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

10. THE RELATIONSHIP WITH MEDIATION

A. The Relationship between Collaborative Lawyering and Mediation

Much of the scepticism directed toward CFL has come not only from lawyers questioning this ideology of settlement but also from the family mediation movement. There has been a widespread sense that, at best, CFL does not properly recognize its roots in principled negotiation and facilitative mediation, and, at worst, is a cover for the all-too-familiar lawyer takeover of a new dispute resolution process. Non-lawyer mediators may be troubled by the fact that collaborative lawyers have greater access to family clients than they do, and therefore the power to both discourage the use of a mediator and to divert potential mediation clients into the CFL process. Rarely explicitly articulated, this power struggle within the broad field of conflict resolution has been playing itself out in the debate over the credentials of CFL trainers—should they be practicing CFL lawyers who might be trained in mediation, or could they be experienced mediation trainers without CFL experience? Are real collaborative lawyers those who were previously trained in mediation, or are skilled practitioners of CFL developing a new set of skills unique to family lawyers?

It seemed inevitable that the study explore the attitudes of collaborative lawyers toward mediation. Did they use it? How did they appraise its usefulness to their clients? What did they tell their clients about mediation? At the same time, collaborative clients were asked to describe why they chose CFL over mediation.

B. What Collaborative Law Clients Say About Family Mediation

Some clients had tried mediation before coming to CFL and clearly felt that their needs had not been met in the mediation process. The most frequently voiced criticism of mediation was that the parties felt that they were not making any real progress in their negotiations, which in some cases appeared to replay the dysfunctional communication patterns of the marriage.[88] Correctly or not, these clients saw their mediators as unable to break through that dynamic and create an environment for constructive and fair negotiation. As a result, these clients lost faith in mediation as a process. It may be important to note that each client who had tried mediation before coming to CFL had participated in mediation without a lawyer either present or acting in an advisory capacity.

A second group of clients had weighed the potential advantages and disadvantages of mediation and CFL before choosing to engage a collaborative attorney. Their reasons for preferring CFL were almost always described in terms of doing better, a concept that included reducing the risk of getting a bad deal or simply giving away too much, and equalizing what they otherwise regarded as an uneven negotiation. For example, one client stated, "My concern was that I would not have legal representation in mediation, and I felt like I did not know a lot about this arena—my husband is more experienced than me because he has been married before—and besides, he negotiates for a living." (Case 13, client 2, entry interview, units 9-10)

This is a concern that is sometimes also understood by the party perceived as more powerful. One client stated, "It was clear that mediation…required both parties to sort of feel equally comfortable in terms of financial sophistication, not being screwed and so forth. Knowing my wife, even though she's very smart about this stuff, she would come at this with a feeling of insecurity and like I knew more." (Case 11, client 2, entry interview, units 71-74)

While some family mediators regularly include lawyers in their mediation sessions, the dominant practice—and certainly the perception widely shared by CFL clients—is that mediation takes place with only the parties present, with lawyers consulting with them between or after sessions.[89] None of the CFL clients interviewed in the study appeared to be aware that they might work with a mediator along with their lawyers. It is possible, of course, that some CFL clients might consider this approach prohibitively expensive, but it might, in fact, be no more expensive than a CFL team model.

It is difficult to know to what extent these reasons for preferring CFL to mediation were suggested to these clients by their lawyers, and to what extent they developed them independently, but there was significant consistency on this point. There was also widespread anticipation among these clients that they would be better emotionally protected in CFL than in mediation. In the words of one client, "Mediation felt like a lonely process." (Case 13, client 1, entry interview, unit 15) One client stated this explicitly by saying, "I felt the need to have [R.] [her lawyer] there. I needed her to do the talking because I couldn't. With mediation, my husband would have bulldozed me. With [R.] there, I didn't feel as intimidated." (Site visit, client 8) These clients clearly felt more comfortable with a personal advocate who could participate with them in the process, rather than standing outside as a consulting attorney.

A third group of clients was unable to tell us why they had chosen collaborative law over mediation. These CFL clients apparently knew little or nothing at all about the possibility of mediation as an alternative to collaborative law. A few appeared to have formed the view that their CFL lawyers were in effect mediating the case:

Q: Did you think about mediation as an alternative?
A: No. They [the lawyers] talk about it very briefly, but it was sort of like, "We're meeting and we're going through these issues, but we're mediating, we're here…as facilitators to help and to give you individual advice." Case 3, client 2, entry interview, units 464-466

It is clear that many CFL clients' impressions of family mediation are entirely, or primarily, formed by the information given to them by their lawyers. What, then, are CFL lawyers saying about family mediation?

C. What Collaborative Lawyers Say About Family Mediation

CFL lawyers are highly, and genuinely, committed to collaboration as a premier dispute resolution process for divorce, and it is natural that they promote its use to their clients. There is a widespread view among CFL lawyers that whereas mediation is a constructive process for some high-functioning, self-confident and articulate clients, CFL is appropriate for a much wider range of clients and levels of conflict. In the words of one lawyer, "CFL can work for anyone, short of someone who is really out to destroy the process." (Site visit, lawyer 13) In the model of mediation that these lawyers describe, the only role played by the lawyer is the part of a consulting attorney, and there is no discussion of a mediation alternative in which attorneys would participate directly or be otherwise involved in the negotiations.[90] CFL lawyers identify similar weaknesses in this model to those articulated by, and perhaps suggested to, their clients. One is that the parties lose the direct assistance and support of their lawyers in mediation, whereas in collaborative law, counsel can play this role throughout. Because of the lack of lawyer involvement in mediation, there are often references to it as an incomplete process.

There are two aspects to this critique. One is the claim that the real value lawyers can bring to the negotiation process is limited by the structure of mediation. Many CFL lawyers believe they bring important coaching and facilitation skills to the process of negotiation. For them, this input completes the process and enables collaborative law to meet client needs in a way that mediation often does not. For example, one lawyer stated that, "People sometimes come to mediation with goodwill but not the skills—the coaches and the lawyers provide them with the skills they need." (Case 8, lawyer 1, entry interview, units 5-6) The second aspect of the CFL critique of mediation is that the structure of much family mediation forces lawyers into playing a highly unconstructive role. Lawyers are removed from the important moments of grace that take place inside mediation. (Site visit, lawyer 39) When lawyers are involved only in reviewing the outcomes of mediation, they play the part of a paid sniper. (Site visit, lawyer 39) One lawyer described preparing a client for mediation as follows:

I'm more distrustful of the other lawyer when it's a mediation model…I know, even when I was sending clients to mediation, I'd prepare them for the mediation in much more of a positional way, even though mediation is not supposed to be positional.
Case 4, lawyer 1, entry interview, unit 557

CFL lawyers also argue that bringing lawyers in at the end of the process to assess the legal aspects of an agreement inevitably removes any sense of responsibility from the lawyer for the success of the process. In the words of one CFL lawyer, who is also an experienced family mediator, "Mediation can be wonderful … it can create hope and a vision for the future. But the problem with mediation is that it doesn't get the lawyer piece under control. Attorneys get involved and things slide downhill after that." (Case 16, lawyer 1, entry interview, units 4-5) Getting "the lawyer piece under control" means including lawyers directly in the discussions (this lawyer-mediator did include lawyers in her mediations), as well as giving them a strong sense of ownership and responsibility in the process.[91]

Evidently, the strength with which collaborative lawyers offer mediation as an alternative to CFL varies widely. When asked, virtually all CFL lawyers say they explain mediation to their clients, but client comprehension seems to vary. Furthermore, it is clear that CFL lawyers prefer, and therefore promote, the collaborative process. One lawyer stated that she still regards mediation "as a first resort, not a last resort." (Site visit, lawyer 2) However, this is an unusual view among CFL lawyers. Some lawyers candidly acknowledge that they do not really think about mediation any longer as an alternative. Occasionally, this is articulated in competitive terms, where the speaker anticipates collaborative processes eventually taking over mediation in a particular centre. More generally, some CFL lawyers appear to see little use for mediation, believing collaborative law to be a superior process in every respect.

Some CFL lawyers, when pressed, will acknowledge that they can see a possible use for a mediator in collaborative cases that reach an impasse; interestingly, the most common example given is where issues between the lawyers need resolving. Pauline Tesler has recently written about the potential usefulness of a mediator in a CFL case where that case has reached an impasse or the negotiations are otherwise bogged down.[92] Some CFL lawyers appear to understand mediators' added value as limited to their non-partisan status. For example, one very experienced CFL lawyer equated adding a single expert-advisor to the collaborative team (for example, a child development specialist) with using a mediator, just without the same label. (Site visit, lawyer 39) While some CFL lawyers have had significant experience with mediation, others may have limited understanding of the role that a mediator might play. For example, I have heard no suggestion by any CFL lawyer that a mediator might be useful in an intensely emotional, high-conflict case.[93] Equally, there appears to be little recognition of the facilitation skills that mediators can bring to a meeting. CFL lawyers believe that whatever a mediator can do, a CFL lawyer can do at least as well, if not better. None of the cases included in the study used the additional services of a mediator.

It seems likely that some of the motivation for the development of collaborative law comes from what some experts describe as "the new threat to lawyers' hegemony posed by mediation."[94] Asked whether CFL is a means for family lawyers to take back control over mediation—which has often excluded them and minimized their role—CFL lawyers are understandably reluctant to explicitly acknowledge this. However, a number of CFL lawyers do explain their interest in collaborative law as deriving from a disappointment in the earlier promise of mediation, and a desire to actually use skills they learned in mediation training programs, perhaps as much as a decade earlier. Generally, non-lawyer mediators appear to display a higher level of anxiety about CFL than CFL lawyers do about mediation. However, this difference is probably no more than a reflection of the relative professional power of the two groups.

There are signs that the CFL movement is beginning to take seriously concerns about the movement's "sibling rivalry" with mediation, and efforts to build better communication and relationships are under way.[95] Hopefully, these efforts will prevent an unnecessary and unhelpful schism between two closely related fields that can and should support and promote one another.


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