One hot topic of discussion in recent years has been whether arbitration is available within the Collaborative Law process. Now that Washington has enacted the Uniform Collaborative Law Act (UCLA), the answer is an unequivocal "no"—arbitration is not available within a Collaborative divorce.
The UCLA includes arbitration as a "tribunal" in its definitions, and prohibits Collaborative lawyers from representing parties in tribunals. Additionally, a Collaborative Divorce automatically terminates when a proceeding in any tribunal is started. (For those looking for the legal citations, see RCW 7.77.010(15) and also subsections (3) and (10), 7.77.040(4) , and 7.77.080.) There is no provision to allow parties to agree to bypass the statutory requirements.
Why does the UCLA prohibit arbitration during a Collaborative divorce? The Collaborative Law process is designed to help parties work together to reach agreements—in other words, the parties themselves are the decision makers while professionals provide them the structure and information to make solid decisions. Collaborative Law is highly successful at helping parties reach consensual agreements. By contrast, arbitration is designed to obtain a decision from an outsider—the arbitrator. As defined by law, the job of an arbitrator is to "render an award" which is enforceable like a court order. Like a court order, an arbitration award is an imposed outcome based on the arbitrator's assessment, and not the parties' own standards. In other words, arbitration is designed as an adversarial proceeding in which the arbitrator decides between two parties who cannot agree. (For legal citations about the role of the arbitrator, see RCW 7.04A.010(2) and 7.04A.250.) The goal in Collaborative Law is to work constructively towards an agreement that all can accept, while the goal in arbitration is to adjudge which arguments win and which lose.
The work of the lawyers (and other professionals) also differs between Collaborative Law and arbitration. Collaborative Divorce lawyers help empower and support their clients to be able to work constructively together towards a mutually acceptable agreement. By contrast, lawyers in arbitration create arguments and marshal evidence to persuade the arbitrator, with the goal of getting a decision that is desired by their own client regardless of its acceptability by the other party.
In many ways, the prohibition on arbitration in Collaborative Law proceedings is merely a clarification of the scope of the disqualification requirement for Collaborative Law cases. (See RCW 7.77.080.) Disqualification creates strong incentives to behave in a manner most conducive to reaching agreements and to work diligently towards reaching agreements. Disqualification also removes incentives to act in a manner that runs contrary to reaching agreement. Eliminating the "easy out" to litigation/arbitration increases the likelihood that all will fully commit to the goal of reaching agreement, and that all will continue to work towards agreement after hitting normal rough patches that lie on the road to agreement.
With the UCLA being enacted, the risk of a case being steered to arbitration is no longer a possibility in Collaborative divorces.