The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases

1. INTRODUCTION

The exponential growth of "collaborative family lawyering" (CFL) is one of the most significant developments in the provision of legal services in the last 25 years. Although the first collaborative lawyering initiative began in Minneapolis just 14 years ago, there are now more than 120 CFL groups across Canada and the U.S., with new groups emerging constantly.[1] The subsequent expansion of the concept of "settlement-only lawyering" in family conflicts has implications for lawyers, their clients and families, and for the regulation and support of family legal services by the state.

This report describes the results of a three-year research project that examined the practice of CFL in Canada and the U.S. The objective of the research was to explore the differences that CFL makes to the process and outcome of divorce disputes, and in particular to assess its impact on the clients of family legal services. A parallel goal was to evaluate the impact of CFL on traditional lawyering values and practices and to identify the core values of competent and effective CFL.

A. The Decline of Cooperation

For more than two decades, some of the most respected scholars in the field of dispute resolution have questioned the apparently intrinsic bias of litigation against cooperative, problem-solving outcomes for clients. The continuing discussion focusses on the increasingly adversarial and uncivil character of much civil litigation, especially commercial litigation;[2] the abuse of discovery practices to extend and escalate conflict and costs;[3] the pressure to compete rather than to cooperate when facing the uncertainty of the other side's next move (the classic "prisoner's dilemma");[4] an observed tendency to reduce the amount of counselling and "deliberative wisdom" provided by private corporate lawyers in favour of specialist technical advice;[5] and the absence of an established discourse and set of cultural behaviours to enable lawyers to speak to one another about the potential for cooperation.[6] What, if anything, can be done to change these characteristics of litigation, assuming that lawyers continue to play a crucial role as party representatives? In particular, what is the potential for changing the rules of the litigation game in a way that can change the culture of disputing and dispute resolution?

B. A Crisis in Family Legal Services?

The negative impact of adversarial litigation and the ensuing crisis of confidence in legal services is nowhere more apparent than in family law practice. The rate of divorce continues to be high. Some of the trends of the last 20 years (for example, an increasing number of families accustomed to a lifestyle supported by two incomes, limited changes in attitudes toward shared parenting by men and women, and the emergence of sexual orientation as a factor in the ending of some marriages) have added to the complexity and the acrimony of many of these family transitions. More generally, legal norms surrounding divorce and family reconfiguration have become more numerous and diverse with many more variations in custody and support outcomes. At the same time, there is growing awareness of the multiple impacts of hostile pre-divorce and post-divorce relationships on children, effects undoubtedly heightened by protracted litigation.[7] There has also been a significant rise in pro se divorce applicants.[8] This may, in some jurisdictions, reflect reductions in legal aid provision,[9] and the rising costs of legal services. One might further speculate that at least some of this increase is attributable to a general antipathy toward the usefulness of counsel in dispute resolution processes, and a growing disenchantment with the ability of family lawyers to offer practical, expedient solutions to family conflict.

Working in this environment takes its toll on practitioners also—levels of disillusionment and burnout are legendary among family lawyers.[10] There is an appetite for a different way to practice law, perhaps returning family practice to its more traditional forms of counselling and support. One example of this dissatisfaction is the significant numbers of family lawyers who have taken mediation training, many in the hope of developing a family mediation practice. However, the emergence of family mediation has done less than was first hoped to change the way that family law is practiced. There is relatively little overlap in service provision—although many family mediators are also lawyers, the small number who have been successful in developing large family mediation practices often abandon legal practice altogether. Few maintain a balance of mediation and representation within one professional practice. Where lawyers participate regularly in mediation as client advocates (for example, where mediation is mandatory within court programs), the tension between the contrasting roles played by the mediator and by legal counsel is not fully resolved. Whereas some mediators are highly creative about working with lawyers in the mediation process, in many jurisdictions and programs it is conventional for mediators to work directly with clients alone and use lawyers only as consulting attorneys outside the process.[11]

Over the last 20 years, family mediation has been able to offer a critical alternative to a traditional litigation course and make an important difference to the resolution of many family conflicts. However, the overall impact of family mediation on the broader delivery of family legal services in any one jurisdiction varies widely and is often limited, especially where the local family bar is not invited into the process. It has certainly not satisfied the appetite of many family lawyers for change.

C. Background to the Development of CFL

One way to re-conceptualize the role of the lawyer is to supplement the existing responsibility to facilitate settlement. Professional codes of conduct attempt to do this by requiring, for example, that counsel advise the client on a range of possible settlement processes, including alternative dispute resolution (ADR) options.[12] Other strategies include the development of a general firm-wide reputation for settlement expertise (for example, the establishment of an ADR department within a firm), or membership in a formal group (such as those corporations that have signed the CPR Pledge).[13] A more radical approach is to substitute the responsibility of counsel to facilitate settlement for their traditional core responsibility to win in litigation. This approach makes it possible to designate some lawyers as specialist "settlement counsel." Working alongside litigation counsel on the same file, settlement counsel can offer clients special expertise in the negotiation of early settlements,[14] and can conduct negotiations, represent clients at mediation and generally offer assistance in relation to the development of consensual solutions at an early stage in litigation. If their best efforts fail, then their place is taken by "litigation counsel," who proceeds to trial.[15]

Despite some scholarly interest[16] and some experimentation within larger law firms with the creation of "ADR departments" composed of specialist settlement counsel, the culture of adversarial litigation has remained remarkably impervious to change. Even within law firms with ADR departments and a stated commitment to embracing settlement processes, the development of specialist settlement expertise has largely been limited to the work of one or two individuals rather than that of the whole firm, and has failed to affect the broader culture.[17] Settlement counsel is usually only retained on very large cases where it is possible to fund counsel for both settlement and litigation. This approach both limits the range of cases in which specialist settlement counsel would be a wise and affordable investment, and, to some extent, reduces the pressure to settle because a litigation strategy is being developed in parallel with settlement efforts.

The concept of collaborative lawyering (CL) extends the idea of a single settlement-only counsel into a settlement-only strategy adopted by all the lawyers participating in a single case. The basis of the retainer agreement on a collaborative law case is a contractual commitment between lawyer and client not to resort to litigation in resolving the client's problem. The legal services provided by counsel are limited to advice and representation regarding the non-litigious resolution of the conflict, focussing solely on developing a negotiated, consensual outcome. There is no parallel litigation strategy. If the client does decide that legal action is ultimately necessary to resolve the dispute, the retainer stipulates that the collaborative lawyer (along with any other collaborative professionals, such as divorce coaches or financial planners) must withdraw and receive no further remuneration for work on the case.

The first network of lawyers wishing to participate in CFL arrangements was set up in Minneapolis in 1990. Others have since emerged in many U.S. states. A number of groups around the San Francisco Bay area followed the Minneapolis initiative—there are now 22 groups in California alone.[18] Other early sites included Cincinnati, Ohio (since 1997); Medicine Hat, Alberta (since 1999); Atlanta, Georgia (since 2000); Salt Lake City, Utah (since 2000); and Vancouver, British Columbia (since 2000). Proponents of CFL suggest that this approach reduces legal costs, expedites resolution, leads to better, more integrative solutions, and enhances personal and commercial relationships. Currently limited almost entirely to the family law field,[19] the CL model suggests intriguing possibilities for the future delivery of legal services. It also raises many important questions, some of which go to the heart of the debate over the role of lawyers in dispute resolution and, in particular, case settlement within an adjudicative paradigm.

CFL assumes that clients are best protected where a commitment to cooperation is formalized in the shape of a withdrawal agreement laid out in the retainer agreement. CFL retainer agreements commit the lawyer to withdraw if the matter is litigated. This is the so-called disqualification agreement (DA). Rather than developing a settlement strategy once litigation has commenced, CFL proposes that the lawyer-client relationship be confined to developing a strategy before a suit is filed. The argument is that once a legal action has commenced, the temptation to use a legal discourse and paradigm to analyze and resolve disputes—first with threats, and then with action—is irresistible.[20] Instead, the objective of CFL is to change the context for negotiation itself,[21] and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation. The need for a DA is the subject of intense debate and will be discussed further later in this report (in section 4(E)).

D. Collaborative Lawyering Groups: A Social and Professional Phenomenon

It is instructive to begin with a sense of how CFL has developed via local groups and regional networks across North America in the past decade, particularly in the past three to four years.[22] While there are some important regional variations in the way that CFL is practiced, the emergence of CFL groups in towns and cities has followed a fairly consistent pattern. CFL groups generally develop around one or two highly motivated and dynamic individuals. These individuals have often taken CFL training in another city and have returned excited about the possibilities of initiating a CFL network in their hometown. Often these individuals describe themselves as having reached the end or close to the end of their desire to continue practicing family law, before encountering the alternative of CFL. There is, not surprisingly, widespread disillusionment among CFL lawyers with litigation as a tool for family conflict resolution. The intensity of the revulsion expressed toward litigation is sometimes startling (see the further discussion in section 3(A) of this report).

For these lawyers, the discovery of a different way to practice that eliminated much of the stress and pain of litigation for themselves and their clients provided a reason to stay in practice.

Many CFL lawyers speak of a different, more satisfying collegial relationship they can now enjoy with their clients. These lawyers were seeking to broaden and redefine their relationship with their clients, and they see in CFL a means of doing so.

It is not uncommon for leading proponents of CFL to have a highly litigious past—a number say they once enjoyed the high pressure of litigation. This often makes for CFL role models who are something of a surprise to the local legal community—but perhaps more influential as a result of their conversion. Some CFL lawyers describe their commitment to CFL in just such quasi-religious terms, and this in turn fuels a desire to persuade their clients to use the collaborative process.

Of course, some lawyers see CFL simply as a new marketing tool, and scepticism about collaborative law is often expressed in these terms. My own experience from talking at length with large numbers of CFL lawyers in many local and regional groups is that the vast majority are genuinely motivated by a desire for self-improvement and enhanced client service. While there is a danger—as with any innovation—that lawyers will simply "jump on the CFL bandwagon" in the hope of future advantage, my strong impression is that, for most CFL lawyers, this is a personal and professional commitment that goes deeper than file management economics.[23]

Another consistent feature in the development of CFL is the organization and functioning of the CFL groups themselves. The CFL groups were initially ad hoc collectives of lawyers, but each has been quick to adopt a formal constitution. All CFL groups have created local rules for membership, which vary only slightly. They usually require members to have a specified number of years in family practice and to have taken CFL training or mediation training. There are also renewal criteria, such as continuing training, attendance at group meetings and, of course, the payment of dues. In these ways, CFL groups play a significant gatekeeping function. Their members-only policies have occasionally created controversy within the local bar. An especially thorny issue for some CFL groups is whether to restrict membership to lawyers or to include other collaborative professionals, such as mental health professionals and financial planners. Some groups began with an open invitation to all those professionals working with families in conflict, creating a membership drawing from various professional disciplines. Other groups currently restrict their membership to practicing lawyers. Some groups began by restricting membership to lawyers but now wish to broaden their membership to include other collaborative professionals—often a difficult transition (see the further discussion in section 6(D) of this report).

In each CFL centre, there appears to be a strong commitment to establishing a uniformity of practice—whatever the practice model is for that particular group. The desire to establish orthodoxies, while not surprising in a new practice area, may raise future questions about how far the CFL credo or model is driving the practice, rather than vice versa. It also means that there is some tension between the different approaches of different CFL groups. It is ironic—although unsurprising, in light of the history of innovative dispute resolution processes such as family mediation—that a process designed to facilitate responsiveness and flexibility should so rapidly be consumed with concerns about purity of practice. Significant variations in CFL practice are discussed further in the next section.

Finally, it is worth noting that, as was common in the early days of mediation, the extent of CFL training and the excitement generated by CFL currently outstrip the volume of cases actually being handled using a formal collaborative retainer agreement. Only a few centres have established a significant volume of collaborative law cases, although these numbers are certainly growing. A handful of lawyers in these centres limit their practice to collaborative cases, but they are the exception. One smaller centre has effectively established CFL as the default dispute resolution process—over mediation and litigation—by sheer weight of collaboratively trained lawyers. However, most CFL groups are just beginning the task of persuading their clients that CFL is preferable to litigation, and many CFL-trained lawyers are frustrated by the lack of CFL cases for them to work on. Almost all lawyers wishing to use CFL continue to take litigation cases as well.

This study chose to focus on pilot sites with established CFL caseloads, where lawyers have had at least four or five experiences of using CFL, rather than tracking first experiences with CFL. In 2002, this meant that relatively few sites were generating a good-sized pool of possible case studies. A study launched today would have more choices in this respect, with the increased volume of functioning CFL groups. Section (2)(B) of this report describes the pilot sites chosen.

E. Principal Variations in CFL Practice

While the underlying motivations and structures adopted in the formation of CFL groups follow a consistent pattern, there is a wide diversity of philosophical and strategic approaches to CFL practice. Groups that have developed in different cities and regional centres often carry a torch for one of a number of diverse models of CFL practice. These various credos are useful in identifying defining axes of practice. These include the following: how much legal advice is provided to clients, and whether this advice is specific to the clients' circumstances or generalized ("usually in these types of cases"); whether counsel meets privately with clients outside four-ways and, if so, how often; how counsel construes lawyer-client privilege in these private discussions; what relevant information must be disclosed for the purposes of collaboration, and how much pressure may be brought to bear on clients to reveal sensitive information to the other side; and whether, lawyers will promote the idea of coaches or other collaborative professionals (financial advisors, child specialists) to clients, to the point of insisting upon their inclusion.

The most frequently encountered variations could be characterized as ideal types that represent particular approaches. The three ideal types that appear most often in this research data are by no means the only possible models that may emerge from CFL, but they do represent some significant variations in both philosophy and practice orientation.[24] These ideal types are offered as a means of expanding our understanding of the practice norms and choices in CFL and should be interpreted as tentative distinctions for that purpose. They reflect the types of distinctions that CFL lawyers themselves are making as they speak about their own practice norms in CFL.

These three ideal types are as follows.

i. The traditional legal advisor who commits to cooperation

This model of CFL (the Cooperative Advisor) casts the role of the lawyer in fairly traditional terms when it comes to providing legal advice and looking out for the client's interests. For example, lawyers who tend to practice in this model of CFL would still offer initial and ongoing legal advice, undertake case-specific research as necessary and ensure that the legal options are clear to the client throughout the process. For example,

Some lawyers seem to think they don't need to prepare on the law because [they are] no longer filling a traditional legal advice role. [I] would still do the necessary background analysis… Case 7, lawyer 2, entry interview, unit 51

Nonetheless, this ideal type clearly feels the terms of a collaborative retainer change the lawyer's role in many other respects. The client has more responsibility for deciding on outcomes. And the negotiations, while framed by the law, may not focus on legal options. For example,

In four-ways, the law still casts its shadow but we are seeking a fair solution. Field visit, lawyer 20

Cooperative Advisors continue to regard legal advice—advice specific to a particular case (see below)—as a critical part of their professional role, and this perception leads them to a clarity that their primary responsibility is to their client, and not to the collaborative team or to the "whole family." For example,

I think, to be honest, it's natural for an attorney…that my best friend in the room is always going to be my client. Case 11, lawyer 2, entry interview, unit 450

I absolutely think I have a special responsibility to my client. I mean, I am their attorney. I am her attorney or his attorney and there is no question in my mind that that is my primary duty. I mean, that's what my job is, that's what I'm being retained for, and if that's not the case, there can be a mediation with two mediators who are neutrals. Case 12, lawyer 1, entry interview, unit 121

This ideal type also tends to express the greatest concern when one party or the other appears to be waiving a legal entitlement. Lawyers who favour this ideal type will be at pains to ensure that their client addresses and accepts all issues—even when the client then becomes impatient with the process. For example,

What was most difficult (in this case) was making sure that there was an objective as well as subjective basis for this decision. Case 2, lawyer 2, exit interview, unit 182

In many ways, Cooperative Advisors fit the CFL process into and around their existing norms of client advocacy and representation, or attempt to blend the two. In the next two ideal types, one senses that CFL has become the dominant ideology to which every other practice choice must now relate.

ii. The lawyer as friend and healer

This ideal type (the Lawyer as Friend) reconceives the traditional role of the lawyer further. Embracing CFL means embracing—developing from scratch, even—an entirely new role that feels appropriate to the model. These lawyers see themselves as playing a therapeutic role—sometimes alongside coaches, whom they would generally promote to the client, and sometimes solo. For example,

I am becoming much less of a traditional lawyer and much more of a coach. So the language that I'm using with you is language of connection, it's the language of support. The concept that I have is that I'm walking with my client through the process. Case 6, lawyer 1, entry interview, unit 35

This implies a significant change in the lawyer-client relationship. One lawyer describes this as follows:

I prefer the intimacy of client relationships that CFL allows…I am no longer a lawyer to my clients, I am a friend. Field visit, lawyer 6

Lawyers as Friends feel that providing a supportive and healing environment is a central aspect of their working expertise. They often present divorce as a journey of personal growth. When they meet privately with their clients, they often diagnose relationship dynamics and coach the client in ways to be effective in negotiation. The lawyer's role is to assist clients in realizing their personal and emotional, as well as their legal and problem-solving, goals. For example,

Part of my goal for them is to try to leave their dysfunctional communications systems behind and replace them, basically using ground up starting with baby steps, medium steps and then larger steps, with the goal being that the communicative system that they replace the old one with isn't something they lapse back into the old dysfunctionality. Case 11, lawyer 2, entry interview, unit 127

In short, the task at hand is enabling emotionally healthier individuals. A briefer but similar view is expressed by this lawyer:

We see it [the CFL process] as creating a much healthier person. Field visit, lawyer 2

Lawyers as Friends are often uncomfortable with the idea that they act as advocates for one side, and even with the implications of the word advocacy. For example,

Q: So what did it mean for you—what were the challenges for you of being his advocate in this case?
A: Oh, I never saw myself as being [an] advocate. I was primarily [the client's], and [the other lawyer's] and [the other client's], guide to their own capacity for having their internal behaviours be the right behaviours, vis-à-vis one another. And so, no, I never advocated anything. I advocated people trying to attain their best behaviours in a very unusual and time-compressed situation. Case 11, lawyer 2, entry interview, units 170‑177

This ideal type is unlikely to do much legal research specific to a client's case and provides only general legal advice. As one lawyer expressed it, "I don't give clients [specific] legal advice in the briefing or in the initial interview—I macro it." (Site visit, lawyer 3) The rationale for this approach is expressed as follows:

You know, we're very rights-based and we're very based on what our legislation, our province says and all that kind of thing. And we've really put that aside to a large degree. I mean, again, we have an obligation to make sure that people know what the court might do, which is, I think, as we get older, increasingly hard to figure out. But instead [we] favour options, what are the options…So what we try to avoid is saying, "You have the right to do this and these are your rights, these are your legal rights," overtly. Case 2, lawyer 2, entry interview, units 228-230, 260-265

The Lawyer as Friend believes that it is counterproductive to emphasize legal rights advice and that this is less constructive than working on the therapeutic dimensions of the divorce (see also above). For example,

I give as little legal advice as possible because there is so much contamination and you are trying to get them focussed back on life issues. There is basic information you have to give, and you have a duty to give this. But the trick is to get them focussed off that. Case 16, lawyer 2, entry interview, unit 17

Not all clients are comfortable with this approach; see the further discussion in section 3(D) of this report.

Glimpses of this ideal type appear in a number of lawyer interviews in this study, although a confident and consistent expression of these values is relatively uncommon. Many lawyers, however, appear to be struggling with the balance they wish to strike between this ideal type and the more traditional Cooperative Advisor (see the discussion in the previous section).

iii. The Team Player

This final ideal type has much in common with the Lawyer as Friend, but the Team Player's distinguishing characteristic is the promotion of the integrity of the CFL process over any other consideration (for example, maximizing client satisfaction, or matching or exceeding legal standards) that may factor into good outcomes. At its most extreme, for example,

I don't really care about whether the outcome is optimal in terms of dollars and cents, but that [my client] and I live up to our collaborative principles. Case 11, lawyer 2, exit interview, unit 57

The Team Player is more focussed on the process than on substantive issues and outcomes, as follows:

Q: So your preparation with the client would be a preparation for the process, rather than actually doing an analysis of their case with them?
A: That's right.
Case 4, lawyer 2, entry interview, unit 177

This ideal type expresses complete faith that the CFL process will eventually produce an acceptable outcome and expects the same measure of faith from clients (although this trust is not always forthcoming; see the discussion in section 3(D)).

This ideal type generally sees all or almost all divorce cases as suitable for CFL. Team Players are tenacious about staying in the process and looking for a solution to emerge, and are sometimes less concerned than their clients about the length of time or use of resources that this approach consumes. Failed cases that do not reach settlement are explained as failures to use the process properly. For example,

[A]ny [failed CFL cases] that I've had anything to do with that have gone off the rails, you know, I think I can put my finger on exactly the reason or pretty close to a reason as to why it did. And any problems that were around early on, it was not paying enough attention to the process. Case 2, lawyer 2, entry interview, units 502-506

Sometimes this commitment to process leads Team Players to restrict communication with their own client to the four-ways, to ensure that the process is transparent and that legal advice is given in front of both parties. Even financial information may be reviewed for the first time in front of both parties.

This ideal type places a heavy emphasis on cooperation, communication and perhaps co-strategizing with the lawyer on the other side, including joint discussion of how to manage their respective clients in the CFL process. Relationships with colleagues are of paramount importance to the Team Player. As one said, "Success…is based on the strength of my relationships with colleagues." Case 8, lawyer 2, exit interview, unit 38

It may in fact be that lawyers favouring this approach see their primary relationship to be with the lawyer on the other side, rather than with their own client. Certainly those drawn to this ideal type recognize this is a delicate balance.

At each pilot site, as well as at the sites visited during year one of the study, there was some variation among these three ideal types. Few, if any, lawyers consistently identified with one of these three types alone, suggesting, as one would expect, that practice norms in CFL are still emergent and are not yet fixed.[25] However, at almost every site, one of these ideal types tended to dominate. On this basis, I would associate Minneapolis most closely with the first type (the Cooperative Advisor), Vancouver with the second type (the Lawyer as Friend) and Medicine Hat with the third type (the Team Player). This does not mean that each and every CFL lawyer at these sites conformed to this ideal type—far from it. However, in each case, the ideal type specified appeared to be the most prevalent approach. In San Francisco, the number of CFL practice groups made even this level of generalization impossible; all three types were represented among the different groups in the Bay Area.


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