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

11. CONCLUSIONS

The CFL movement has made significant progress in taking on an entrenched culture of arm's-length and often adversarial bargaining. Efforts to change the competitive culture of legal negotiation via procedural reforms and via collegial or institutional commitments to cooperation have achieved only partial success. CFL challenges the conventional parameters of the roles played in conflict resolution by lawyers and by clients themselves, and integrates the expertise of other professionals. It claims to offer a more dignified and constructive alternative to lawyer-to-lawyer itigotiation ;[96] to empower clients to construct their own best endgames to a marriage; and to enable lawyers to align their personal and professional goals in the practice of law. How successful, then, is CFL in reaching these goals?

A. The Achievements of Collaborative Family Law

This study demonstrates that, to a large extent, CFL is fulfilling these promises, but not without problems. The clearest evidence of success relates to the satisfaction—joy even—of family lawyers who have embraced collaborative law as an alternative to litigation. The study found that the primary motivator for lawyers embracing CFL was personal value realignment—in other words, finding a way to practice law that fit better with their beliefs and values than the traditional litigation model did. Further significant motivations included the desire to provide better client service and to find a better alternative to family mediation.

There are also sufficient data in this study to support the assertion that collaborative four-ways are able to largely avoid the reactive-defensive bargaining dynamic of the prisoner's dilemma; to engender and to sustain a climate of cooperative negotiation; and to produce results that are both fair within a legal standard and satisfactory to the parties. 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. At the same time, there is recognition that positional bargaining does still sometimes occur, especially when there is an impasse, and that this is a habit that is difficult for many experienced lawyers to break. However, when split-the-difference bargaining does occur, it is in the light of more information—and a more constructive spirit—than one would often see in traditional lawyer-to-lawyer negotiation.

The strong ideological commitment to cooperative negotiation within the CFL model has a significant impact on the bargaining environment. This impact is strengthened by the clubculture of CFL groups, as well as by their sense of shared values. The CFL groups are investing heavily in the development of a cooperative reputation, and any adversarial negotiation behaviour by their members threatens to taint that. Aside from their philosophical commitment to cooperative bargaining, CFL lawyers also point to pragmatic considerations—when agreement between lawyers and both clients is necessary to settle, positional bargaining simply does not work.

There is no evidence from this study that collaborative cases result in weaker parties bargaining away their legal entitlements. The limited number of cases followed in this study that reached a final resolution (11) matched or exceeded legal entitlements in most respects. Many outcomes included value-added components, such as detailed and creative plans for continuing the involvement of both parents in parenting decisions and day-to-day relationships, different formats for paying financial support and enhanced communication between the separating parties (especially important if they were to continue to share parenting responsibilities). Further, the collaborative process allows for the development of trial outcomes in a way that litigation rarely affords.

A larger pool of completed cases is necessary to test this tentative conclusion, which is based on a small sample. Continued vigilance is important to ensure that CFL does not become a forum in which weaker parties consistently do worse than they would in a formally regulated setting. In particular, adequate screening is important to ensure that vulnerable parties do not give up entitlements in order to achieve personal safety.

Another area that requires further study, possibly with a control group, is the impact of the disqualification agreement (DA) on the dynamics of each file and on its negotiation process in particular. Data gathered by this study, where every case had a DA, suggest 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 the atmosphere created by conventional lawyer-to-lawyer negotiations—even those undertaken with a cooperative spirit. However, it is difficult to say whether this finding supports an absolute need for a DA, rather than for an agreement to commit to a particular period of negotiation outside litigation. Most of the lawyers in this study argued that without a DA they would not have been able to negotiate in the way that they did. However, this proposition was not directly tested by this research study.

There are some clear downsides to the DA, including a sense of entrapment for some clients after they have spent significant time and money on the collaborative process. One of the most significant and interesting results of the DA may be the creation of a layer of legal professionals whose special expertise is negotiation. Further research should examine to what extent this level of specialization is a critical enabler of settlement-only lawyering.

Client satisfaction with CFL is generally high. Many clients emerge from the traumatic process of divorce with the clear sense that the collaborative process has enabled them to behave honourably toward their ex-spouse and their family. Most also feel positive—some very positive—about their relationship with their lawyer. Clients who have used other collaborative professionals are generally—although not always—positive about the contribution that those people have made. The team model can offer a depth and range of client services that traditional legal practice cannot match, and for those clients who can afford it and who see the value of a comprehensive transition plan for their family in its new form, the team model offers enormous potential.

The data from this study amply demonstrate the impact of CFL and its significant achievements to date. However, many challenges remain if CFL is to become recognized and accepted as a process with an independent claim to integrity and effectiveness, instead of primarily being promoted as a more humane and dignified alternative to the bruising and distressing process of litigation.

B. Continuing Challenges for Collaborative Family Law

This study highlights a number of areas of concern that need to be kept under continuing scrutiny by collaborative practitioners and by governments that might provide institutional support for CFL.

i. Managing client expectations for a speedy and cost-effective process

Many clients come to CFL with high expectations regarding the speed and relative affordability of using CFL to secure a divorce. Although some lawyers are undoubtedly wiser than others in creating and managing expectations, the CFL movement should generally be cautious in making such claims and especially when using them as a basis for obtaining consent to participate in CFL. (See the discussion in section 8 of this report.) There is as yet no clear evidence—for example, via a study using a control group—that CFL cases are less expensive than traditional litigation-negotiation divorce files, although common sense suggests that they often must be. Indeed, some clients are disappointed at the eventual cost of the process—especially if negotiations proceed slowly or if the expertise of other professionals is added—having initially formed an unrealistic expectation of cost. CFL lawyers must be careful to clarify and manage these expectations. They should also recognize that clients' financial investment in a collaborative divorce may at some point begin to feel like pressure to stay in the process.

Without the external time pressures imposed by the court—pressures that many lawyers and clients recognize as often unhelpful and stressful—CFL lawyers need to look for alternate means of ensuring that a negotiation process proceeds at a pace that meets some minimal requirements of both parties. When faced with indecision or intransigence, clients may conclude that the CFL process is too open ended and waver in their commitment to the collaboration that CFL entails.

There is also a particular need to clarify issues of billing in team divorce cases to ensure that clients fully understand and consent to the cost of team members briefing one another on their work with the clients.

ii. Ensuring effective client advocacy

Whatever model of advocacy individual CFL lawyers offer their clients—and there are probably as many variations within CFL as there are within a traditional divorce practice—there is a need to provide clients with greater clarity about what they should expect at the outset. Important issues include the role played by collaborative lawyers in relation to the provision of legal advice; the strength of the relationship the lawyer envisages with her client vis-à-vis the rest of the collaborative team; whether the lawyer will offer the client private and privileged conversations; and, the therapeutic support role to be played by a mental health professional or offered in some form by the lawyer. The wide diversity of practice in relation to each of these issues has been detailed in this report. While it is not the report's intention to discourage such diversity, it is imperative that clients fully understand what they are committing to beyond the mechanics of the collaborative retainer process. The next stage in the evolution of CFL might be to offer collaborative clients choices between different approaches to collaborative practice, depending on what type and form of professional support they are seeking. This tactic would empower clients and reduce mismatches between client expectations and lawyer assumptions once the case is under way.

At the same time, collaborative lawyers need to set limits on the types of services they offer clients and the types of cases they are equipped to manage. There is a clear need for the use of more intense and demonstrably effective screening protocols to ensure that appropriate cases—rather than all cases—are guided toward CFL, and for particular care to be taken with cases that have the potential for abuse or intimidation. CFL could make a vulnerable client yet more vulnerable to an abusive spouse unless appropriate planning and safeguards are developed while the process is ongoing. In addition, collaborative lawyers are advised to assess carefully their own abilities to deal with particularly high-conflict cases without additional specialist expertise. There is a tendency to overemphasize process structure and to underemphasize the skills and techniques lawyers need to properly manage high-conflict cases, or cases that are at an impasse or stalled. In some of these cases, it may be inadvisable for lawyers to proceed without a commitment from their clients to incorporate the expertise of coaches into the team.

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 in post-divorce family outcomes. Playing into this criticism may be a misplaced assumption that rights-based negotiation is value based while interests-based bargaining is somehow neutral. Creating a set of outcomes for divorce based on interests rather than on legal rights is no less a normative judgment than is adopting a rights-based argument. While rights-based bargaining explicitly describes the normative basis for a position, interests-based bargaining disguises underlying normative assumptions. The dominant norm for collaborative lawyers is their commitment to constructive family transitions with a minimum of conflict and confrontation. This worthy goal may implicitly shape other decisions over parenting and financial arrangements that need to be transparent to the client and open for debate. Collaborative lawyers 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.

The study demonstrates that client motivations reflect a different set of priorities—reduced cost and speedier results—than those of their lawyers. While it is predictable that clients would adopt a more pragmatic approach to using CFL than would their lawyers—who prefer to describe loftier goals that, for some, border on an ideological commitment—this contrast underscores the concerns outlined in this report about the way lawyers and other collaborative practitioners experience CFL as ideology. Due to this contrast, there is the risk that CFL lawyers may assume an ideological commitment on the part of their clients that is not actually there, perhaps imposing their own motivations onto clients who are simply trying to get their divorce completed quickly and inexpensively. This approach is likely to create particular problems in cases that are acrimonious and require significant concessions on each side. CFL lawyers should be careful to be transparent with their clients about their values and goals, and to ensure that they do not paint an unrealistic picture of what is to come in their eagerness to promote CFL.

Collaborative practitioners should be encouraged to recognize the strength of, and the reasons for, their personal commitment to the collaborative resolution of family conflict. However, this personal commitment should be transparent to their clients without being imposed upon them. In contracting for a collaborative process, clients are not necessarily signing up to a collaborative ideology—this study has shown that the motivations of clients going through divorce tend to be more pragmatic than those of their lawyers. Beyond their procedural commitments, clients should be able to choose whether to embrace the values agenda of collaborative law, and lawyers should not assume their acquiescence. Lawyers must constantly remind themselves that it is difficult enough to negotiate a collaborative outcome to a broken relationship, without also requiring clients to become "poster children" for healthy family transitions. As one client pointed out, "It's a lot easier to do hierarchy decision making. It's much more familiar and comforting." (Site visit, client 11)

In redefining their role as advocates within a collaborative process, CFL practitioners find themselves in good company. Lawyers acting for clients in consensus-building processes from mediation to settlement conferences face similar challenges. The debate about effective client advocacy in a settlement-oriented model should continue as lawyers become increasingly sophisticated and familiar with these processes and exchange ideas, challenges and experiences.

iii. The team divorce model

The team model holds much promise (see the previous section), but it also faces many complex inter-professional issues, which will require the attention of the field in the next few years. These include clarifying the boundaries of the various professional roles, rationalizing billing practices and assessing the extent to which each team member really needs a full briefing on every aspect of the case as it proceeds. The team model may also benefit from the development of a team manager role.

iv. Professional and ethical issues

Numerous ethical issues identified by the study need widespread recognition. In particular, renewed efforts should be made to ensure that clients understand the implications of their choice of CFL in concrete rather than abstract terms. Outside a small group of experienced practitioners, the study has found little explicit acknowledgement and recognition of ethical issues among CFL lawyers. This finding should raise some concern, since the changed client consultation, negotiation and advocacy procedures required by CFL place lawyers in many new and unfamiliar situations where they must exercise their personal discretion over appropriate ethical behaviour, often without a set of clear precedents or personal experiences on which to draw.

A number of such issues relate to the management of a collaborative file. For instance, practitioners need to decide how to assess the initial suitability of divorce cases for CFL and to screen out cases where CFL might even be harmful (see the discussion in the previous section). There is also the challenge of ensuring the client gives informed consent to participating in CFL. In several case studies, it appeared that clients did not fully comprehend all the ramifications of the CFL commitment (for example, the time it might take to negotiate an agreement, the commitment to finding a mutually acceptable solution and the requirement for full voluntary disclosure). Lawyers must also determine how and when to advise clients to withdraw from the collaborative process when there appears to be no or little chance of a resolution via negotiation. Another possible ethical issue is the need to ensure appropriate professional relationships between lawyers on a file, especially where CFL networks are small and lawyers work together regularly.

v. The relationship to family mediation and other conflict resolution practices

The relationship between CFL and other dispute resolution processes—in particular, family mediation—is a vexatious one that deserves further attention. In order to offer a complete range of services to family law clients, lawyers should consider establishing both mediation and collaborative law as clear options for family clients, with clients making the final decision. Lawyers are entitled to their (stated) preferences but owe their clients the choice. There is more than sufficient family conflict to accommodate both approaches. Moreover, further thought should be given to integrating the work of a third-party mediator into a collaborative process in the case of an impasse. Flexibility and responsiveness to client needs should be the hallmarks of collaborative practice, which can accommodate a variety of styles and process combinations. Lawyers should regularly reconsider the requirement for a DA in collaborative files to determine whether some files could proceed as effectively if there were greater openness about future options for handling the file if negotiation does not succeed.

A new form of practice brings with it pressure for uniformity, anxiety about standards, and situations where there are no rules and, sometimes, no experiences to draw on. The same pressures can sometimes produce a form of zealotry in adherence to the new, if somewhat underdeveloped, credo. Collaborative practitioners must ensure that collaborative practice grows further as a credible dispute resolution process, and does not become a cult. This effort will involve encouraging debate and diversity with CFL, and making an explicit commitment to learn from other fields of conflict resolution and family services. CFL lawyers and other collaborative professionals should be encouraged to see themselves as part of a wider field of conflict resolution from which both they and their clients can only benefit.

C. Policy Issues for the Provision of Collaborative Family Law Services

There are a number of issues surrounding the development of CFL that policy makers and professional regulators have yet to address. While this study did not aim to answer questions for policy makers, some emergent issues can be identified and some comments are offered in this section.

i. Provincial funding (via legal aid) for CFL

At the time of writing, two provinces (Alberta and Saskatchewan) were introducing pilot projects to make CFL available within their legal aid plan. Similar discussions were proceeding in Ontario and other provinces may follow suit. This type of initiative will throw a spotlight on two issues discussed in this report: the qualification and experience of collaborative lawyers, and the extent to which they offer their clients conventional legal advice and counsel in a privileged setting. There is as yet no formal accreditation for collaborative lawyers (as discussed in the next section). Such accreditation may or may not be important to legal aid plans, which could in theory set and apply their own standards (for example, the completion of at least five collaborative cases). However, debate about the type of collaborative practice a collaborative lawyer has established (see, for example, the discussions of ideal types earlier in this report)—and, in particular, whether this practice might be conventionally understood as legal services —may be more vexatious. It would seem desirable for provincial legal aid administrators to ensure clarity and consistency of practice in these respects, if they are to offer CFL as family legal services and if they are to be clear about the professional expertise that is being funded. This effort may require legal aid administrators to clarify the role of legal advice, the privacy of some aspects of the lawyer-client relationship and the identity of the client of legally aided lawyer.

ii. Accreditation for collaborative lawyers

The nature of a specialization in collaborative law is beginning to provoke debate among regulators and the general public. At present, only a lawyer who is a member of a collaborative law group can be designated as a "collaborative family lawyer." Membership usually requires completion of training organized by the collaborative group and, in some cases, renewed training on a regular basis. There is a clear incentive for collaborative groups to hold their members to a standard—their reputation, which is their primary marketing asset, depends on it.

Nonetheless, there may be questions about the role of a regulator in the claim to such an area of specialized service, and we should expect this debate to develop over the next few years. For example, the provincial law society could include "collaborative law" in its program of specialist designation and oversee requisite training.

Whether this would result in better protection for the public is questionable. In practice, problems tend to arise at present in two circumstances: when a client ends up working in a collaborative process with a lawyer who is handling his or her first collaborative file and may be less than fully competent; or when a client works with a collaborative lawyer who has taken on a high-conflict case and is now out of his or her depth. Both of these dilemmas are already matters for concern, and regulators should focus on addressing these issues before tackling the larger question of accreditation. Moreover, this work could be done in cooperation with leaders in the collaborative movement, who recognize that it is in the interests of the collaborative movement to develop credible mechanisms—such as mentoring and supervision systems—to ensure client satisfaction and protect CFL from the bad press that such cases can easily generate.

iii. Professional codes of conduct

This study was concerned with the experiences of lawyers, clients and other collaborative professionals with CFL, and not with the potential for any breach of existing codes of professional conduct for lawyers or other collaborative professionals. However, this topic is becoming increasingly important in jurisdictions where there is concern that collaborative practice may bend the rules of professional conduct—for example, in relation to obligations of representation, competency and withdrawal. I am not in a position to comment on whether there is any potential breach of any of these obligations in collaborative practice; there are papers and opinions appearing on this point.[97] However, I would note that this is a live issue and will likely be considered in other jurisdictions over the coming months and years.

The professional conduct rules of mental health professionals are also affected by the practice of collaborative law and the role played by therapists as divorce coaches. Again, this issue is beyond the scope of this study but will become increasingly important as the team model of collaborative practice expands.