Bill Text: MI SB0714 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Civil procedure; alternate dispute resolution; uniform collaborative law act; enact. Creates new act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-06-12 - Assigned Pa 0159'14 With Immediate Effect [SB0714 Detail]
Download: Michigan-2013-SB0714-Engrossed.html
SB-0714, As Passed House, May 22, 2014
SUBSTITUTE FOR
SENATE BILL NO. 714
A bill to adopt the uniform collaborative law act; to allow
parties to agree to a collaborative alternative dispute resolution
process as an alternative to litigation; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"uniform collaborative law act".
Sec 2. As used in this act:
(a) "Collaborative law communication" means a statement,
whether oral or in a record, or verbal or nonverbal, to which both
of the following apply:
(i) The statement is made to conduct, participate in, continue,
or reconvene a collaborative law process.
(ii) The statement occurs after the parties sign a
collaborative law participation agreement and before the
collaborative law process is concluded.
(b) "Collaborative law participation agreement" means an
agreement by persons to participate in a collaborative law process.
(c) "Collaborative law process" means a procedure intended to
resolve a collaborative matter without intervention by a tribunal
in which persons sign a collaborative law participation agreement
and are represented by collaborative lawyers.
(d) "Collaborative lawyer" means a lawyer who represents a
party in a collaborative law process.
(e) "Collaborative matter" means a dispute, transaction,
claim, problem, or issue for resolution, including a dispute,
claim, or issue in a proceeding, that is described in a
collaborative law participation agreement and arises under the
family or domestic relations law of this state, including any of
the following:
(i) Marriage, divorce, dissolution, annulment, and property
distribution.
(ii) Child custody, visitation, and parenting time.
(iii) Alimony, maintenance, and child support.
(iv) Adoption.
(v) Parentage.
(vi) Premarital, marital, and postmarital agreements.
(f) "Law firm" means both of the following:
(i) Lawyers who practice law together in a partnership,
professional corporation, sole proprietorship, limited liability
company, or association.
(ii) Lawyers employed in a legal services organization, or the
legal department of a corporation or other organization, or the
legal department of a government or governmental subdivision,
agency, or instrumentality.
(g) "Nonparty participant" means a person, other than a party
and the party's collaborative lawyer, that participates in a
collaborative law process.
(h) "Party" means a person that signs a collaborative law
participation agreement and whose consent is necessary to resolve a
collaborative matter.
(i) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(j) "Proceeding" means any of the following:
(i) A judicial, administrative, arbitral, or other adjudicative
process before a tribunal, including related prehearing and
posthearing motions, conferences, and discovery.
(ii) A legislative hearing or similar process.
(k) "Prospective party" means a person that discusses with a
prospective collaborative lawyer the possibility of signing a
collaborative law participation agreement.
(l) "Record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(m) "Related to a collaborative matter" means involving the
same parties, transaction or occurrence, nucleus of operative fact,
dispute, claim, or issue as the collaborative matter.
(n) "Sign" means, with present intent to authenticate or adopt
a record, either of the following:
(i) To execute or adopt a tangible symbol.
(ii) To attach to or logically associate with the record an
electronic symbol, sound, or process.
(o) "Tribunal" means any of the following:
(i) A court, arbitrator, administrative agency, or other body
acting in an adjudicative capacity that, after presentation of
evidence or legal argument, has jurisdiction to render a decision
affecting a party's interests in a matter.
(ii) A legislative body conducting a hearing or similar
process.
Sec. 3. This act applies to a collaborative law participation
agreement that meets the requirements of section 4 signed on or
after the effective date of this act.
Sec. 4. (1) A collaborative law participation agreement must
satisfy all of the following requirements:
(a) Be in a record.
(b) Be signed by the parties.
(c) State the parties' intention to resolve a collaborative
matter through a collaborative law process under this act.
(d) Describe the nature and scope of the matter.
(e) Identify the collaborative lawyer who represents each
party in the process.
(f) Contain a statement by each collaborative lawyer
confirming the lawyer's representation of a party in the
collaborative law process.
(2) Parties may agree to include in a collaborative law
participation agreement additional provisions not inconsistent with
this act.
Sec. 5. (1) A collaborative law process begins when the
parties sign a collaborative law participation agreement.
(2) A tribunal may not order a party to participate in a
collaborative law process over that party's objection.
(3) A collaborative law process is concluded by 1 of the
following:
(a) Resolution of a collaborative matter as evidenced by a
signed record.
(b) Resolution of a part of the collaborative matter,
evidenced by a signed record, in which the parties agree that the
remaining parts of the matter will not be resolved in the process.
(c) Termination of the process.
(4) A collaborative law process terminates when any of the
following occur:
(a) A party gives notice to other parties in a record that the
process is ended.
(b) A party does any of the following:
(i) Begins a proceeding related to a collaborative matter
without the agreement of all parties.
(ii) In a pending proceeding related to the matter, does any of
the following:
(A) Initiates a pleading, motion, order to show cause, or
request for a conference with the tribunal.
(B) Requests that the proceeding be put on the tribunal's
active calendar.
(C) Takes similar action requiring notice to be sent to the
parties.
(c) Except as otherwise provided by subsection (7), a party
discharges a collaborative lawyer or a collaborative lawyer
withdraws from further representation of a party.
(5) A party's collaborative lawyer shall give prompt notice to
all other parties in a record of a discharge or withdrawal.
(6) A party may terminate a collaborative law process with or
without cause.
(7) Notwithstanding the discharge or withdrawal of a
collaborative lawyer, a collaborative law process continues if, not
later than 30 days after the date that the notice of the discharge
or withdrawal of a collaborative lawyer required by subsection (5)
is sent to the parties, both of the following occur:
(a) The unrepresented party engages a successor collaborative
lawyer.
(b) A record is signed that satisfies all of the following
requirements:
(i) The parties consent in the record to continue the process
by reaffirming the collaborative law participation agreement.
(ii) The agreement is amended in the record to identify the
successor collaborative lawyer.
(iii) The successor collaborative lawyer confirms in the record
the lawyer's representation of a party in the collaborative
process.
(8) A collaborative law process does not conclude if, with the
consent of the parties, a party requests a tribunal to approve a
resolution of the collaborative matter or any part of the matter as
evidenced by a signed record.
(9) A collaborative law participation agreement may provide
additional methods of concluding a collaborative law process.
Sec. 6. (1) Persons in a proceeding pending before a tribunal
may sign a collaborative law participation agreement to seek to
resolve a collaborative matter related to the proceeding. The
parties shall file promptly with the tribunal a notice of the
agreement after it is signed. Subject to subsection (3) and
sections 7 and 8, the filing operates as an application for a stay
of the proceeding.
(2) The parties shall file promptly with the tribunal notice
in a record when a collaborative law process concludes. The stay of
the proceeding under subsection (1) is lifted when the notice is
filed. The notice may not specify any reason for termination of the
process.
(3) A tribunal in which a proceeding is stayed under
subsection (1) may require the parties and collaborative lawyers to
provide a status report on the collaborative law process and the
proceeding. A status report may include only information on whether
the process is ongoing or concluded. It may not include a report,
assessment, evaluation, recommendation, finding, or other
communication regarding a collaborative law process or
collaborative law matter.
(4) A tribunal may not consider a communication made in
Senate Bill No. 714 (S-1) as amended May 20, 2014
violation of subsection (3).
(5) A tribunal shall provide parties notice and an opportunity
to be heard before dismissing a proceeding in which a notice of
collaborative process is filed based on delay or failure to
prosecute.
Sec. 7. During a collaborative law process, a tribunal may
issue emergency orders to protect the health, safety, welfare, or
interest of a party as provided in section 2950 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.2950.
Sec. 8. A tribunal may approve an agreement resulting from a
collaborative law process.
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Sec. 9. (1) Except as otherwise provided in subsection (3), a
collaborative lawyer is disqualified from appearing before a
tribunal to represent a party in a proceeding related to the
collaborative matter.
(2) Except as otherwise provided in subsection (3) and
sections 10 and 11, a lawyer in a law firm with which the
collaborative lawyer is associated is disqualified from appearing
before a tribunal to represent a party in a proceeding related to
the collaborative matter if the collaborative lawyer is
disqualified from doing so under subsection (1).
(3) A collaborative lawyer or a lawyer in a law firm with
which the collaborative lawyer is associated may represent a party
to do either of the following:
(a) Ask a tribunal to approve an agreement resulting from the
collaborative law process.
(b) Seek or defend an emergency order to protect the health,
safety, welfare, or interest of a party if a successor lawyer is
not immediately available to represent that person.
(4) If subsection (3)(b) applies, a collaborative lawyer, or
lawyer in a law firm with which the collaborative lawyer is
associated, may represent a party only until the person is
represented by a successor lawyer or reasonable measures are taken
to protect the health, safety, welfare, or interest of the person.
Sec. 10. (1) The disqualification of section 9(1) applies to a
collaborative lawyer representing a party with or without fee.
(2) After a collaborative law process concludes, another
lawyer in a law firm with which a collaborative lawyer disqualified
under section 9(1) is associated may represent a party without fee
in the collaborative matter or a matter related to the
collaborative matter if all of the following apply:
(a) The party has an annual income that qualifies the party
for free legal representation under the criteria established by the
law firm for free legal representation.
(b) The collaborative law participation agreement so provides.
(c) The collaborative lawyer is isolated from any
participation in the collaborative matter or a matter related to
the collaborative matter through procedures within the law firm
that are reasonably calculated to isolate the collaborative lawyer
from the participation.
Sec. 11. (1) The disqualification of section 9(1) applies to a
collaborative lawyer representing a party that is a government or
governmental subdivision, agency, or instrumentality.
(2) After a collaborative law process concludes, another
lawyer in a law firm with which the collaborative lawyer is
associated may represent a government or governmental subdivision,
agency, or instrumentality in the collaborative matter or a matter
related to the collaborative matter if both of the following apply:
(a) The collaborative law participation agreement so provides.
(b) The collaborative lawyer is isolated from any
participation in the collaborative matter or a matter related to
the collaborative matter through procedures within the law firm
that are reasonably calculated to isolate the collaborative lawyer
from the participation.
Sec. 12. Except as provided by law other than this act, during
the collaborative law process, on the request of another party, a
party shall make timely, full, candid, and informal disclosure of
information related to the collaborative matter without formal
discovery. A party also shall update promptly previously disclosed
information that has materially changed. The parties may define the
scope of disclosure during the collaborative law process.
Sec. 13. This act does not affect either of the following:
(a) The professional responsibility obligations and standards
applicable to a lawyer or other licensed professional.
(b) The obligation of a person to report abuse or neglect,
abandonment, or exploitation of a child or adult under the law of
this state.
Sec. 14. Before a prospective party signs a collaborative law
participation agreement, a prospective collaborative lawyer shall
do all of the following:
(a) Assess with the prospective party factors the lawyer
reasonably believes relate to whether a collaborative law process
is appropriate for the prospective party's matter.
(b) Provide the prospective party with information that the
lawyer reasonably believes is sufficient for the party to make an
informed decision about the material benefits and risks of a
collaborative law process as compared to the material benefits and
risks of other reasonably available alternatives for resolving the
proposed collaborative matter, such as litigation, mediation,
arbitration, or expert evaluation.
(c) Advise the prospective party of all of the following:
(i) That after signing an agreement if a party initiates a
proceeding or seeks tribunal intervention in a pending proceeding
related to the collaborative matter, the collaborative law process
terminates.
(ii) That participation in a collaborative law process is
voluntary and any party has the right to terminate unilaterally a
collaborative law process with or without cause.
(iii) That the collaborative lawyer and any lawyer in a law firm
with which the collaborative lawyer is associated may not appear
before a tribunal to represent a party in a proceeding related to
the collaborative matter, except as authorized by section 9(3),
10(2), or 11(2).
Sec. 15. (1) Before a prospective party signs a collaborative
law participation agreement, a prospective collaborative lawyer
shall make reasonable inquiry whether the prospective party has a
history of a coercive or violent relationship with another
prospective party. A reasonable inquiry includes the use of the
domestic violence screening protocol for mediation provided by the
state court administrative office.
(2) Throughout a collaborative law process, a collaborative
lawyer reasonably and continuously shall assess whether the party
the collaborative lawyer represents has a history of a coercive or
violent relationship with another party.
(3) If a collaborative lawyer reasonably believes that the
party the lawyer represents or the prospective party who consults
the lawyer has a history of a coercive or violent relationship with
another party or prospective party, the lawyer may not begin or
continue a collaborative law process unless both of the following
apply:
(a) The party or the prospective party requests beginning or
continuing a process.
(b) The collaborative lawyer reasonably believes that the
safety of the party or prospective party can be protected
adequately during a process.
Sec. 16. A collaborative law communication is confidential to
the extent agreed by the parties in a signed record or as provided
by law of this state other than this act.
Sec. 17. (1) Subject to sections 18 and 19, a collaborative
law communication is privileged under subsection (2), is not
subject to discovery, and is not admissible in evidence.
(2) In a proceeding, the following privileges apply:
(a) A party may refuse to disclose, and may prevent any other
person from disclosing, a collaborative law communication.
(b) A nonparty participant may refuse to disclose, and may
prevent any other person from disclosing, a collaborative law
communication of the nonparty participant.
(3) Evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected from
discovery solely because of its disclosure or use in a
collaborative law process.
Sec. 18. (1) A privilege under section 17 may be waived in a
record or orally during a proceeding if it is expressly waived by
all parties and, in the case of the privilege of a nonparty
participant, it is also expressly waived by the nonparty
participant.
(2) A person that makes a disclosure or representation about a
collaborative law communication that prejudices another person in a
proceeding may not assert a privilege under section 17, but this
preclusion applies only to the extent necessary for the person
prejudiced to respond to the disclosure or representation.
Sec. 19. (1) There is no privilege under section 17 for a
collaborative law communication that is any of the following:
(a) Available to the public under the freedom of information
act, 1976 PA 442, MCL 15.231 to 15.246, or made during a session of
a collaborative law process that is open, or is required by law to
be open, to the public.
(b) A threat or statement of a plan to inflict bodily injury
or commit a crime of violence.
(c) Intentionally used to plan a crime, commit or attempt to
commit a crime, or conceal an ongoing crime or ongoing criminal
activity.
(d) In an agreement resulting from the collaborative law
process, evidenced by a record signed by all parties to the
agreement.
(2) The privileges under section 17 for a collaborative law
communication do not apply to the extent that a communication is
either of the following:
(a) Sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice arising from or
related to a collaborative law process.
(b) Sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation of a child or adult, unless the
department of human services is a party to or otherwise
participates in the process.
(3) There is no privilege under section 17 if a tribunal
finds, after a hearing in camera, that the party seeking discovery
or the proponent of the evidence has shown the evidence is not
otherwise available, the need for the evidence substantially
outweighs the interest in protecting confidentiality, and the
collaborative law communication is sought or offered in any of the
following:
(a) A court proceeding involving a felony or misdemeanor.
(b) A proceeding seeking rescission or reformation of a
contract arising out of the collaborative law process or in which a
defense to avoid liability on the contract is asserted.
(4) If a collaborative law communication is subject to an
exception under subsection (2) or (3), only the part of the
communication necessary for the application of the exception may be
disclosed or admitted.
(5) Disclosure or admission of evidence excepted from the
privilege under subsection (2) or (3) does not make the evidence or
any other collaborative law communication discoverable or
admissible for any other purpose.
(6) The privileges under section 17 do not apply if the
parties agree in advance in a signed record, or if a record of a
proceeding reflects agreement by the parties, that all or part of a
collaborative law process is not privileged. This subsection does
not apply to a collaborative law communication made by a person that
did not receive actual notice of the agreement before the
communication was made.
Sec. 20. (1) If an agreement fails to meet the requirements of
section 4, or a lawyer fails to comply with section 14 or 15, a
tribunal may nonetheless find that the parties intended to enter
into a collaborative law participation agreement if both of the
following apply:
(a) The parties signed a record indicating an intention to
enter into a collaborative law participation agreement.
(b) The parties reasonably believed they were participating in
a collaborative law process.
(2) If a tribunal makes the findings specified in subsection
(1), and the interests of justice require, the tribunal may do all
of the following:
(a) Enforce an agreement evidenced by a record resulting from
the process in which the parties participated.
(b) Apply the disqualification provisions of sections 5, 6, 9,
10, and 11.
(c) Apply a privilege under section 17.
Sec. 21. In applying and construing this uniform act,
consideration must be given to the need to promote uniformity of
the law with respect to its subject matter among states that enact
it.
Sec. 22. This act modifies, limits, and supersedes the federal
electronic signatures in global and national commerce act, 15 USC
7001 to 7031, but does not modify, limit, or supersede section
101(c) of that act, 15 USC 7001(c), or authorize electronic
delivery of any of the notices described in section 103(b) of that
act, 15 USC 7003(b).
Sec. 24. This act takes effect 180 days after it is enacted
into law.
