The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases
2. THE STUDY
CFL seems to exemplify a new and different role for lawyers as agents in conflict resolution, where they set out to offer their clients a clear alternative course to traditional litigation. Does this approach allow clients and lawyers using the collaborative process to escape the so-called "prisoners' dilemma," in which each side negotiates reactively on the basis of their worst fears and assumptions about the other? Can CFL enable open disclosure and the development of sufficient knowledge-based trust to produce less hostile negotiations? Do CFL clients enjoy qualitatively better outcomes than those generated by litigation or traditional negotiation? And more generally, do CFL clients experience a more complete and authentic sense of closure at the end of the divorce process?
This study used a practice-driven research agenda to try to answer these and other questions that providers and users of CFL services were asking. Conducted from 2001 to 2004, it was funded by the Social Sciences and Humanities Research Council of Canada and the Department of Justice Canada. The study examined many of the practical, ethical and conceptual questions raised by CFL. A qualitative methodology was developed to explore both anticipated and less immediately recognizable issues as they emerged through personal interviews with collaborative lawyers, clients and other collaborative professionals. While there was no control or comparison group for the study, the experiences of CFL clients could be placed within the larger frame of divorce clients who retain lawyers in a traditional capacity.
The study used interviews as the primary method of gathering personal, reflective and complex data about the experiences of lawyers and clients with the theory and practice of CFL. During the first year (2001-02), interviews were conducted with lawyers, clients and other collaborative professionals at nine sites in the U.S. and Canada where CFL groups are active. In the second year (2002-03), four locations—Vancouver and Medicine Hat in Canada, and San Francisco and Minneapolis in the United States—were selected to represent a range of different CFL practices and philosophies, as well as a variety of client groups. Each of these sites has a fairly well-established base of collaborative practice. Minneapolis is the home of collaborative law, where Stu Webb established the first group in 1990. Medicine Hat, Alberta, became the first Canadian CFL site in 1999. By 2001, practically the entire family bar there had been recruited to collaborative law. The first collaborative group in Vancouver, British Columbia, was established in 1999 (the Vancouver Collaborative Divorce Group). From the outset, it promoted an interdisciplinary approach, a valuable addition to the research. Medicine Hat and Vancouver also presented quite different demographic pools, with many low-income clients in Medicine Hat and a majority of middle-class clients trying collaborative team divorce in Vancouver. Finally, San Francisco was added as the fourth pilot site in recognition of the long history of collaborative law in the Bay area and the variety of groups and approaches there.
At each site, four groups of recently retained CFL lawyers, their clients and any other collaborative professionals involved in the case were asked to participate in the study. They committed to speaking with the principal investigator or an assistant in confidential interviews at various stages of their case. Standard interviews with each client and collaborative professional (lawyer, therapist, financial advisor or other individual) were conducted at the following stages: at the outset of the case, sometime between the first and the third meeting involving lawyers and clients (the "four-way meeting"); approximately mid-way through the case (usually after information gathering was complete and after substantive negotiations had commenced); and after the file was resolved (either via CFL or, if the parties decided to withdraw, once the CFL process was suspended or had terminated).
Interview questions for the case studies were developed as a result of interviews conducted during the first year, and extensively piloted during that time. Entry-stage interviews were usually conducted in person. In these cases, the interviews were audio-taped and transcribed (with permission). The standard questions used for lawyers, clients and other collaborative professionals are attached in Appendix A.
Mid-point interviews were generally conducted by phone, often supplemented by e-mail correspondence. Interviewers recorded phone interviews by taking notes during the interview. The standard questions used are attached in Appendix B.
Finally, exit interviews were conducted either in person or by phone. The standard questions used in the exit interviews for lawyers, clients and other collaborative professionals are attached in Appendix C. All research subjects were guaranteed confidentiality and anonymity in accordance with established ethical research practices.
Sixteen cases were selected to be studied intensively using this methodology. Unfortunately, in three cases, one of the clients was never available to speak with us, despite having initially agreed to participate in the study. In each of these cases, the client was under considerable pressure as a result of the divorce process. After many efforts to set up interview times, we accepted that speaking with us was not the client's priority at this time. In one other case, we were unable to re-establish contact with one of the clients for an exit interview, because the client had moved following the finalization of the divorce. Aside from these glitches, the overwhelming majority of people involved in each case were willing to complete the cycle of interviews with us and were extremely generous with their time.
One of the 16 cases suspended the collaborative process after a few months and the couple reconciled (Case 1). In one case, the couple left the collaborative process and pursued other routes to divorce (Case 7). In one case, having reached an agreement in a collaborative process, one party filed an application to vary the agreement almost immediately. This case is now in litigation (Case 12).
Just two cases (cases 6 and 8) used the team approach, including mental health professionals as full team members throughout the process. In seven other cases, experts (either child welfare specialists or financial advisors) were used at different stages of the process, but were not included as full team members.
Finally, when we closed the case studies in spring 2004, three cases (cases 10, 11 and 14) were ongoing. Case 14 was, however, close to finalizing an agreement. The fact that some cases would be ongoing some 12 to 15 months after initial contact was not anticipated at the outset of the study. In each of these cases, quasi-exit interviews were conducted with counsel and clients to assess the present state of the negotiations and solicit their reflections on the process.
We conducted a total of 150 interviews for the case studies. The breakdown of interviews at each site is as follows: Minneapolis, 29; Medicine Hat, 38; San Francisco, 40; Vancouver, 39; and Regina, 4.
Each quotation or other interview reference is notated as follows. Interviews with lawyers and clients conducted during field visits in Year One are numbered sequentially (1-46 for lawyers and 1-11 for clients). The 16 cases in the sample are numbered from 1 to 16 and, in each case, comments are ascribed to one of two clients or one of two lawyers at either an entry, mid-point or exit stage. To better disguise the identity of the therapists interviewed as part of the two team model cases (see above), references to interviews with other collaborative professionals are notated differently. These are numbered from 1 to 20, beginning with field site visits and continuing into case study interviews.
A case study methodology provides an intimate picture of the tensions, dynamics and relationships within any single separation or divorce case, as well as of the impact of the collaborative process on the resolution of the legal, practical and emotional issues. The case studies raise a very wide range of familiar family law issues, including the division of matrimonial assets and debts, such as property, pensions and family businesses; spousal and child support; and the care and upbringing of children, including decisions about where and with whom they shall live.
This study is concerned with the personal experiences of both lawyers and clients—and, in the multidisciplinary cases, the experiences of other collaborative professionals—in using CFL to achieve a divorce settlement that feels fair and practicable and enables the family to move through a traumatic transition. The perspective of clients is critical when evaluating the common assertion of collaborative lawyers and other CFL professionals that CFL offers a civilized, human and efficient approach to resolving separation and divorce issues; and that it adds valuable outcomes that litigation cannot provide, such as improved communication, more creative and durable outcomes, and better family relationships. In addition, the insight of clients allows for an appraisal of the relative convergence or divergence of the clients' goals and those of their lawyers in the collaborative process, a process that is frequently described as client-centred. It must also be remembered that individuals who are ending their marriage, and perhaps moving children into a new family configuration, endure enormous stress and emotional hardship, independent of the dispute resolution process they choose. Client comments should be understood in light of the frequently expressed view that divorce almost always takes longer and costs more than the parties had perhaps naively expected at the outset—and it often hurts more, too.
Soliciting the input of all those working on any one case enables researchers to assess the effect of the collaborative process, by taking stock of early expectations, hopes and fears; identifying the challenges, obstacles and quandaries related to the choice of negotiation strategy, as the case progresses; and, at the end of the case, evaluating how many original goals and expectations have been met and what other, less expected, outcomes have occurred. This in-depth case study approach appeared most appropriate to studying a new form of family lawyering. The limitations of the case study approach are obvious—it cannot provide sufficient data to allow researchers to make significant correlations or conduct a probability analysis. These forms of analysis will hopefully become available to the field as the number of CFL cases increases and further, quantitative, research is undertaken.
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