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

4. THE NEGOTIATION EXPERIENCE IN CFL

A. The Structure of Negotiations in CFL

The central hypothesis of CFL is that by removing the potential to litigate a case, the nature of negotiations shifts toward settlement. Without the potential of litigation in the background, lawyers will take different steps and adopt different strategies for negotiation. For example, there will be less paperwork and no need to prepare affidavits and other statements—which, because of their impersonal formality, are often seen as offensive by one or the other side. In anticipating the negotiations, counsel will not need to paper the file as they would when approaching litigation. The disqualification agreement (DA) means that counsel is strongly motivated to settle the case in negotiations. After a certain point, there are strong disincentives for the client to withdraw, as well. One of the earliest proponents of CFL and the use of the DA argued that it changes the context for negotiations, offering "a way to approach a person with whom one has a perceived conflict with a request for an honest and detailed examination of the problem in a way that also offer[s] an absolute and irrevocable commitment to do so in a non-adversarial manner."[40]

A central issue for this study is the difference between negotiations in a CFL case and traditional lawyer-to-lawyer bargaining,[41] including cases where a lawyer is explicitly committed to a cooperative strategy. Research on lawyer-to-lawyer negotiations has identified a number of consistent characteristics of such negotiations, such as the following: arm's length communication (either by fax, letter or phone, as opposed to face-to-face); exclusion of clients from direct participation; a triggering legal event, such as a pre-trial or settlement conference; and a highly positional and "value-claiming" approach.[42] Another important factor is the historical relationship between counsel, which, at its worst, may drive highly competitive personal relationships, resulting in protracted and inefficient negotiations.

Four-way meetings, which are the focal point of the CFL process, appear to eliminate the first two of these characteristics. The four-ways ensure that most, if not all, discussions are conducted face to face, with clients present. This is a critical element of the CFL process. One lawyer contrasts this approach with traditional lawyer-to-lawyer negotiation:

Where parties use lawyers instead of talking together, there is much more opportunity for polarization and mistrust growing. Case 16, lawyer 1, exit interview, unit 30‑31

The perceived benefits of including clients in four-ways mirror what lawyers and clients have said about being present at mediation. For example,

[M]andatory mediation would bring the client into the process—they would have to participate in it. And, often times, the dynamics of mediation will change how people behave, once they start hearing the reality of their case from other people… Toronto-12: text units 437-449 [43]

They don't have to talk legalese or anything like that—they just talk about whatever it is that the case is about—and I find that they can often be their best advocate on their own behalf at the mediation. Ottawa-4: text units 84-84 [44]

The third characteristic of lawyer-to-lawyer negotiation is the need to wait for a triggering event, such as a court date. Since four-way meetings begin right after the initial client-counsel meeting, counsel need not wait for a triggering event.

While the first three structural differences between CFL and conventional negotiation can be readily identified, and appear to be followed faithfully in CFL practice, it is more difficult to establish how far the fourth characteristic—the positional, value-claiming posture of negotiations—is altered by the CFL process.

CFL lawyers who participated in the study were constantly asked to assess the extent to which integrative, problem-solving approaches were being used in collaborative negotiations, and how often collaborative lawyers fell back on positional negotiation styles. While CFL lawyers clearly had an interest in emphasizing the problem-solving quality of CFL bargaining, many offered some insightful, and frank, appraisals of the differences between CFL and traditional bargaining in a litigated case. Some were clearly surprised at the differences they found once they began practising CFL:

[At first] I was sceptical. I felt I had done a good job negotiating for clients for a decade already; I didn't really think there was anything in particular that I could learn or needed to learn. So to be quite honest, I wasn't sure what CFL was offering. I actually find it quite different…you don't realize how poorly people communicate with each other. And I didn't realize it and had negotiated for years, and I didn't realize how poorly people negotiate. Case 1, lawyer 1, entry interview, units 95-97, 112-114

There appears to be widespread agreement that CFL reduces the posturing and gamesmanship of traditional lawyer-to-lawyer negotiation, including highly inflated and lowball opening proposals. As one lawyer said, "One of the big differences is the conscious avoidance of…adopting the extremes." (Case 3, lawyer 2, entry interview, unit 46) The explanations for this difference are partly ideological. The CFL lawyers want this new process to succeed and therefore they must "walk the talk" in actual negotiations. The explanations are also partly structural. Whereas most lawyer-to-lawyer negotiations begin with a ritual of unrealistic opening offers,[45] the first one to three four-ways in CFL are generally occupied with reviewing the commitments of the participation agreement, followed by a process of information gathering. Usually no proposals are tabled until these stages are completed, often to the frustration of the clients. After these initial meetings, there is a much clearer sense of what each party wants and expects than when opening shots are fired. There is also awareness among CFL lawyers that they are responsible for modelling cooperative behaviour to their clients. Unlike conventional lawyer-to-lawyer negotiations (but similar to client-inclusive mediation), clients are observing counsel's negotiating behaviour first hand, minute to minute in a CFL four-way.

There is also a purely pragmatic rationale for avoiding the ritual dance of inflated openings. Where the goal is settlement rather than winning at trial, the use of opening offers changes significantly. For example,

The difference is in a traditional litigation file, if I thought my client's claim was worth $50,000, I'd ask for $100,000. If the other lawyer thought the claim was worth $30,000, they would say it's worth zero. In a CFL file, I have the confidence to say to my client "Let's not talk about the 50 to 100, it's a waste of your time, it's not going to happen. Let's concentrate on the 30 to 50 that we all can agree on and make some creative options that suit you both within that 30 to 50." Case 4, lawyer 1, entry interview, units 164-167

Many CFL lawyers point out that positional bargaining simply does not work in CFL. As one lawyer put it, "The reason why we don't do positional bargaining is it doesn't work—not that it's morally reprehensible, but that it doesn't work in a consensual process." (Case 10, lawyer 1, entry interview, unit 185)

There is, as one might expect, relatively little reporting by CFL lawyers of a return to a positional dynamic in the course of negotiations. Some CFL lawyers are prepared to acknowledge that this does occur where counsel for the other side is new to CFL, sometimes requiring them to educate these lawyers on how to comport themselves in a more cooperative fashion. A few would say that the style of negotiation in cases where only one lawyer is experienced in the CFL process is not that different from a traditional lawyer-to-lawyer negotiation, "mostly lawyer-talk, just more polite." (Case 8, lawyer 1, entry interview, unit 32) Others more candidly admit to occasionally reasserting a somewhat positional tactic themselves. For example, the lawyer quoted above went on to describe how she might occasionally up the stakes, even in a CFL case, if cooperation was not forthcoming from the other side:[46]

In a cooperative file, I would constantly be pushing the 50 to 100—not as a threat, but that's the negotiation, right—"If you won't even agree to the 50 then it could be 100." In a cooperative file, I would always be talking about the 50 to 100, throwing it in wherever I thought it would kind of catch someone off guard. Case 4, lawyer 1, entry interview, units 167-174

Another experienced CFL lawyer adds this reflection: "Sometimes we catch ourselves. It's hard not to [bargain positionally], because we have done it for a long time. We are used to it. That's what we learned at law school from day one. It's really hard work." (Field visit, lawyer 3)

Some CFL lawyers also acknowledge that there are particular stages in a CFL case where CFL lawyers take positions, especially in high-conflict cases that reach an impasse. Impasses or temporary barriers to progress may also appear in moderate conflict cases once information gathering is complete and concrete proposals begin to appear. At this point, some lawyers may find themselves returning to their familiar strategies of developing proposals and offers. This may be a necessary strategy to move the negotiations along and can still occur in a cooperative framework. However, at this stage, the dynamics of the negotiation may look similar to a conventional lawyer-to-lawyer negotiation:

  • Q: Is what happens in CFL four-ways often a throwback to those positional negotiations?
  • A: I think so…I think you just kind of end up doing that sometimes, and you can't really help yourself.
  • Q: So it's not that uncommon?
  • A: Well, because I think it's easy to do.
  • Q: So there are trade-offs? There's offer and counter-offer?
  • A: I think you do end up doing that. I'm not sure if there's a counter-offer all the time, but it's mostly [a] "how does this sound" sort of thing. But that's where they always break down, after you get through the two easy meetings[47] where you've got all the rules for them, I think that's where you do break down. Either they start negotiating outside of the process or you start writing out proposals. Case 11, lawyer 1, entry interview, units 584-596

Many CFL lawyers agree that traditional "split-the-difference" distributive bargaining will sometimes occur during four-way negotiations—usually at the endgame. However, the parties may be much closer and the differences relatively minimal by this stage. Almost all negotiations contain some distributive element, and CFL negotiations are no exception. One CFL lawyer noted that even the final split-the-difference negotiation feels quite different when it is undertaken by two clients passing the calculator back and forth across the table. (Field visit, lawyer 40, entry interview, units 584-596). On the other hand, another client, frustrated by a longstanding impasse, thought this approach represented a failure of the collaborative process, saying, "If we are going to slice and dice, let's just go to litigation." (Case 8, client 2, mid-point interview, unit 40)

B. Sustaining a Cooperative Ideology in Bargaining

CFL lawyers talk about a "paradigm shift" in thinking about dispute resolution that enables them to engage in cooperative negotiations. In a recent book, Pauline Tesler describes this in terms of a transformation of personal and professional norms:

[T]he four dimensions of the paradigm shift includes both inner and outer transformations…transformations of the lawyer's inner perceptions of who he or she is and what he or she is doing and transformations of objective, visible behaviors toward the clients and professionals involved in the collaborative case.[48]

A number of CFL lawyers say CFL has affected their whole approach to the practice of law, and that it has even affected their personal life. The extent of the internalization of the principles of collaboration and problem-solving was described by one lawyer in the following terms: "I would say it's something that I find now that I can't turn on or off …It's just basically on now. In fact, I even find from a personal standpoint even the way that I interrelate with my spouse and my family has changed because of it." (Case 1, lawyer 1, entry interview, units 174-176)

The strong ideological commitment to cooperative negotiation within the CFL model has a significant impact on the bargaining environment. The commitment is strengthened by the "club" culture of CFL groups as well as by their sense of shared values. The CFL group becomes a critical "community of practice" for individual CFL lawyers, and it is highly influential in shaping and maintaining informal practice norms and behaviours.[49] In their study of divorce lawyers, Lynn Mather, Craig McEwen and Richard Mainman further argue that any one lawyer often belongs to several different communities of practice, each with its own, perhaps conflicting, norms for negotiation behaviour and strategies.[50] CFL may be able to reduce some of this ambiguity by establishing clear norms and procedures for CFL lawyers to follow in their dealings with one another. Belonging to a CFL community of practice demands that the CFL lawyer place this allegiance first among competing demands. A CFL lawyer who is deemed to have taken an unnecessarily adversarial approach to negotiations will thus be monitored by his or her CFL community. This may take place informally. For example, one attorney stated, "[T]he lawyers watch one another and we will catch ourselves doing [positional bargaining]." (Field visit, lawyer 11, units 174-176) It also may gradually take on a more formal, regulatory character. For example, where there is a real concern over the behaviour of a group member who continues to practice in a highly adversarial manner, discussions are starting to take place within CFL groups over developing expulsion (or discretionary renewal) procedures.

The ideological component of a commitment to a different style of bargaining has ramifications beyond simply changing the strategies and goals lawyers use in negotiation. Whereas regard for the other side's interests (see also the discussion in the next section) and sustained efforts to analyze interests and options before rushing to a position may be strategic manifestations of an ideology of cooperation or paradigm shift, as some CFL lawyers like to describe it, there are also personal normative manifestations of the same beliefs. These might be reflected in an emphasis on whole family solutions, on a particular model of co-parenting as the most stabilizing, or in the waiving of certain financial entitlements in order to create harmony and certainty. While rights-based bargaining explicitly describes the normative basis for a position, interest-based bargaining disguises underlying normative assumptions. Creating a set of outcomes for divorce based on interests is no less a normative judgment than adopting a rights-based argument.

One of the ways in which ideology overlies strategy in CFL negotiations is seen in the attitudes toward expressing emotions in four-way meetings.

C. The Place of Emotions in CFL Negotiations

A number of clients commented that their lawyers seemed to underestimate the level of emotionality that would inevitably colour the negotiation process between themselves and their spouse. While lawyers acknowledge that the process will be emotional and sometimes upsetting, when raw emotion actually appears in four-ways, it is often discouraged and effectively pushed aside. The response of some lawyers to an emotional, perhaps angry, interaction between the clients is to remind them of their obligation to remain cooperative and focussed on the best interests of the family—not something that some clients find particularly helpful when they are experiencing anger, hurt or distress. Sometimes, clients experience this as denial of their feelings and an attempt to impose a false harmony n the situation. One client described her experience of responding to what felt like a threat by her husband and his lawyer as follows:

And I said no, that's ridiculous, you know, that doesn't make any sense—and he [her husband] kept pushing me about it. And that's when we had that confrontation at the last meeting, where I felt he was threatening me. When I said that his lawyer jumped on me, he said, "Well, if you don't take it—if you don't agree to this now—I'm not going to agree to something else you want later," When I said that was a threat, both lawyers jumped at me and said, "Oh, no, no, no, you mustn't see it as a threat." Oh, yeah, you're not supposed to—I was immediately jumped on by both lawyers for even using that word—but this is the ultimate reality because it was a threat. I mean, it was clear that's what he was trying to bully me into—agreeing to something that I didn't want to do. Case 11, client 1, mid-point interview, units 38-39

Later in the same interview, she continues,

My lawyer took me out of the four-way and told me, "You mustn't be so hostile." The lawyers are trying to be so even about it but, damn it, I feel angry in there. What do they expect? Case 11, client 1, mid-point interview units 348-350

This same client made this comment on the process:

I think this part of the process has a Pollyanna quality to it. Everybody is being nice to each other, everybody should be open and honest and completely up front and everybody should be sharing. And, you know, that's nice, except that this is by nature an antagonistic process. There's no way around that." Case 11, client 1, mid-point interview, unit 188

Some clients pointed out that while lawyers on the one hand set up the conditions for an open and frank—and often necessarily emotional—exchange in the four-way, they may have been unprepared and poorly equipped to deal with the consequences. For example,

Emotionally, it is very difficult. The real danger is that they deal with people in an emotionally dangerous time…The lawyers are encouraging the expression of emotions. So we both do. But they are not psychologists! They encourage the expression of emotion but they don't know how to deal with it. Field visit, client 7

The lawyers seemed shocked that the clients had emotional baggage—but this was a [very long] marriage. What did they expect? Case 7, client 1, entry interview, units 57-58

In light of these comments, CFL is subject to the criticism that this approach is not realistic about the emotional burden clients carry during divorce. It is very important to avoid the criticism that CFL imposes an implicit "harmony ideology" on clients[51] by only paying lip service to emotional needs, rather than offering real support and effective process management. Certainly, CFL lawyers would not wish to be accused of this, since their adoption of the collaborative process comes in part from a desire to humanize the process of divorce. Some are aware of this problem. The following statement seems realistic:

Lawyers need to remember that they are working with people whose communication has already broken down. To expect them to suddenly do better, because two nice lawyers are there, is expecting a lot. Case 7, lawyer 1, exit interview, units 47-48

If CFL lawyers are to moderate discussions between angry and hurt people, they need to make sure they have the skills to handle the potential consequences. It may be important for CFL training to prepare lawyers to deal with high conflict and highly charged interactions, both practically and conceptually. Their skills should include identifying areas of possible danger for one or both spouses. One of the most worrying comments in the whole study was a statement made by a client who was still residing with her spouse. She told us, "I could hardly say in the four-way with [X] there, ‘I'm scared to go home tonight.’" (Case 5, client 1, exit interview, unit 57)

The assertion that CFL lawyers impose a "harmony agenda," and therefore prefer and promote certain types of outcome—ones that reduce or avoid further conflict—has the greatest potential to undermine CFL. In order to avoid this criticism, CFL lawyers need to be highly self-critical and aware of their own biases toward post-divorce family outcomes. They need to play their supportive, advocacy role in a way that reflects what we have learned over decades about the impact of post-divorce parenting on children—in relation to continued contact with both parents and so on—but without imposing a set of beliefs or values on their clients. This is a difficult balance to strike and one that challenges all lawyers and others who work in family services. However, if CFL is to develop integrity as a process choice for family transitions—particularly as a process that trumpets the autonomous decision-making role of the client—it is critical to remove the taint of ideology from it at this early stage.

D. The Role of Legal Advice in Negotiations

We impose interests on clients because we feel it's their legal right.
Field visit, lawyer 18

The above statement reflects the sometimes-ambiguous relationship between what clients need and want, and the entitlements the legal system offers them. It is hardly surprising that, in the effort to realign the values of family lawyering to a cooperative and collaborative model, lawyers are struggling with the impact of their legal advice and the shadow of the law generally. This struggle shows up in two major areas of this research: the way legal advice is given and used; and, comparisons between collaboratively negotiated outcomes and those achievable using more traditional, rights-based processes (see the discussion in section 7 of this report).

There is a wide variation in how much legal advice lawyers give their CFL clients, and how specific this advice is to the facts of the particular case. In this area, the three "ideal types" of CFL lawyer (the Cooperative Advisor, the Lawyer as Friend and the Team Player) described earlier in this report clearly influence the approach the lawyer will take. Clients themselves often do not have a clear idea of how much or how little legal advice they will receive and some are less satisfied than others with this aspect of collaborative legal services.

Some lawyers state that their approach to offering initial advice, and the legal research that backs up this advice, is relatively unchanged in a CFL model. They still begin much as they would do with regular litigation files, appraising the possible legal issues and outcomes (ideal type (1)). These lawyers tend to regard their colleagues who provide less in the way of traditional legal advice as retreating from an important aspect of their role. (Case 7, lawyer 2, entry interview, unit 51)

Others say that their approach is different from the very first meeting:

You can't compare a settlement that is the end point of a litigation matrix process with a process in which the sole agenda is settlement, and everybody is around a table from day one and the responsibilities are clearly defined—that the clients need to refine positions into interests, state them clearly and then be responsible for getting from here to there alongside the lawyers. Case 10, lawyer 1, entry interview, unit 118

This idea is illustrated by one lawyer's account of the focus of a preparatory meeting with the client:

One of the most obvious [differences] right off the bat is I don't sit there and go through the three inches of information that they bring me, and I'm not going to do that. I am going to go into the meeting and look at it there and I always joke and say, "Yeah, you don't want to pay me twice to look at that," and everyone goes, "Yeah, ha ha ha." …[B]ecause we're going to look at it anyway…in the meeting. I don't need to go through and kind of come up with a plan or an idea of how we should approach it beforehand. And I kind of like that, because then it doesn't give me any temptation to come up with a plan or an idea before. In a way, the less I know, the cleaner I can make my negotiations, too. [emphasis added] Case 4, lawyer 2, entry interview, unit 174

Most CFL lawyers regard the first meeting as a preparation for the first four-way and a general introduction to the process of CFL. Some lawyers, however, also provide legal advice and analysis in that first meeting, or take information from the client that will allow them to offer that type of advice at a future meeting. Those lawyers who are less inclined to give legal advice in the first meeting have often substituted a review of the CFL process for any other type of discussion:

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 lawyer was describing an initial meeting in which prior legal research and analysis is limited to a generalist picture, rather than focussing on the specifics of this client's case. So what happens, this lawyer was asked, when your client wants more specific information in that first interview about his or her legal rights and responsibilities?

Sometimes, they'll want to know more specifics, such as, "How much child support should I be paying or should I get?" and those types of things. So you'll talk about the guidelines and those types of things…And you might say, "Well, how much do you make?" Then they start—soon as you start into that, then you have to kind of back out of it and say, "Okay, well, to let you know, in the collaborative law process, everything is out in the open." And we can say that there's guidelines and that there's this law and that, but you two can make whatever decision you want, as long as you both know what you're doing and have information…[Y]ou know, if you decided to give away all your property and give three-quarters of your paycheque away, you could do that if you wanted. I would probably tell you that, legally, the court probably wouldn't order that, but you could do that." Case 4, lawyer 2, entry interview, unit 207

Some lawyers see a tension between legal advice and collaborative bargaining. One describes the impact of rights talk as contamination :

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. Case 16, lawyer 2, entry interview, unit 17

Another lawyer described her movement away from providing too much legal advice in terms of her experience of seeing how legal principles tended to narrow the viable options in the client's mind:

The black letter law impacts too harshly, and the clients think too black and white—this way, the clients come up with more creative solutions. Case 15, lawyer 2, mid-point interview, unit 11

How does the minimalist or generalist approach to providing legal advice sit with clients? Several lawyers commented that it was more common for their clients to ask for advice on what was fair than to ask for clarification of their legal rights and responsibilities.[52] This seemed extremely likely as negotiations progressed and as the touchstone of legal positions gave way to the search for a mutually acceptable solution. However, some clients expressed frustration with not getting clear and specific legal advice at times when they felt they needed it—for example, when there appeared to be an impasse in the negotiations, or when they perceived the other spouse as being unreasonable and unrealistic. They complained that when they asked questions about the law, their lawyers avoided these or were evasive in their answers. (Case 2, lawyer 2, entry interview, units 228-230; Case 6, client 1, exit interview, units 59-71)

Several clients expressed a desire at certain points for their lawyer to be stronger with the other side about the limits of their entitlement. For example, one client said he was disappointed n his lawyer for not "putting to [his spouse] that we have a strong legal case." He went on, "I don't need touchy feely, I need reality here…" (Case 8, client 2, mid interview, units 18-19). A therapist quoted her client as saying to her, "I don't want to pay my lawyer to do that therapy there. I want my lawyer to give legal advice, [so that I] know my rights." (Other collaborative professional, interview 20, units 60-62)

Where clients felt that their lawyer was replacing their legal advice role with a quasi-therapeutic one, there was sometimes resistance. For example,

I can do this with a counsellor for way less. I don't expect to get the counselling aspect from the lawyer, but the nitty-gritty of the law—what is fair for each to demand. Those are the questions you expect the lawyer to answer. Case 6, client 1, exit interview, units 68-70

This raises some important questions about the threshold definition of "legal services" in terms of providing legal advice, as well as the reasonable expectations of a client who retains counsel. One client who was generally satisfied with the CFL process commented in the exit interview that he would advise anyone going into CFL to ensure that they asked for and got advice on the legal principles, rather than assuming that this would be forthcoming. (Case 13, client 2, exit interview, unit 15)

The blurring of the traditional parameters of the lawyer's role—to provide expert legal advice rather than therapy—is a controversial issue in CFL. It also raises questions about inter-professional collaboration (see the further discussion in section 6 of this report).

E. The Impact of the Disqualification Agreement

A crucial and as-yet unanswered question about negotiations in the CFL model is whether the use of a disqualification agreement (DA) to ensure the commitment of both lawyer and client to a cooperative negotiation process is essential to produce the cooperative characteristics described above. Can the same results be achieved without a formal DA?[53] For whose benefit—lawyer's or client's—is the formal requirement of a DA? The effect of the DA is to place the litigation cookie jar in a locked cupboard—so that if one party changes his mind about eschewing cookies, the key to the cupboard is rendered unobtainable (destroyed, buried in a secret place) by the requirement that counsel must withdraw from the case if it moves into litigation. Clients are sometimes mystified by the lengths to which their lawyers believe they must go to remove the possibility of litigation, and wonder why counsel could not simply be trusted to use their best judgment in this eventuality. Other clients clearly understand the commitment they are making to the CFL process and the risks this involves. For example, one client commented, "Signing the four-way contract was a little scary. I didn't want to start with another lawyer. But it made us realize it would cost a lot more if we didn't settle it." (Site visit, client 2)

The potential benefits of the DA include a shared and equal commitment; a known constraint on future choices (creating certainty, which can help participants avoid the prisoner's dilemma); the creation of a container for confidential, without prejudice negotiations; the creation of some pressure to stay the course; and perhaps, over the long term, the development of a cadre of negotiation specialists (as discussed later in this section). However, some of these vaunted benefits may also have downsides. For example, the pressure to stay in the process may become extreme and inappropriate. There is a risk of creating an entrapment similar to that created by legal fees in traditional litigation. One frustrated CFL client reflected that, after an estimated $24,000 in professional fees and nine months of negotiations—with little accomplished—it was difficult to switch tracks and litigate. "Now that we're this far, it's hard to leave." (Case 8, client 2, mid-point interview, unit 43)

There are alternatives to the DA—the question is whether these would achieve the same results. They include a formal "cooperation protocol," such as that promoted by the CPR;[54] a contractually agreed, time-limited period of negotiation before litigation; or an agreed problem-solving negotiation protocol.[55] To date, evidence suggests that the collaborative process fosters a spirit of openness, cooperation and commitment to finding a solution that is qualitatively different, at least in many cases, from conventional lawyer-to-lawyer negotiations—even those undertaken with a cooperative spirit. But as one CFL client who concluded an agreement collaboratively—only to have her spouse apply to the court for a variation a few weeks later—pointed out, this is not conclusive of the need for a DA. Instead, it may point to the need to agree to a particular period of negotiation outside litigation, rather than to an absolute commitment not to litigate:

I don't quite understand the need for such a strong bias against the CFL attorney representing one in the case of later litigation. I understand having this clause in the agreement prevents any one of the parties to rush too quickly to litigate (or threaten to during the CFL process) and to commit to the collaborative process, but there must be some point at which all parties can recognize the CFL process may not continue. After the CFL process has failed, I don't quite understand why the attorneys cannot then become the litigators. It becomes just another type of case and I would think having all the background information and knowing the other parties would make for a smoother litigation. Case 12, client 1, mid-point interview, units 24-26

One of the most significant results of the DA may be that it enables the creation of a layer of legal professionals whose special expertise is negotiation.[56] Further research should examine how far this level of specialization is critical to settlement-only lawyering.


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