Oftentimes, professionals describe Collaborative Divorce as a process that is both confidential and transparent. Without more, these concepts can appear to be contradictory. How can these contradictory concepts exist side-by-side in the same dispute resolution process?
The Collaborative Divorce process is designed to be transparent in the sense that all information that may be important to resolving the dispute must be disclosed. Usually, this transparency is achieved through various tools. A requirement to disclose information is usually contained in the Participation Agreement, the contract that lists out the legal pieces that become the Collaborative Divorce process. There may be additional documents that are signed, sometimes under penalty of perjury, to ensure that there has been complete disclosure. I make it my practice to include sworn statements in final documents that everything that needed to be disclosed has been.
The transparency extends to the flow of information among the participants. For the Collaborative Divorce process to be effective, information needs to flow. Factual and educational information needs to flow to everyone; process information needs to flow between the professionals and then to the participants.
Neutral professionals are generally prohibited from holding onto confidences from other participants. Information that the neutral professional team members (such as the financial specialist, child specialist, and neutral coach in a one-coach model) receive is routinely and systematically disclosed. Similarly, there is a flow of information to and from non-neutral team members (attorneys and coaches in a two-coach model) if relevant. More on this below.
Transparency provides safety within the process, by helping to ensure that important information is known to all involved. By sharing information, everyone can participate in creating options and arriving at agreements. Without adequate information, it is not possible to take everything into account what may be important. Agreements made with inadequate information therefore tend to be shallower and less durable, if not a source of renewed conflict when the inadequacy of the information is discovered. The requirement for transparency in the Participation Agreement therefore not only helps to create safety for all participants, but also enhances the likelihood that the agreements reached will be durable.
Confidentiality likewise enhances safety. The confidentiality of the Collaborative Divorce process extends to the process as against the outside world. All the information exchanged in the process is to remain within the process. While the parties and their professional team are expected to be transparent among themselves, all are similarly expected to to maintain the privacy and confidentiality of the information against outsiders.
How is this confidentiality maintained?
There may be testimonial privilege (technically a different concept from confidentiality), that would prohibit testimony being elicited from those professionals who have a privilege. Privilege is usually created by statute. The professionals who have a testimonial privilege (generally the attorneys and mental health professionals in a Collaborative Divorce), cannot be compelled to disclose privileged information. However, privileges are narrowly construed and there are many exceptions to testimonial privilege that could impact a collaborative case.
In legal-speak, confidentiality is not the same as privilege. Confidentiality comes from several sources, including ethics rules, contracts (such as the Collaborative Divorce Participation Agreement), the rules of evidence prohibiting testimony concerning settlement discussions, regulations, and other sources. The Uniform Collaborative Law Act (not yet adopted) will provide additional protections of confidentiality. All of these sources are legally defined and have their limits.
In a Collaborative Divorce, the Participation Agreement normally contains provisions that address the confidentiality of the Collaborative Divorce process. Ethics and other rules that are applicable to the professionals (and HIPAA rules for the mental health professionals) enhance the confidentiality that is contracted in the Participation Agreement.
The purpose of Collaborative Divorce is to reach a good and durable settlement, and all the efforts of the team members are in working towards that settlement. While there are exceptions to the Rule of Evidence concerning settlement discussions, the triad of statutory testimonial privilege, the rule of evidence restricting settlement discussions, and contractual-ethical requirements provide significant protection of the confidentiality of the Collaborative law process.
How does the transparency requirement impact the non-neutral professionals? Must the lawyers and non-neutral coaches disclose information provided by a client in confidence during the Collaborative process? The general rule for lawyers, set out in RPC 1.6, is that lawyers are not allowed to reveal information unless expressly authorized by the client (with informed consent) or impliedly authorized because it is needed to carry out the representation. Given the contractual requirement in the Participation Agreement for transparency of information (signed by the lawyers), and the education that clients receive from their lawyers, perhaps also in the lawyers' retainer agreement, in many cases information would be expected to be routinely shared where appropriate.
Even in a Collaborative Divorce, clients are not precluded from instructing their attorneys to maintain the confidence of information. Such an instruction does create an ethical question for the lawyer. Attorneys are ethics-bound to maintain the confidence of that information when instructed. The issue arises out of the requirement in the Participation Agreement (and possibly the retainer agreement) to disclose information that the client is now asking to be withheld.
With the undertaking of transparency in the Participation Agreement, when a client gives such an instruction, the lawyer will need to engage in a conversation with the client about the obligations under the Participation Agreement and the impact on the Collaborative Divorce proceedings. For information that may be material, there would normally be two possible answers. Either (a) the confidence is maintained and the Collaborative Divorce ends, or (b) the confidence is disclosed in a sensitive and appropriate manner and the process continues. At all times, the decision lies with the client.
In some ways, the transparency requirement in Collaborative Divorce is little more than an extension of the Washington law that spouses owe a fiduciary duty towards each other until the divorce is final. (This is not the rule in every state.) Hence, the Collaborative Law transparency requirement helps assure that there is integrity in the process both from a conflict resolution and from a legal standpoint.