and counsel on formulating solutions to problems rather than threatening adversarial proceedings to resolve negotiation impasse. Collaborative law was first developed and is most used in divorce and custody disputes where problem solving negotiations are particularly important to the welfare of parents and children. In 2011, when NCCUSL first presented the UCLA to the ABA's HOD for endorsement, opponents (mostly litigators) characterized collaborative law as “unethical” because it created an alleged conflict of interest between lawyer and client. Opponents also characterized the UCLA as a threat to the independence of the legal profession as it was regulation by legislation rather than court rule. In 2024, the ABA HOD reversed its 2011 decision and endorsed the UCLA. By then over a majority of the states adapted the UCLA despite the ABA's 2011 disapproval. State enactments reflected greater public and lawyer acceptance of ADR in divorce and custody disputes. Another essential factor in the ABA ‘s change of heart was dedicated advocacy within the organization by committed members of the Section on Dispute Resolution. This article makes recommendations for the future integration of collaborative law into the mainstream of dispute resolution including more state enactments for the UCLA, expansion of collaborative law to fields in addition to family law and integration into legal education.