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 a civil action without court action other than approval of a stipulated settlement.
5 The process requires collaborative lawyers and other nonparty participants to
6 be discharged if the collaborative law process is unsuccessful. The process may
7 include the use of alternative dispute resolution neutrals as defined in N.D.R.Ct.
8 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 document, 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) "Collaborative matter" means a dispute, transaction, claim, problem, or
17 issue for resolution in a civil action, which is described in a collaborative law
18 participation agreement.
19 (3) "Nonparty participant" means a person, other than a party and the
20 party's collaborative lawyer, that participates in a collaborative law process.
21 (4) "Document" means information inscribed on a tangible medium or
22 stored in an electronic or other medium that is retrievable in perceivable form.
23 (c) Deferral from Scheduling.
24 Parties seeking to resolve a civil action using a collaborative law process
25 must request deferral from scheduling under N.D.R.Civ.P. 16 or N.D.R.Ct. 8.3.
26 If the court grants deferral, the court may not set any deadlines for the period
27 specified in the order approving deferral.
28 (d) Collaborative Law Participation Agreement.
29 (1) A collaborative law participation agreement must:
30 (A) be in a document;
31 (B) be signed by the parties;
32 (C) state the parties' intention to resolve a collaborative matter through a
33 collaborative law process under these rules;
34 (D) describe the nature and scope of the matter;
35 (E) identify the collaborative lawyer representing each party; and
36 (F) contain a statement by each collaborative lawyer confirming the
37 lawyer's representation of a party in the collaborative law process.
38 (2) Parties may agree to include in a collaborative law participation
39 agreement additional provisions consistent with these rules.
40 (e) Beginning and Concluding Collaborative Law Process.
41 (1) A collaborative law process begins when the parties sign a collaborative
42 law participation agreement.
43 (2) A court may not order a party to participate in a collaborative law
44 process over that party's objection.
45 (3) A collaborative law process is concluded by a:
46 (A) resolution of a collaborative matter as evidenced by a signed
48 (B) resolution of a part of the collaborative matter, evidenced by a signed
49 document, in which the parties agree that the remaining parts of the matter
50 will not be resolved in the process; or
51 (C) termination of the process.
52 (4) A collaborative law process terminates:
53 (A) when a party gives notice to other parties in a document that the
54 process is ended;
55 (B) when a party:
56 (i) begins a proceeding related to a collaborative matter without the
57 agreement of all parties; or
58 (ii) in a pending proceeding related to the matter:
59 initiates a pleading, motion, order to show cause, or request for a
60 conference with the court;
61 requests that the proceeding be put on the court's active calendar; or
62 takes similar action requiring notice to be sent to the parties; or
63 (C) except as otherwise provided by Rule 8.10(d)(7), when a party
64 discharges a collaborative lawyer or a collaborative lawyer withdraws from further
65 representation of a party.
66 (5) A party's collaborative lawyer must give prompt notice to all other
67 parties in a discharge or withdrawal document.
68 (6) A party may terminate a collaborative law process with or without
70 (7) Notwithstanding the discharge or withdrawal of a collaborative lawyer,
71 a collaborative law process continues, if not later than 30 days after the date that
72 the notice of the discharge or withdrawal of a collaborative lawyer required by
73 Rule 8.10(d)(5) is sent to the parties:
74 (A) the unrepresented party engages a successor collaborative lawyer; and
75 (B) in a signed document:
76 (i) the parties consent to continue the process by reaffirming the
77 collaborative law participation agreement;
78 (ii) the agreement is amended to identify the successor collaborative lawyer;
80 (iii) the successor collaborative lawyer confirms the lawyer's representation
81 of a party in the collaborative process.
82 (8) A collaborative law process does not conclude if, with the consent of the
83 parties, a party requests a court to approve a resolution of the collaborative matter
84 or any part of it as evidenced by a signed document.
85 (9) A collaborative law participation agreement may provide additional
86 methods of concluding a collaborative law process.
87 (f) Disqualification of Collaborative Lawyer and Lawyers in Associated
88 Law Firm.
89 (1) Except as provided in Rule 8.10(e)(3), a collaborative lawyer
90 is disqualified from appearing before a court to represent a party in a proceeding
91 substantially related to the collaborative matter.
92 (2) Any disqualification of a lawyer in a law firm with which the
93 collaborative lawyer is associated is governed under N.D.R. Prof. Conduct 1.10.
94 (3) A collaborative lawyer may represent a party:
95 (A) to ask a court to approve an agreement resulting from the collaborative
96 law process; or
97 (B) to seek or defend an emergency order to protect the health, safety,
98 welfare, or interest of a party or family member if a successor lawyer is not
99 immediately available to represent that person.
100 (4) If Rule 8.10(e)(3)(B) applies, a collaborative lawyer may represent a
101 party or family member only until the person is represented by a successor lawyer
102 or reasonable measures are taken to protect the health, safety, welfare, or interest
103 of the person.
104 (g) Disclosure of Information.
105 Except as otherwise provided by law, during the collaborative law process,
106 on the request of another party, a party must make timely, full, candid, and
107 informal disclosure of information related to the collaborative matter without
108 formal discovery. A party also must update promptly previously disclosed
109 information that has materially changed. The parties may define the scope of
110 disclosure during the collaborative law process.
111 (h) Additional Alternative Dispute Resolution Following Collaborative
113 When a case has been deferred under N.D.R.Ct. 8.10(b) and is reinstated
114 with new counsel or a collaborative law process has resulted in withdrawal of
115 counsel prior to the filing of the case, the court should not ordinarily order the
116 parties to engage in further ADR proceedings without the agreement of the parties.
117 Participation in the collaborative law process constitutes ADR participation for
118 reporting in the N.D.R.Ct. 8.8 statement.
119 EXPLANATORY NOTE
120 Rule 8.10 took effect March 1, 2016.
121 Rule 8.10 is designed to facilitate use of collaborative law in North Dakota
122 and is derived from the Uniform Collaborative Law Act and Minn. Gen. R.
123 Prac.111.05 (Collaborative Law).
124 Sources: Joint Procedure Committee Minutes of January 29-30, 2015, pages
125 3-6; September 25-26, 2014, pages 2-3; April 24-25, 2014, pages 4-10; April 25-
126 26, 2013, pages 23-26.
127 Cross Reference: N.D.R.Ev. 513 (Collaborative Law Privilege); N.D.R.
128 Prof. Conduct 1.9 (Duties to Former Client), N.D.R. Prof. Conduct 1.10 (Imputed
130 Disqualification: General Rule).