With no definite end in sight, the Colorado legislature’s recess has made the future uncertain for all but strictly necessary bills that remain unpassed. One bill in limbo is House Bill 1291, which would direct the state to adopt the Uniform Collaborative Law Act. Collaborative law is a form of dispute resolution intended to be less adversarial than going to court.
Collaborative law tends to be used most often in family law, but Rep. Kerry Tipper, the bill’s prime sponsor in the House, said its usefulness goes beyond family law. It’s suited for other situations in which the parties have to maintain a relationship, such as in business, Tipper said.
“There are lots of situations that we can think of that past the litigation, [people] can still have an ongoing relationship and ongoing responsibilities to each other or certainly other parties,” Tipper said. “I think most people in the legislature are pretty keen on anything that reduces litigation, and this is one of those that gives an alternative to folks.”
The bill passed the House and made it to the Senate before the legislature adjourned in mid-March. Tipper told Law Week the bill’s fate once the legislature eventually resumes work is uncertain.
“I don’t know what’s going to happen with the bill, given the situation that we’re in,” Tipper said. “We don’t know when we’re going to come back [or] how long we’ll come back for.” But she believes the bill has as much of an advantage as it can, given the circumstances, because it doesn’t require a state appropriation and the topic hasn’t been controversial.
The legislature has priority bills it must pass during the regular session, like the yearly budget bill. Beyond that, Tipper said she believes bills with fiscal notes that haven’t been passed will be next to impossible to pass, even if the legislative session is extended to make up its missed days. The current forecast from legislative economists estimates Colorado could see a $750 million decrease in projected revenue in the next fiscal year, which starts July 1. Besides the Long Bill, which under normal circumstances gets introduced in March, Tipper said she believes the legislature will prioritize school financing and economic stimulus options to fight the downturn caused by the novel coronavirus.
Using collaborative law doesn’t require a state to have adopted a version of the Uniform Collaborative Law Act. Terri Harrington, a founding partner of Harrington Brewster Mahoney & Smits, said various bar associations and the American Bar Association have written opinions saying the process is ethical. But, she said, adopting the statute offers a few benefits for the collaborative law process.
“Number one, a lot of people don’t know what it is, even judges and attorneys, so it’s really helpful to have the process outlined,” Harrington said. She said the law also codifies the confidentiality of the collaborative law process.
During a March 3 House Judiciary Committee hearing for House Bill 1291, Republican Rep. Hugh McKean said he wished he had known about the collaborative law process when he went through a divorce.
According to House Bill 1291, parties must sign an agreement to resolve their dispute in the collaborative process. By participating, they don’t waive their rights to file a court case later if they choose, but the lawyers representing them in the collaborative law process can’t represent them in court. The law also says communications during the process are confidential and can’t be used in later proceedings.
In 2019, Colorado adopted a similar process for resolving health care incidents outside the court system, called the Candor Act. The law allows patients to initiate the process and keeps communications between them and health care providers confidential so they can’t be introduced as evidence later if a court case is filed.
Tipper and Harrington said they don’t believe adopting the Uniform Collaborative Law Act would affect the process created by the Candor Act.
Tipper has sat on the Colorado Commission on Uniform State Laws since 2019, a joint year-round committee. Harrington was part of a task force appointed by the Colorado Bar Association to work on getting the Uniform Collaborative Law Act passed in Colorado, but she said she believes the task force not having many family law lawyers on it was a reason the CBA didn’t previously prioritize passing the law.
“The family law section of the bar now is very supportive of the act and voted unanimously to support [it] in 2019,” Harrington said.
Harrington said she hopes adopting the law will spur increased use of collaborative law in Colorado. “Lawyers are supposed to be peacemakers, and when courtroom battles got to be on television, all of a sudden, clients expected their lawyer to be a big bully and beat the other side up,” she said. In family law cases, that is the most destructive way an attorney can act, and I would really like to see more attorneys being aware of that.”