Proposed legislation would create rules for collaborative law

Collaborative law is catching on in South Carolina beyond a concept of legal method and into a practice specialty. The South Carolina Academy of Collaborative Professionals is currently drafting legislation that would establish rules and limitations for collaborative law. 

Collaborative law is not recognized as a legal specialty in South Carolina. Previously, the practice has been addressed in ethics advisory opinions.

Collaborative law is organized conflict resolution, and practitioners are trained through the International Academy of Collaborative Professionals. It provides another option for dispute resolution that keeps cases out of the public record and includes participation with lawyers, financial advisors, parenting professionals, and mental health professionals.

The proposed legislation would establish rules and qualifications for the practice of collaborative law in South Carolina. Although similar legislation has been introduced in other states, attorney Bart Bartlett of Columbia, president of the SCACP, said the legislation is very specific to South Carolina.

“Right now in South Carolina, while we have ethics opinions that say the collaborative process is ethical, there are no restrictions out there that keep any attorney from saying they’re practicing collaborative law, because there’s no structure there to say that they can’t,” Bartlett said. “It’s not known as a specialty, so the international group has been working across the country in having local legislation passed.”

North Carolina’s House of Representatives has twice passed a Uniform Collaborative Law Act, most recently in March 2019, but both times the bill died before coming up for a vote in the state’s Senate.

Some legislators have raised concerns about one unique feature of collaborative law: if the parties are unable to resolve the case through the collaborative process, the attorneys involved are then barred from representing their clients in future litigation.

“So that way, the parties and the attorneys know that no one is positioning for litigation down the road and that those attorneys are 100 percent committed to getting this thing resolved,” Bartlett said. “They’re not fishing for information. And that is what truly sets collaborative law apart, even from mediation. That is huge.”

Collaborative law attorney Shannon Burnett of Blythewood, incumbent president of the SCACP, has been writing the bill for several years. She said regulating the profession of collaborative law will safeguard the participants and prevent people without proper training from practicing it. Collaborative law professionals are trained across the involved disciplines.

Burnett has gotten help from collaborative law professionals throughout the world in writing the legislation. She described the bill as “very thorough.”

Debbie Martinez, a Charleston certified collaborative law divorce and relationship coach, said a state statute would give the process legitimacy.

“I think it really has to be outlined,” Martinez said. “When we did our bylaws for South Carolina, and I worked on them with that, we really stressed to the people that do our training, we are trying to make this consistent statewide. The bylaws are consistent. The forms are consistent. The protocol, the procedure, everything needs to stay consistent. And the people who take a collaborative case absolutely have to be 100 percent collaboratively trained.”

Burnett plans to introduce the collaborative law bill in the next legislative session so that she has time to educate legislators on collaborative law and the need to regulate it. She is currently working on education programs for the South Carolina Bar Association’s Alternative Dispute Resolution section.

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