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

2005-FCY-1E

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APPENDIX A
ENTRY INTERVIEW QUESTIONS

Lawyers

Demographics

• Male/female
• Year of call
• Number of CFL cases/years in CFL work

GENERAL LEGAL PRACTICE ISSUES

• 1. Why did you become involved in collaborative law?

• 2. What do you see as the essence of your role in a collaborative law case?

• 3. In what ways—if at all—does representing a client in a collaborative law case require a lawyer to do anything that changes the essence of your traditional advocacy role?

• 4. What does it mean to be an advocate for your client in a collaborative law case?

• 5. Do you have any particular client "profile" in mind when you recommend using collaborative law?

NEGOTIATIONS IN A COLLABORATIVE MODEL

• 6. In your previous experience, in what ways do collaborative lawyering "four-ways" differ from the traditional model of lawyer-to-lawyer negotiation in litigation

  • in their dynamics?
  • in the kinds of interaction that take place?
  • in their overall climate and tenor?
    • Do you have other observations?

• 7. How do you prepare for collaborative negotiation? How does this differ from negotiation in the context of traditional litigation?

• 8. To what extent are integrative, problem-solving approaches used in collaborative negotiations? To what extent are collaborative lawyers prone to falling back on positional negotiation styles? For example, in your experience,

  • does the ritual of exaggerated offer and underestimated counter-offer still occur in collaborative law negotiations?
  • do collaborative law negotiations result in traditional split-the-difference type solutions or are there interests-based discussions and solutions?

• 9. Do you experience any tension between the dominant culture of concealment and non-disclosure in negotiation and the commitment to open exchange of information in the collaborative law paradigm? How do you understand the latter commitment in terms of your advocacy role?

• 10. What expectations do you have concerning the roles to be played in the four-way meeting by the lawyer and the client, respectively? What has been your experience with client participation? What are your particular expectations in this case and on what are these based?

OUTCOMES

• 11. How do you measure "success" in a collaborative law case? For example, what does a "good outcome" look like? Does it differ from the way you measured "success" in a traditional litigation case?

• 12. Do the outcomes achieved by these approaches differ qualitatively from those achieved via traditional negotiations in the shadow of the law? (Please give some examples from other cases.)

• 13. What would a "good outcome" look like in this case?

ETHICAL ISSUES

• 14. Do you see any ethical (or Ethical) issues arising from your practice of collaborative law? For example,

  • representing a client who is emotionally or physically vulnerable to his or her spouse (what screening do you do?)?
  • deciding when to encourage the client to continue to negotiate versus commence litigation?
  • disclosing all information within the collaborative team?
  • handling withdrawal if your client or the other side does not honour the commitments to full disclosure and so on?
  • ensuring a voice for any children in the CFL process, including separate representation?
  • encouraging your CFL clients to take steps toward agreement on their own?
    • Have you noted other issues?

• 15. Do you anticipate any of these issues arising in this case?

Process variations (as appropriate)

• 16. What do you see as the role in this case for non-lawyer professionals (therapists, coaches, financial planners, child specialists)?

  • How does this role affect the role of lawyers?
  • Are there any boundary issues?
  • Do you anticipate—or have you seen in other cases—any other collaborative team issues?

• 17. What do you see as the major difference between a collaborative law approach and mediation using a third party?

  • What are the respective advantages and disadvantages?
  • How might you explain CFL and mediation for the purposes of client choice?
  • How, if at all, do you see the relationship in practice between these two approaches—for example, when might you bring a mediator into the process, and why

• 18. What issues are on the table for negotiation in this case? (Examples include custody, access, matrimonial property, pensions, support and other issues.)

• 19. Generally, what are your expectations regarding the progress of this case?

• 20. Any other comments or thoughts?

Clients

Demographics

• Male/female
• First marriage/divorced
• Years married
• Children
• Income bands
• Legal aid

1. How did you first hear about collaborative law?
2. Why did you decide to try collaborative law in this case?
3. What are your expectations of the CFL process?
   • Trust-building
   • Openness
   • Future relationship with ex-spouse
   • Lower overall costs
   • Faster resolution
   • Better for your kids
   • Other
4. What is the status quo in your domestic arrangements? What is the nature of your relationship with your spouse? What, if anything, do you wish to change?
5. At this point, how would you define a successful outcome for your divorce?
6. How would you describe your working relationship with your lawyer—as a partnership, an expert-client relationship or some other sort of relationship?
7. If you have had other litigation (divorce or other) experience, how does this compare to that experience?
8. Are you working with any other professional at this time? What do you expect to be their role and why did you choose to do this?
9. Is there anything that concerns you about the collaborative model? How optimistic are you feeling?

Other Collaborative Professionals

Demographics

• Male/female
• Professional qualifications
• Number of CFL cases/years in CFL work

General practice issues

• 1. Why did you become involved in collaborative law?

• 2. What do you see as the essence of your role in a collaborative law case?

• 3. Do you work with one or both spouses here?

• 4. In what ways—if at all—does working for a client in a collaborative law case require you to do anything different from—and even in tension with—your usual professional role?

• 5. Do you have any particular client "profile" in mind when you recommend using collaborative law?

Negotiations in a collaborative model

• 6. How do you prepare your client(s) for collaborative negotiations?

• 7. Have you participated in any of the four-way meetings in this case? Is this ever your practice?

• 8. Are there any professional ethical disclosure/confidentiality issues for you when you participate in a collaborative team divorce?

Outcomes

• 9. How do you measure "success" in a collaborative law case? For example, what does a "good outcome" look like?

• 10. What would a "good outcome" look like in this case?

ETHICAL ISSUES

• 11. Do you see any ethical (or Ethical) issues arising from your practice of collaborative law?

• 12. Do you anticipate any of these issues arising in this case?

Team issues

• 13. How do the roles played by the different professional partners in this case mesh?

  • Are there any boundary issues?
  • Are there issues of professional status/relationship?
  • Do you anticipate—or have you seen in other cases—any other collaborative team issues?

• 14. Generally, what are your expectations regarding this case?

• 15. Any other comments or thoughts?

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