Alternative Dispute Resolution (ADR) processes have grown over the years in response to the destructive impact of litigation on families undergoing the stress and trauma of separation. The creation of many private ordering processes such as mediation and Collaborative Family Law is evidence of a recognition that, in family law, there is a need to protect the ongoing relationships of families.
Collaborative Family Law (CFL) has grown from its inception in 1990 when Stuart Webb, a disillusioned, burned out family law lawyer spearheaded a movement that has developed into an internationally recognized dispute resolution process, with CFL practice groups in most of the United States and Canadian provinces and growing internationally. At its heart, the CFL movement seeks to take the litigation threat out of the family law negotiation process and empower clients by having them participate directly in the decision making that affects their lives. It provides the parties with the opportunity to explore their needs and interests without the pressure or the threat of court. CFL has drawn many lawyers from around the world, to a model of practice which is antithesis of the adversarial process. The high stress levels associated with a family law practice have resulted in an unusually high burn out rate for practitioners in this field. Collaborative Family Law provides them with the option of practicing family law in a far more respectful manner without the “warfare” mentality, which is extremely appealing to many.
In Collaborative Family Law, both parties hire their own lawyers who have been trained in the collaborative process. All parties focus on negotiation from the outset in the form of open, positive, civilized four–way meetings where the clients participate equally with their lawyers toward the resolution of their disputes. If the negotiations break down and court is necessary, the clients are then required to seek and retain litigation counsel to represent them in court.
At the heart of the Collaborative Family Law process is the disqualification agreement which the parties enter into with their lawyers which require the lawyers to withdraw from representation if the negotiations break down and court is necessary. The disqualification agreement is essentially the enforcement mechanism to ensure that parties, both lawyers and clients, neither threaten or actually go to court during the CFL process. The power of the threat of court is eliminated. The goal is to work outside the court system and all efforts are focused on reaching agreement in a collaborative, interest based environment. Under CFL theory, the disqualification agreement is the metaphorical container around the lawyers and clients to help focus on negotiation. It contains the lawyers’ natural tendencies to threaten litigation as the first instance of disagreement. By negotiating within the “container”, many collaborative law clients feel protected against the pressures created by the adversarial process. ¹
The common response of family law lawyers when considering the Collaborative Family Law process is, “So, why bother, what’s the big deal? You don’t need CFL to settle files. I can do the same thing in a 4-way.” The “big deal” is the training and the mindset of collaboratively trained lawyers who recognize that the culture of litigation and adversarial practice often impedes resolution that is client focused. The benefit to clients is the skill and training of collaboratively trained lawyers in being able to handle the difficult emotions and dynamics in a settlement negotiation. A process that removes the warfare potential forces lawyers to be far more creative in looking for ways to help their clients settle their disputes. For lawyers, it forces them to step outside their comfort zones and directly deal with the interpersonal relationships of people who are often bitter and angry, as clients are directly involved in the decision making that will impact on their lives and the lives of their children. Outside the CFL process, pulling out of a negotiation when things get difficult and threatening court can actually be an easy way out for lawyers. They can then move back into a system in which they have been trained and are comfortable; one which values an adversarial model of justice in which their role is to zealously advocate for one’s client in order to secure the optimal legal gains. The “big deal” is that CFL takes the litigation threat away and forces lawyers to look for creative interests based solutions for their clients.
The function of the Collaborative Family Law model is to give separating spouses an alternative to the gladiator mentality of adversarial lawyers who control the process without real input from the client. Although most cases do settle before trial, the trial preparation process can often be devastating to families. Further “settlement” is often reached at the courtroom door, under significant pressure on the parties who wish, at all costs, to avoid the expense and trauma of the trial and all the uncertainties of outcome. There is no real opportunity for an exploration of needs and interests that may not necessarily be satisfied by application of strict legal principles regarding rights and entitlements.
The role of the lawyer in the Collaborative Family Law process should be to assist in helping people become empowered and control their own processes. The process defines itself as “client centered” due to its interdisciplinary nature. The clients not only have lawyers assisting them, but also, financial practitioners, child and family mental health professional and coaches, all working cooperatively to support the “whole client” with their legal, financial, emotional and psychological needs.
Although Collaborative Family Law isn’t for everyone, it provides the opportunity for separating couples to take some control over their lives and participate actively in reaching solutions that will have significant impact on their lives and the lives of their children. To be able to avoid the posturing of lawyers and the threat of court can only benefit clients in what is a very difficult time in their lives. Lawyers are forced to think outside the legal box and consider their clients needs and interests. They can protect their clients by providing legal advice but do so within an atmosphere of cooperation and openness. Questions are asked, options are considered and hopefully, “war” and “defensiveness” are taken out of the words, out of the room and out of the resolution process.
Taken from an article written by Milka Vujnovic for the Hamilton Law Association Journal
© June 30, 2008
1 J. L Lande. “How Will Lawyering and Mediation Practices Transform Each Other?” 24 Florida State University Law Review. 1996-1997. pp. 839-901
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