By: Cynthia M. Weston
After many years of effort on the part of our practitioners, the New Hampshire legislature passed the New Hampshire Collaborative Law Act, signed into law on October 9, 2021. It can be found at New Hampshire Revised Statutes, Title 51-Courts, Chapter 490-J 1-16. Our Collaborative Law Act is fashioned from the Uniform Collaborative Law Act but tailored to fit New Hampshire practice. The NH Collaborative Law Act is expected to support the use of the collaborative law process by codifying standards of practice and enforceability of the agreements for those who participate.
The passage of the NH Collaborative Law Act is intended to ensure that the visibility and viability of the collaborative law process in this state will increase and thrive. We are proud to note that New Hampshire was the twenty-first state to pass a collaborative law act, and the first state to do so in New England.
Chapter 490-J applies to those who have signed a participation agreement and intend to/have commenced the collaborative law process. The statute sets forth requirements for the commencement of the process as well as the termination of the process and the responsibilities that come with both. Included in the statute are the requirements for the contents of a participation agreement in order to have that contract upheld. Of particular note, the statute allows for parties who wish to leave the litigation process to jointly apply for a stay of legal proceedings, and, if the stay is granted by the court, sign a participation agreement, and participate in the collaborative process. It is our hope that, as the public becomes more aware of this excellent alternative dispute resolution choice, they will elect it, even if they previously commenced litigation.
Of great significance is the statute’s mandate to recognize the enforceability of the participation agreement as a contract, as well as any agreement signed by the parties during the collaborative process. RSA 490-J 8. It is hoped that parties to the collaborative process can be reassured that their agreements, when signed in the process, will be enforceable, even if the process does not result in a complete set of agreements to finalize a divorce action. Thus, for example, valuation dates and parenting plans can have enforceability even if the parties were unable to reach a resolution on all matters.
The NH Collaborative Law Act provides clarity for the disqualification of lawyers (RSA 490-J:9), mandates open and cooperative discovery/exchange of information from the parties (RSA 490-J:10), guidance and mandates for domestic violence screening or action during the collaborative process (RSA 490-J:13).
The Act also clarifies confidentiality and privileged communications in RSA 490-J:14 and 15, with certain exceptions, while making clear that information otherwise subject to “discovery” in litigated cases is not privileged. The confidentiality and privilege against disclosure allows for parties and professionals to brainstorm and think “outside the box” for the family without the fear that it will later be used in any form absent part of a signed collaborative agreement.
Finally, RSA 490-J:16 provides for the enforcement of an agreement or the application of a privilege where a court finds that the parties signed a participation agreement and reasonably believed they were participating in the collaborative process. This provision, and indeed the tone of the entire New Hampshire Collaborative Law Act, provides guidance to practitioners, the public, and the courts. It is our hope as practitioners of collaborative law in New Hampshire that this is viewed as progress in support of a process we have all come to value. We trust that with continued effort, our Alliance can bring the message to the public and other practitioners that the collaborative process is a viable, respectful, and supportive process for those seeking alternative dispute resolution.