RULE 8.10. COLLABORATIVE LAW
1 (a) Purpose.
2 Collaborative law is a process in which parties and their respective
3 collaborative lawyers and other professionals contract in writing to resolve
4 disputes without seeking court action other than approval of a stipulated
5 settlement. The process requires collaborative lawyers and other nonparty
6 participants to be discharged if the collaborative law process terminates. The
7 process may include the use of alternative dispute resolution neutrals as defined in
8 N.D.R.Ct. 8.9, depending on the circumstances of the particular case.
9 (b) Definitions.
10 (1) "Collaborative law communication" means a statement, whether oral or
11 in a record, or verbal or nonverbal, that:
12 (A) is made to conduct, participate in, continue, or reconvene a
13 collaborative law process; and
14 (B) occurs after the parties sign a collaborative law participation agreement
15 and before the collaborative law process is concluded.
16 (2) "Nonparty participant" means a person, other than a party and the
17 party's collaborative lawyer, that participates in a collaborative law process.
18 (3) "Proceeding" means:
19 (A) a judicial, administrative, arbitral, or other adjudicative process before a
20 tribunal, including related prehearing and post-hearing motions, conferences, and
21 discovery; or
22 (B) a legislative hearing or similar process.
23 (4) "Record" means information that is inscribed on a tangible medium or
24 that is stored in an electronic or other medium and is retrievable in perceivable
26 (c) Deferral from Scheduling.
27 Parties seeking to resolve an action using a collaborative law process must
28 request deferral from scheduling under N.D.R.Civ.P. 16 or N.D.R.Ct. 8.3. If the
29 court grants deferral, the court may not set any deadlines for the period specified in
30 the order approving deferral.
31 (d) Collaborative Law Participation Agreement.
32 (1) A collaborative law participation agreement must:
33 (A) be in a record;
34 (B) be signed by the parties;
35 (C) state the parties' intention to resolve a collaborative matter through a
36 collaborative law process under these rules;
37 (D) describe the nature and scope of the matter;
38 (E) identify the collaborative lawyer who represents each party in the
39 process; and
40 (F) contain a statement by each collaborative lawyer confirming the
41 lawyer's representation of a party in the collaborative law process.
42 (2) Parties may agree to include in a collaborative law participation
43 agreement additional provisions not inconsistent with these rules.
44 (e) Beginning and Concluding Collaborative Law Process.
45 (1) A collaborative law process begins when the parties sign a collaborative
46 law participation agreement.
47 (2) A court may not order a party to participate in a collaborative law
48 process over that party's objection.
49 (3) A collaborative law process is concluded by a:
50 (A) resolution of a collaborative matter as evidenced by a signed record;
51 (B) resolution of a part of the collaborative matter, evidenced by a signed
52 record, in which the parties agree that the remaining parts of the matter will not be
53 resolved in the process; or
54 (C) termination of the process.
55 (4) A collaborative law process terminates:
56 (A) when a party gives notice to other parties in a record that the process is
58 (B) when a party:
59 (i) begins a proceeding related to a collaborative matter without the
60 agreement of all parties; or
61 (ii) in a pending proceeding related to the matter:
62 -- initiates a pleading, motion, order to show cause, or request for a
63 conference with the court;
64 -- requests that the proceeding be put on the court's active calendar; or
65 -- takes similar action requiring notice to be sent to the parties; or
66 (C) except as otherwise provided by Rule 8.10(d)(7), when a party
67 discharges a collaborative lawyer or a collaborative lawyer withdraws from further
68 representation of a party.
69 (5) A party's collaborative lawyer must give prompt notice to all other
70 parties in a record of a discharge or withdrawal.
71 (6) A party may terminate a collaborative law process with or without
73 (7) Notwithstanding the discharge or withdrawal of a collaborative lawyer,
74 a collaborative law process continues, if not later than 30 days after the date that
75 the notice of the discharge or withdrawal of a collaborative lawyer required by
76 Rule 8.10(d)(5) is sent to the parties:
77 (A) the unrepresented party engages a successor collaborative lawyer; and
78 (B) in a signed record:
79 (i) the parties consent to continue the process by reaffirming the
80 collaborative law participation agreement;
81 (ii) the agreement is amended to identify the successor collaborative lawyer;
83 (iii) the successor collaborative lawyer confirms the lawyer's representation
84 of a party in the collaborative process.
85 (8) A collaborative law process does not conclude if, with the consent of the
86 parties, a party requests a court to approve a resolution of the collaborative matter
87 or any part of it as evidenced by a signed record.
88 (9) A collaborative law participation agreement may provide additional
89 methods of concluding a collaborative law process.
90 (f) Disqualification of Collaborative Lawyer and Lawyers in Associated
91 Law Firm.
92 (1) Except as otherwise provided in Rule 8.10(e)(3), a collaborative lawyer
93 is disqualified from appearing before a court to represent a party in a proceeding
94 related to the collaborative matter.
95 (2) Except as otherwise provided in Rule 8.10(e)(3), a lawyer in a law firm
96 with which the collaborative lawyer is associated is disqualified from appearing
97 before a court to represent a party in a proceeding related to the collaborative
98 matter if the collaborative lawyer is disqualified from doing so under Rule
100 (3) A collaborative lawyer or a lawyer in a law firm with which the
101 collaborative lawyer is associated may represent a party:
102 (A) to ask a court to approve an agreement resulting from the collaborative
103 law process; or
104 (B) to seek or defend an emergency order to protect the health, safety,
105 welfare, or interest of a party or family member if a successor lawyer is not
106 immediately available to represent that person.
107 (4) If Rule 8.10(e)(3)(B) applies, a collaborative lawyer, or lawyer in a law
108 firm with which the collaborative lawyer is associated, may represent a party or
109 family member only until the person is represented by a successor lawyer or
110 reasonable measures are taken to protect the health, safety, welfare, or interest of
111 the person.
112 (g) Disclosure of Information.
113 Except as otherwise provided by law, during the collaborative law process,
114 on the request of another party, a party must make timely, full, candid, and
115 informal disclosure of information related to the collaborative matter without
116 formal discovery. A party also must update promptly previously disclosed
117 information that has materially changed. The parties may define the scope of
118 disclosure during the collaborative law process.
119 (h) Additional Alternative Dispute Resolution Following Collaborative
121 When a case has been deferred under N.D.R.Ct. 8.10(b) and is reinstated
122 with new counsel or a collaborative law process has resulted in withdrawal of
123 counsel prior to the filing of the case, the court should not ordinarily order the
124 parties to engage in further ADR proceedings without the agreement of the parties.
125 Participation in the collaborative law process constitutes ADR participation for
126 reporting in the N.D.R.Ct. 8.8 statement.
127 EXPLANATORY NOTE
128 Rule 8.10 took effect _____________________________.
129 Rule 8.10 is designed to facilitate use of collaborative law in North Dakota.
130 Sources: Joint Procedure Committee Minutes of January 29-30, 2015, pages
131 3-6; September 25-26, 2014, pages 2-3; April 24-25, 2014, pages 4-10; April 25-
132 26, 2013, pages 23-26.
133 Cross Reference: N.D.R.Ev. 513 (Collaborative Law Privilege).