Collaborative Law, Collaborative Divorce & Collaborative Mediation: Building Cooperation between Professionals and Separating Spouses
Dr. Barbara Landau Fall, 2002 President, Cooperative Solutions
This paper will highlight three relatively new choices to assist separating couples: Collaborative Family Law (CFL) , Collaborative Divorce and Collaborative Mediation. For mediators, the Collaborative Mediation model in particular, promises to blend the best of mediation with the newly acquired skills of collaborative lawyers.
1. What is Collaborative Family Law?
First and foremost CFL represents a paradigm shift from the traditional role of a lawyer. Fundamentally, CFL blends interest based negotiation theory and mediation skills with the ability to problem solve. The result is that collaborative lawyers act as legal advisors, respectful role models and coaches for their clients. The clients are encouraged to take the primary role in negotiating agreements that they believe will meet their own and their children’s needs. The lawyers’ knowledge and creative problem solving skills are directed at reaching an integrative solution that everyone can say ‘yes’ to and that the parties feel committed to uphold.
Steps in the Collaborative Family Law Process
a) The process consists of an initial meeting between a lawyer and his /her client in which a range of options are discussed for addressing the issues in a separation or divorce. The clients learn that CFL is not adversarial or litigation focused. In fact, both clients and their lawyers must sign a Collaborative Participation Agreement at the outset, agreeing not to litigate if an impasse is reached. What this means is 100% of the lawyers’ and clients’ effort is directed at finding a win-win solution. Should that not be possible, the lawyers must withdraw and turn the matter over to counsel from a different firm.
If both clients select CFL during a meeting with their own counsel, then a series of 4 way meetings are scheduled.
b) Prior to the first 4 way meeting the lawyers meet, preferably in person, to develop a positive working relationship, share general observations about their clients (eg How they are adjusting to the separation? What issues need to be addressed? Are there urgent issues? Etc.), agree on a date, location and agenda for the first 4 way meeting, including how the initial meeting will be conducted and conflict management strategies. It is crucial to the success of the collaborative process that the lawyers create the mindset of a “team effort” to reach a mutually acceptable settlement. While each lawyer is still in the role of an advisor and advocate for his/her client, the goal is not “winning over” the other party, but “winning with” the other party, in a way that benefits all affected family members.
c) Prior to the first 4 way meeting, each client meets with his/her lawyer to prepare. The most important item is to ensure that there is a real understanding of the terms of the Collaborative Participation Agreement, including that both lawyers are obligated to withdraw if the matter goes to court, that full and frank disclosure is required as soon as possible, and that good faith negotiations are essential. Then, the agenda for the 4 way meeting is discussed and the issues and priorities are clarified. Unlike the traditional 4 way meeting, the focus is not on the preparation of legal arguments, but rather on explaining the interest based approach to constructive problem solving, the importance of respectful communication, and how to utilize the tools of Active Listening and “I” Messages.
Also, it is important to clarify the roles of the lawyers and clients in a collaborative process. In the traditional process, lawyers usually speak on behalf of the clients and argue the merits of their client’s position. In a collaborative process, the lawyers encourage the clients to take the lead, with their assistance, in actively seeking a win-win outcome. Lawyers need to explain to their clients that the lawyers will address questions and make supportive or validating comments to the “other side” in an effort to build a positive working environment. Clarifying expectations in advance can prevent misunderstandings and disappointment.
At this point each lawyer may recommend that his/her client take advantage of supportive counselling in relation to the separation or consider the use of impartial professionals for addressing some of the family law issues (eg a mediator for parenting issues, a business valuator or actuary to value pensions, etc).
d) At the first 4 way meeting the Collaborative Participation Agreement is read, discussed and signed by both lawyers and clients and before substantive issues are addressed, the participants agree on guidelines for respectful communication (both within and between sessions), and a process for resolving conflicts or addressing potential impasses. They also agree to protect the children from being caught in the middle of their disputes.
Then, the issues are clarified, prioritised and any urgent matters addressed. Agreement is reached on the documents needed for disclosure, a reasonable time frame is set, relevant impartial professionals are added to the collaborative team with everyone’s approval and tasks are assigned to each participant to complete prior to the next 4 way meeting. One of the lawyers takes notes of the agreements reached and prepares a summary, including the agenda for the next meeting. For example, it may be that the parties engage (or have already seen) a mediator to create a parenting plan, a pension valuator to determine the value of a pension, one or more real estate agents to appraise the home, etc, so that all relevant appraisals are ready for the appropriate 4 way meeting. Clients no longer engage partisan experts who surprise the other side with values that appear ‘optimistic’, assets do not mysteriously disappear and insurance proceeds do not find their way to pet canaries until both parties agree that all reasonable family responsibilities have been met.
In between meetings, the lawyers review the progress being made both with their clients and with each other and additional 4 way meetings are held until an agreement satisfactory to the participants is reached. This agreement is signed at a final 4 way meeting.
While the role of the lawyer is still to represent his/her client, collaborative lawyers are bound by special Rules of Conduct that encourage constructive problem solving and discourage hostile correspondence, angry affidavits, threats of litigation, take it or leave it offers or other intimidating or power based tactics. They are required to withdraw if their clients do not act in good faith or if litigation is pending. Therefore the lawyers, as well as the clients have a considerable investment in a successful resolution.
2. What is a Collaborative Divorce?
A Collaborative Divorce involves an integrated, cross-disciplinary team model for delivering professional services to divorcing clients. It is the legal equivalent of a multi-disciplinary team in the mental health field. In cases that require a range of expertise, for example to assist parents as a communication coach, or with developmentally appropriate parenting plans, or to value a business, the family can benefit from the co-ordinated efforts of several professionals, all acting in an impartial capacity, to resolve their outstanding issues in a non adversarial manner.
While other professionals may be added to a CFL case, the Collaborative Divorce tends to be more of an ongoing working relationship between team members rather than an ad hoc arrangement.
A process similar to CFL is followed with respect to the role of the lawyers, but others assist as needed and as determined by the person who is acting as a “case coordinator”. As with a CFL case, those professionals who are assisting the couple must agree to withdraw if the matter goes to court.
3. What is Collaborative Mediation?
Collaborative Mediation is process that begins with clients selecting mediation as their preferred method of dispute resolution. These clients frequently have not yet seen a lawyer or have had minimal contact and not yet retained counsel. They are usually anxious about involvement with lawyers, fearing that their hopes for a non adversarial resolution will be disappointed. They are usually worried about losing control of their decision making and prefer a process that encourages them to design their own terms for separation.
Collaborative Mediation offers this opportunity. As mediators we are obliged to send people for independent legal advice. Now we can include the lawyers under the umbrella of a Collaborative Mediation Agreement and have the mediator, both clients and both counsel committed to the same non adversarial process.
In some cases the mediator will assist the parties to mediate all issues (comprehensive mediation) and the lawyers will attend a preliminary 5 way meeting to clarify roles and time lines and will not meet again unless a difficult issue arises, an impasse is reached, or the Memorandum of Understanding is ready for review by the lawyers. In other cases, the mediator may assist with the parenting plan and then transfer primary responsibility for financial issues to the collaborative lawyers. In any case all will have signed a Collaborative Mediation Agreement.
4. What are the advantages of the Collaborative Mediation and the other Collaborative models?
Most clients that I see retain mediators before they have lawyers. Their prime motive for seeking mediation is frequently to avoid an adversarial battle. The client’s concern is almost always that if lawyers are involved, they will end up in the “divorce from hell”, it will undermine their ability to cooperate with their ex spouse, it will cost a fortune, and the psychological stress will have a terrible impact on them and their children. Despite this resistance, mediators are subject to a Code of Conduct that requires that they make every effort to ensure that their mediation clients are protected by having independent legal advice. While most mediators comply with this requirement, many acknowledge that their worst nightmare is that mediation clients, who have managed, with difficulty, to set aside their anger and hurt feelings, will be drawn back into an adversarial battle by their lawyers.
The best protection for the clients is a referral to collaborative lawyers. This is also the best way for the mediators to be sure that the clients will complete an agreement cooperatively.
CFL and Collaborative Mediation offer many of the benefits of traditional mediation, but with the additional safeguard of the lawyers’ presence for high conflict separations.
Also, financial disclosure completed in a collaborative manner is likely to be more efficient. One of the guidelines requires that the parties make full disclosure of all relevant information at the earliest opportunity to ensure a fair and expeditious settlement. This has the effect of building trust between the parties, an important element in any successful settlement.
If special expertise is needed, a single agreed upon expert (such as a pension valuator, a business appraiser, etc) can be jointly retained. This saves the client money and minimizes any hostility, caused when one parent feels excluded from important decisions or that they have been presented with a “take it or leave it deal”.
From the lawyer’s perspective, the practice of family law would likely become far more appealing. Few members of the Bar experience pleasure knowing they have “won” a case, and in the process done significant harm to future relationships with children, grandparents and friends. Also, Family Law is very stressful for most lawyers. Clients, who are extremely unhappy and fearful about their future, often take their lawyers along on the roller coaster ride.
Collaborative lawyers and clients stand to benefit from the involvement of mediators. What mediators can gladly offer to Collaborative lawyers, are clients, along with the promise to the clients that their case will not end up in court! In the future, I plan to restrict my referrals to those trained as Collaborative lawyers or mediators.
In the future, CFL will likely be applied to other areas where the need for an ongoing relationship or the cooperation of parties is needed, for example, estate matters, partnership disputes, environmental issues, victim -offender cases, and neighbourhood disputes.
Note: Dr. Barbara Landau, President, Cooperative Solutions, is a psychologist, lawyer, mediator and trainer who specializes in family and other relationship disputes. She offers courses in Family Mediation and Collaborative Family Law. . This article was first published in the Fall, 2002 issue of Interaction, the Newsletter of Conflict Resolution Network Canada www.crnetwork.ca