The Basics of Collaborative Family Law – A Divorce Paradigm Shift

Content courtesy of The American Journal of Family Law, edited by Attorneys and Mediators Papa and Roberts

Collaborative Family Law (CFL) is a revolutionary approach to divorce that has rapidly spread throughout the United States and Canada. Often misunderstood and occasionally maligned, it has the potential to dramatically change the field of family law. In Canada, it has virtually eliminated family law litigation. Collaborative Family Law is a continuation of the trend to empower participants in the divorce process that began with, and shares many of the principles of, mediation. This article will provide an overview of the basic principles and choreography of Collaborative Family Law.

By definition, a Collaborative Family Law case requires that a each spouse be represented by counsel who have been trained in interest-based negotiation, the choreography and structure of Collaborative Family Law, and interpersonal conflict resolution skills. Counsel and clients execute a contract, often called a Participation Agreement, which mandates that both attorneys are precluded from representing their respective clients if the case reaches impasse or if either party chooses to withdraw from the CFL process. The roadmap of the process requires that the participants focus on the interests of both clients, gather sufficient information to insure that decisions are made with full knowledge, create a full range of options, and then choose options that best meet the needs of the parties involved. The structure creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.

In some jurisdictions, the Collaborative Family Law case is not filed until all issues are resolved and the marital or separation agreement is executed. In other jurisdictions, especially those with long pre-divorce waiting periods, by agreement, one lawyer files early in the case in order to begin the statutory waiting period. However, collaborative counsel is stayed from actually proceeding on contested issues in court during this period. Temporary issues of support and parenting must be resolved in the Collaborative Family Law process without filing preliminary motions. In cases not yet filed, rather than having Temporary Restraining orders to preserve the marital estate, clients rely upon the Participation Agreement's mandate that assets remain intact while the process is pending. To circumvent "fast track" requirements, some jurisdictions have adopted a local rule of court to provide for stays of varying length. Texas is the only state that has adopted a Collaborative Law statute which allows for a stay of up 180 days.

A. The Role of Associated Professionals

In some areas of the United States, and particularly in Canada, Collaborative Family Law includes associated professionals to enhance the co-operative approach. The expertise of neutral financial planners and mental health professionals can help provide critical information needed to focus divorcing parties on the range of options available at the termination of a marriage. Additionally, mediators also may have a role in Collaborative Family Law. In the event of impasse, mediators may be utilized to assist to break impasses with focused sessions that include counsel, parties and the mediator.

Financial planners have become increasingly sensitive to divorce-related financial issues. One such organization, The Institute for Certified Divorce Planners, focuses on training and certifying financial planners, CPAs, and attorneys on divorce related financial issues. Financial planners can help in the Collaborative Family Law process by creating budgets, providing alternative spousal support scenarios, and reviewing property divisions by taking into account assumed rates of return. Planners can provide long-term projections to allow a spouses to examine how settlements might impact each over a period of time. Mental health professionals assist as Child Specialists and as Coaches. Child Specialists help parents focus on the needs of the children. While most divorcing parents worry about how divorce will affect their children, in the consuming divorce process itself, the concerns and interest of the children are often eclipsed by other immediate, pressing demands. The Child Specialist is usually retained as an expert neutral. In most cases, Child Specialists meet with children and parents to gather information regarding their interests and concerns. The Child Specialist is in a unique position to provide aid to the family. Working with the parents, the Child Specialist informs parents about common reactions children have to divorce, discuss developmental and practical considerations important to making parent arrangements, and assist parents in developing realistic parenting time plans. Additionally, parents who have had positive experience with the Specialist have a qualified neutral to offer assistance as circumstances and the needs of the children change with time.

Mental health professionals may also serve as Coaches for the two parties. Generally, two gender-matched divorce Coaches are retained; husbands have a male coach and wives a female coach. The goal of coaching is to help clients manage their anxiety and conflict so that they effectively communicate and work with each other in the Collaborative Family Law context, and beyond. Coaches help clients learn new communication, problems solving and relationship skills.

Associated professionals can bring significant value to the Collaborative Family Law case. While at first glance, what appears to be a "cast of thousands" approach to divorce seems cumbersome and cost-prohibitive, the price of dealing with financial and psychological concerns directly is often minute when compared to ending a marriage with unresolved, issues. These unresolved issues often take on lives of their own in the post-decree period. In fact, in one collaborative model, known as Collaborative Divorce®, the model itself requires the entire team be in place.

This article focuses on the lawyer's role in Collaborative Family Law as it has primarily evolved in the United States. In the most cases, lawyers are the only collaborative professionals involved and associated professionals are retained on an "as needed" basis.

B. The Paradigm Shift

Paradigm has been defined as 'an entire constellation' of beliefs, values, techniques shared by the members of a given community." To understand the dynamics of a CFL case, a paradigm shift is required. The shift begins with an examination of the adjudicatory model. In the vast majority of instances, the adjudicatory model simply does not meet the conflict resolution needs of couples terminating marriages. The adjudicatory model is grounded in a system in which evidence is presented to a 'trier' of fact based upon civil rules and rules of evidence. Family law shares the same basic adjudicatory structure as criminal cases, commercial civil disputes, constitutional challenges, and negligence actions; yet family disputes are inherently different. Unlike the plaintiff in a negligence action who sits across a courtroom from a stranger-defendant he/she will never see again, the plaintiff-father in a divorce action sits across a courtroom from a defendant-mother with whom he will continue to have contact, and with whom he will need continued cooperation and good-will in order to effectively parent children. The court system is adversarial and contrary to the fostering goodwill and cooperation needed in continuing parenting relationships.

A client often comes to an attorney and requests that a divorce action be filed "so that a judge can hear the evidence and "do what's fair". The client rarely comprehends that he/she is about to enter a system in which a judge might determine "fair" to be quite different than the preconceived expectations. The client doesn't anticipate a system in which he/she might wait in the hallway while the lawyers and the assigned judge discusses his fate, and he/she is surprised and disappointed to find a system in which cases are often heard piecemeal by courts.

Collaborative Family Law provides a structured approach to divorce that addresses many of the concerns not addressed by the traditional court system. Collaborative Family Law is the formalization of a new settlement model. Inherent in the paradigm shift is the requirement that attorneys learn new models of communication and conflict resolution in order to meet the needs of clients. Lawyers in the Collaborative Family Law case focus on the nature of the conflict and work within a very specific structure to manage the conflict and transform it into collaboration. The Collaborative Family Law process replaces Rules of Evidence and Procedure with specific protocols and choreography. Clients are given substantial opportunity to own both the process and its outcome.

The lawyer in the Collaborative Family Law process helps the client to articulate his or her interests, assists in the creation of a broad spectrum of options to meet the interests articulated, assists in assessing those options based upon several criteria, and helps the client focus on the consequences of choosing various options. A part of the assessment process is determining how an option compares with a court-generated outcome. That is, if the client opted to use the court system, how does the range of possible court outcomes compare with options created in the Collaborative Family Law context. The Collaborative Family Law negotiation, in a sense, takes place in the "shadow of the courthouse." Court settlement ranges are, however, only one set of options available. Clients are encouraged to review the needs of their family and the reality of their own situations. The brainstorming process and the assistance of counsel allows clients to arrive at creative and imaginative solutions.

C. The Collaborative Family Law Choreography

A shared choreography provides counsel with a road map of the process and creates predictability and an environment for efficient negotiations. The basic choreography entails the initial attorney-client consultation, preparing the client for a meeting with both attorneys and both clients (the four-way meeting), the attorney-to-attorney consultation to develop an agenda and prepare for the four-way meeting. Four-way meetings usually take place in two hour sessions in which the majority of the Collaborative Family Law substantive work is done. In most cases, following the four-way meeting, counsel and client each meet to discuss the previous meeting and potential issues and concerns for the upcoming meeting.

The choreography starts with the initial contact with a client. The client is often in a state of fear, panic and confusion in the first contact with a domestic relations attorney. The client is generally fixated on the substance of the impending divorce. Questions concerning custody arrangements, the duration and amount of spousal support, and child support calculations are at the forefront of the client's mind. What is rarely appreciated is the process choices, the manner in which a couple goes about terminating the marriage, may have as much, if not more impact on the substance issues and how the termination of the marriage impacts the family both during and following the divorce.

Because process is so important, at the initial conference with a client, the process options to end the marriage are discussed first. This discussion assumes a client is in a position to make decisions and that a case has not already been filed and irretrievably placed on the litigation track. Prior to discussing process options, counsel first inquires about issues of domestic violence and possible substance abuse. While such an inquiry should be standard in all domestic relations cases, it is critical in cases in which a client may choose Collaborative Family Law. As in mediation, a client in the Collaborative Family Law process is directly involved in the negotiation. Issues of potential duress and personal safety must be addressed. There is some question as to whether an abused spouse should 'be permitted' to access Collaborative Family Law. The critical and determining factor is whether the client has the capacity to knowingly choose a process with a complete understanding of the consequences. If a client chooses the process, the client must do so with a clear understanding of the consequences of a possible confrontational situation and the attendant safety concerns. If Collaborative Family Law is selected, in these cases, it may be appropriate to insist upon coaches or other mental health intervention.

The process options range from the least amount to the most amount of outside intrusion into the matters of the family. The least intrusive is a couple reaching its own agreements "at the kitchen table," with virtually no outside assistance. The second option is mediation whereby a mediator assists a couple by facilitating their negotiation. Mediation is usually most effective when both spouses consult with lawyers during the mediation process. The attorney's role in the mediation process may vary from community to community. Collaborative Family Law falls next in the spectrum of process options. In the Collaborative Family Law case, lawyers are a significant part of the process and are more integrally involved in generating options, risk analysis and facilitating the negotiation. The next process option is traditional lawyer-to-lawyer negotiation, and the final option is litigation.

Prior to a party choosing the Collaborative Family Law process, the attorney and client review the Collaborative Family Law Participation Agreement. Although Participation Agreements vary, the Agreement usually contains certain fundamental provisions. There is a core provision that the attorneys agree not to participate in court intervention in the case. If the case reaches impasse, or a party determines that court action is necessary, each party must retain new counsel. Unless there is a need for emergency relief, a 30 day waiting period must pass before a party can go to court. The parties also contract to provide complete, honest and disclosure of all relevant information. The standard is that there must be full disclosure, whether the information has been requested or not. There is an affirmative duty to disclose; failure to do so will result in a termination of the process. There is often a temporary restraining order type provision that requires that health and life insurance policies and accounts remain undisturbed during the penance of the Collaborative Family Law negotiations. The Participation Agreement also includes a provision that the parties may opt to jointly retain an expert, such as a business valuation specialist as a neutral, and that the expert cannot be called to testify absent both parties specific waiver of the neutral expert provision.

The issue of full and voluntary disclosure is often troubling to attorneys first exposed to Collaborative Family Law. Attorneys are suspicious of a process that does not include formal discovery, in spite of their knowledge that the formality of interrogatories, motions for production of documents and depositions does not provide a guarantee of full and complete disclosure. In reality, most experienced attorneys admit that the traditional discovery process is often burdensome and exhausting. Countless interrogatories and requests for production of documents are often met with haphazard and incomplete responses. Motions to compel and for sanctions take significant attorney time and often deplete fee retainers before an attorney even begins the substance of the case. This cat-and-mouse game is unsatisfying and frustrating for lawyers and clients. Additionally, formal discovery often doesn't uncover well hidden assets.

The information-gathering part of Collaborative Family Law provides the underpinnings of the entire process. Without information, options are limited and participants are not in a position to create rich, meaningful settlements. In the Collaborative Family Law process, discovery is not dead, it has simply been renamed, streamlined and packaged in a way that finally makes sense. In the Collaborative Family Law context, a party that has concerns or questions about hidden assets, misspending or marital trace issues has the same, if not more, opportunity to obtain records and information. To alleviate concerns, parties may execute affidavits of full disclosure at the conclusion of a case.

The core Collaborative Family Law work is done in four-way meetings. Prior to the four-way, each attorney meets with his or her client to prepare for the meeting. This preparation includes helping the client to examine interests. Clients often arrive at the initial consultation with positions, either hardened or otherwise. For example, fathers often come into the divorce process with the position of 50/50 time-sharing of children and mothers frequently come into the process with a hardened position of retaining the marital residence and stability for the children. The lawyer in a Collaborative Family Law case works with a client to elicit the underlying interests behind positions to ultimately allow the creation of numerous options that might meet those interests. Clients are provided with a context to help them differentiate their interests and positions.

Additionally clients are provided with the framework of collaborative communications. The attorney and client may begin to talk about what information will be necessary prior to a couple being able to work to generate options to resolve issues.

After the attorney-client preparation and prior to the four-way meeting, the attorneys consult to set the structure of the upcoming meeting and to discuss and establish agendas. This includes a process agenda, focusing on the most effective and efficient way to negotiate the case, and a substance agenda which discusses temporary issues and a framework for gathering and obtaining valuation information. These agendas are based upon the discussions each attorney has had with his/her respective clients. Additionally, with the permission of their clients, the attorneys discuss "hot spots" and areas of particular concern that have been raised by each of their clients. The goal of the relatively brief attorney to attorney consultation is to insure that the four-way meeting addresses the client's concerns and proceeds smoothly.

The four-way meeting is the heart of the Collaborative Family Law process. The initial four-way meeting sets the stage for a problem-solving atmosphere. The clients find comfort in the knowledge that they have both been similarly briefed by counsel. Clients are prepared to articulate their interests and goals. Both know that they have been given the same communications rules and both are aware that the lawyers will provide a safe framework in which they may negotiate their own best interests. At the meeting, the Participation Agreement is used to anchor clients into the process and obtain a comfort level at the initial session. The Agreement is reviewed and discussed to ensure that clients are fully apprised of the basics of the Collaborative Family Law process, that the lawyers are committed to assisting them to reach meaningful resolution in their case, and that the lawyers will not take the case to court in the event of an impasse. After the Participation Agreement is executed, the attorneys may review communications ground rules for the four-way meetings. These ground rules, often called 'Process Anchors' are communications hints for clients to remember at four-way sessions. These anchors' include reminding clients to focus on the impact of the way in which they communicate during the negotiation process. They focus clients on recognizing the uselessness of arguing by asking each party to identify his or her own perspectives, interests and beliefs and listen for those of their spouse. They remind clients, as they are about to say something damaging, to analyze if the comment will help them to meet their interests.

D. What Makes Collaborative Family Law Different?

Lawyers unfamiliar with Collaborative Family Law often say, "I negotiate most of my cases anyway. How does Collaborative Family Law differ from two reasonable lawyers negotiating a case?" The differences are in the fundamental concepts of client empowerment, the impact of having attorneys and clients sit down with a shared choreography and the impact of negotiation when the litigation club is removed from the negotiation table. Metaphorically, for the participants in a Collaborative Family Law case, the lawyers and clients are sharing a boat that they all must row together in order to move forward. They know that they will hit choppy water, and there is comfort in knowing that they have equipment aboard to deal with encounter difficulties. Most important, the clients have the largest paddles on the boat. They control where they go and how and when they get there. If they opt to abandon ship, the "court" boat will tow them and with that tow, comes a loss of power. There is shared mutual advantage to staying on course.

Giving up the 'court club' is often a frightening concept to attorneys. They worry that in so doing they will have to abandon a client who has sought assistance at a vulnerable time. With skilled professionals, impasse is rare. Systems are in place to assist when a Collaborative Family Law negotiation breaks down. For example, in San Francisco, the Participation Agreement includes a provision for a limited purpose private judge. It allows a private judge to assist in resolving limited impasse issues. In other U.S. cities, impasse mediation is used. Alternatively, the members of a practice group designate a rotating 'mentoring panel' to assist in resolving impasse through consultation.

For a couple involved in terminating their marriage, the choice of Collaborative Family Law is the beginning of client empowerment. Clients assess the value of a an efficient process to gather needed information, a communication model that requires that they listen to one another, and attorneys committed to producing a full range of options in order to reach a meaningful settlement. Although for many, the prospect of entering into a process that might mean attorney withdrawal is a concern, the benefits of the process outweigh the concerns. Clients have the opportunity to assess the circumstances, evaluate options, understand the consequences and select a process.

E. Conclusion

There are over 75 Collaborative Family Law practice groups in the United States and Canada. One of the most successful practice groups is the Collaborative Family Lawyers of Cincinnati. This group was founded in 1997 and there are now 66 family lawyers trained in Collaborative Family Law. Hundreds of Collaborative Family Law cases have been completed, with relatively few impasses. The group meets monthly to reinforce the new paradigm and discuss issues or concerns raised by ongoing cases, and by cases in progress. The experience of the Cincinnati family bar has generally been positive. Collaborative Family Law provides an opportunity for both lawyers and clients to engage in what has come to be known as "the good divorce." It is an opportunity worth exploring.

Attorney and Mediator Benjamin Papa is available for consultations (related to divorce and family law issues) in Nashville, TN. Submit an inquiry to Attorney Papa.

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