Mississippi courts adopt rules for collaborative law, but what is it? When does it start?

Mississippi became the 25th state this year to adopt rules of collaborative law, which allows people to sit together at the table to work through their differences in hopes of avoiding what could become contentious court proceedings.

Hattiesburg attorney Jennifer Ingram Johnson was elected president of the Mississippi Bar Association but had not yet taken office when she attended a continuing education class in Texas, where she learned about collaborative law.

She thought it would be something beneficial to Mississippi, so when she took office she put together an ad hoc committee to study the feasibility of establishing collaborative law in the state.

"Divorce doesn't end a relationship," Johnson said. "Divorce changes it, so it's best to preserve all parts of the relationship that you can preserve. Let go of the ones you can't, but there's got to be part of it that continues for the children's sake. If you can go through a collaborative process and reach an agreement, the children come out ahead."

Click here to read the full Supreme Court order.

Jackson attorney Mark Chinn spearheaded the team that worked on shaping the collaborative law rules. The process began in 2020, and the proposal was submitted to the state Supreme Court in 2022.

Although it took several years to bring the effort to fruition, the court voted to support the collaborative law rules, announcing July 26 that they would be added to the state's judicial playbook.

Johnson said she is proud of the efforts by Chinn, the committee and others involved in bringing collaborative law to fruition in Mississippi.

As an attorney, Johnson became an advocate in court to help one side or the other through the court process. Later, she began mediating domestic cases, which would work toward a resolution of the issue involved without siding with either party. Collaborative law is just another tool to help people settle their differences.

Although she learned about collaborative law in a workshop, her interest in the subject and in her other efforts to preserve family integrity stemmed from her own experience in getting a divorce and settling child custody matters. She said she was fortunate to have worked out an amicable solution with her ex-husband and the two were able to co-parent successfully.

"This idea was borne out of my own personal experience," Johnson said. "Out of that came the desire to affect how other people experience divorce in Mississippi."

Although the full court voted to adopt the new rules, the decision wasn't unanimous. Three justices, including Presiding Justice Leslie King of Greenville, declined to approve the order.

“The concern that I had was that it was not necessary," King said in an email. "It could be done under the rules as they presently exist. Why adopt a rule for something that you could already do? I don’t think that it creates anything that’s not already there in previously existing procedural rules."

But the justices who voted to adopt the new rules felt it would be a benefit to people who are going through difficult times in their lives.

"Oftentimes when parties square off in court, nobody wins," said Justice Dawn Beam of Sumrall, who is an attorney and former chancery judge. "It can be so hurtful to have to put the very worst out about both sides. Any time that we can resolve cases without having to come to that point is always a win for everybody."

Beam said the parties can save money by avoiding discovery costs; have less time in court or perhaps none at all; resolve their issues more quickly; and reduce the stress involved in airing personal matters in court.

"I don't know of any more stressful time than when you go through the court system for divorces, custodies and things like that," Beam said.

The Rules for Collaborative Law take effect Aug. 26. Louisiana and Kentucky adopted similar rules this year, bringing the total to 25 states and the District of Columbia that have collaborative law rules modeled after the American Bar Association's Uniform Collaborative Law Act of 2010.

Utah was the first state to adopt collaborative law rules in 2010, followed by Texas and Nevada in 2011.

What does collaborative law cover?

Some of the issues that may be resolved by using the new rules:

• marriage, divorce, dissolution, annulment and property distribution
• child custody, visitation and parenting time
• alimony, maintenance and child support
• adoption
• parentage
• premarital, marital and post-marital agreements
• post-order actions, including modifications, enforcements and contempts

How collaborative law works

Some of the items included in the collaborative law rules:

Parties to a family law dispute sign a Collaborative Law Participation Agreement. The agreement requires the parties to forgo court intervention in determining how the dispute should be resolved. The agreement is a binding contract.

"Everybody is on even ground," Beam said. "That allows for a lot of trust."

A judge cannot order parties to enter into a collaborative agreement. It is a voluntary process in which all the involved parties must agree.

The parties must each have their own attorneys but can agree on one set of professionals, experts and investigators who are neutral to the process and share the cost, rather than each party hiring their own.

All parties must agree to full disclosure of information that is pertinent to the collaboration process. The information used in the collaboration is confidential and may not be discussed with anyone not involved. The information disclosed is privileged except in rare instances, for example, acts of violence or neglect; documents that are public record; or alleged misconduct by an attorney involved in the process.

"The hope is people really can put their cards on the table and do what's best for them and their kids," Beam said.

Attorneys for the parties should be aware of violent or coercive tendencies that could be harmful to the collaborative process or the parties involved and take steps, if needed, to protect their clients, including ending the collaborative process, if necessary.

The agreement is concluded once the parties agree on the terms of all or part of the conflict or at least one of the parties decides to end the collaboration efforts.

If collaborative efforts fail, the parties would have to retain a new set of lawyers to help them litigate the matters they cannot agree on. This is to prevent any conflict of interest by the collaborating attorneys, who would be privy to information that could be used against the other party in the courtroom. The new attorneys cannot work at the same law firm as the collaborating attorneys.

This, of course, will make the process more expensive and time-consuming, Beam said.

"All the more reason to try to resolve it," Beam said.

The state's chancery courts will still have oversight over the cases, which are subject to review once the agreements are filed with the court.

"Chancellors will still have that authority," Beam said. "In particular, the court is going to want to make sure that the children are adequately provided for."

Some chancellors may decide to approve the filings without meeting with the parties, while others may want to speak with the parties before approving a collaborative agreement, since it is legally binding.

"Judges need to approach the case as they see fit," Beam said. "You don't want to take away the importance of their review. Once the judge signs that, it is just as binding (as a litigated case). Invariably conflicts arise, but as long as we have a good order that covers those, everybody just has to rely on that order. Hopefully that will cut down on that conflict."

Contact Lici Beveridge at lbeveridge@gannett.com . Follow her on X  @licibev or Facebook at facebook.com/licibeveridge .

This article originally appeared on Hattiesburg American: Mississippi courts adopt rules for collaborative law, but what is it? When does it start?