The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases
3. CFL OBJECTIVES, EXPECTATIONS AND MOTIVATIONS
Each participant in this study—whether a client, a lawyer or another collaborative professional—was asked in various ways and at various stages of their case to describe their objectives, expectations and motivations. These responses were both specific (to the resolution of this case) and more general—they reflected different preoccupations and concerns—and they told us a great deal about how effectively CFL lawyers, in particular, are combining their own agendas and interests in practicing collaboratively with a clear view of their clients' needs and interests.
i. Value re-alignment
The most frequently voiced reason for moving toward a collaborative model of practice was an abhorrence of litigation for family matters. There are numerous examples in the interviews of lawyers expressing this view. Consider these descriptions by experienced family attorneys:
In litigation, even if you got a good legal result for the client…at the end of it there is just depression and ashes. It leaves more than a sour taste—it leaves a sickness in the stomach of the client, and in mine, too. Case 16, lawyer 2, entry interview, unit 73
Spouses are an open book to one another, and the language of affidavits attacks all the vulnerabilities of the other. This is destructive between spouses as well as for kids. Then an idiotic jerk of a judge who probably has an IQ of about 10 decides what should happen to this family. Site visit, lawyer 20
Beyond these expressions of extreme distaste for litigation, collaborative lawyers were often highly reflective about the ways in which the litigation system got "under their skin" over the years that they practiced traditionally. A number talked about the inevitability of adversarial behaviour and hurtful consequences in the traditional litigation model, and their discomfort with being drawn into such situations. For example,
I think most of us don't purposely go out when we file these affidavits with the intention of destroying things, but we do it to protect ourselves. If somebody wants something then you better put everything in there, because you've got to get the strategic advantage. I always have trouble with that. We don't have to do that anymore. Case 2, lawyer 2, entry interview, units 168-172
I'd come back from court and [I'd] say, "I'm a winner! I'm a winner!"—or I'd come back from court saying, "Can you believe what that damn judge did?" It's about winning. And you don't care. I'm a pretty moral person, but in the old system you want to win for your client and that's it. So what if the court agreed with your submission that was a little goofy and gives you $2,000 more per month that you shouldn't have gotten? You are a winner, and you did good for your client. So what if you took advantage of some other lawyer's stupidity? I don't care—I'm a winner! Field visit, lawyer 10
I would find myself encouraging—and I was great at it, but…you can't avoid this, you're encouraging grossly inflated and unrealistic expectations on the part of the client as you prepare for trial. You file settlement conference statements that ask for the moon and stars because you know you're only going to get a half to a third of what you ask for, so you have to do that. You have to oversimplify because the judge's attention span is not especially great. So you're taking a complex life situation and you're reducing it to cartoon characters of black and white and the clients read this stuff and believe it. Case 10, lawyer 1, entry interview 109-113, units 109-113
For some lawyers, this feeling of discomfort had dogged them for many years. For example,
I struggled to get that adversarial model to begin with. It never felt right. I always felt that I wasn't giving as good service to my clients as I could be giving, but I was forced into it because [that] is what the system required. Field visit, lawyer 8
When I went to my undergraduate school [a teacher told me], "[Y]ou don't want to be a lawyer, that's too mean, you have too nice of a personality…" Case 15, lawyer 2, entry interview, units 35-37
As a result, many lawyers describe embracing collaborative law as enabling a synthesis between their personal and professional values. That was important to them, and they had not experienced it with traditional litigation practice. In a sense, moving to CFL is a process of uncovering and embracing a new professional identity. Legal education and the traditional norms of legal practice have conventionally forced a separation of personal and professional values, where lawyers are sometimes required to subsume personal beliefs beneath overriding professional duties (such as the right of representation, the obligation to follow client instructions and so on). While some lawyers appear to be able to accommodate their value differences in different "zones" of their lives, personal and professional, the consequence for some lawyers is intense dissatisfaction and disillusionment with the practice of law, and high levels of personal stress and distress. Many lawyers in this study told stories about the extreme stress they endured in trial preparation and advocacy, and its disfiguring impact on their own lives and the lives of their clients.One lawyer told us, "I hated taking these things home with me. I really worried about the outcomes. I would be up to 2 a.m. preparing." Field visit, lawyer 2
In contrast, finding collaborative law was a huge relief and the right fit :
[Finding CFL] was like pulling on a warm blanket and saying, "I am home again." Field visit, lawyer 2
At times [in traditional family practice] I felt like I was assisting people, but for the most part I felt I was Prometheus [sic]—rolling a rock uphill. When I found CFL, everything fell into place. Case 7, lawyer 2, entry interview, unit 7
ii. Better client service
For many lawyers, watching their clients' distress compounded their own stress. Some described clients who had killed themselves, and many others talked about the impact of litigation (whether or not ultimately successful) on their clients' lives. For example,
I've seen so many people get damaged in their ability to co-parent, damaged in their ability to do a lot of things, damaged financially… Case 14, lawyer 1, entry interview, unit 89
It is not surprising, then, that many collaborative lawyers also describe their motivations in terms of enabling better and less damaging outcomes for their clients. Indeed, a review of collaborative law Web sites suggests that enhanced client service is the only motivation and sole objective of lawyers who choose to practice collaboratively. Almost all of these groups articulate their mission or objectives in terms of enhanced client service, with little or no mention of the motivation of these lawyers to develop a greater sense of personal or professional satisfaction. This disguises the personal strength and depth of feeling that this study has found underlying the decision to practice collaboratively. Lawyers do not choose CFL simply to offer better client service, such as lower fees, increased hours of availability or additional services; for most collaborative lawyers, moving to CFL is a highly personal and generally value-based decision. While family lawyers may have ample reason to seek out a less stressful and more satisfying approach to practice, there may be some conflation of the personal goals of counsel and the benefits for their clients. There is no necessary tension between these goals, but it is important that lawyers promoting new processes to their clients are open about their own reasons for preferring this approach while keeping their own needs separate from those of their clients.
One of the ways in which lawyers see themselves as providing better service to their clients is by offering a stronger emotional connection and support via the process of collaboration. Some lawyers, at least, are hoping for a deeper level of relationship with their clients. This is one situation that shows why CFL lawyers need to be explicit and open about their reasons for preferring to practice in a CFL model, where their motivation might otherwise not be transparent to the client.
CFL lawyers describe the benefits they see for the client in a variety of ways. Some focus on the benefits for children. They see a clear connection between enhancing the ability of parents to negotiate constructive outcomes together and increasing the quality of parenting that clients will provide to their children. For example,
For me, with all the benefits of CFL, the issue of the children is the one that's still foremost in my mind, because…almost every client I have who has children will tell me in one form or the other that's what matters most to them. And when they're looking back on this 20 years later, it will [be] how their kids emerged from this that's really going to matter to them the most. That's where the greatest benefits can come—if they can find something even as simple as an access schedule that never would have occurred to them, that isn't measured of percentages of hours and days, but measured in terms of real quality [time] with their children, and if they can just get [to] that point of trust where they know that they will voluntarily help each other. Case 14, lawyer 1, entry interview, unit 92-93
Other lawyers talk about the potential of CFL to bring out the best in their clients, with many providing examples of their clients "leaving assets on the table" rather than fighting over every nickel and dime. (Case 13, lawyer 2, exit interview units 28-29; Case 7, lawyer 2, entry interview units 77-78) A number of lawyers recounted four-ways in which the wife would stand up for some interest of her husband, and vice versa. The result can thus be more than simply moving beyond the "damage control" nature of conventional litigation negotiation. (Case 14, lawyer 1, entry interview, unit 90)
Another interesting benefit that CFL might extend to clients that one case in the study suggested, was the capacity to change one's mind without penalty. After six months of negotiations to accommodate a particular objective of one client, an interim outcome (involving the residence and care and control of young children) was "tried out." Following this experience, the client abandoned the original objective and the negotiations recommenced with another outcome in view. It probably would have been impossible to "try out" a solution in a traditional litigation case—the other client's lawyer would have almost certainly advised against it. As it was, the period of "try out" permitted reconsideration and, ultimately, a solution that was far more satisfying to this client:
Having the CFL setting enabled X to make the decisions [they] did in a non-litigious way—including going to Y for an interim period and coming back again.
In litigation…[X] would have been stuck with [their] decision. [CFL] allowed these options to be played out in a safe way. This process allowed [X] to change [their] mind in a way that litigation would not. Case 8, lawyer 1, exit interview, units 19-24
One lawyer who had been through a divorce herself reflected on how she would have preferred to use the collaborative approach in her own divorce. Her description of her divorce evokes a sense that she is motivated by being able to bring a process to her clients that she wishes she could have had for herself and her ex spouse. This is translated in how she now understands her role as lawyer for a divorce client.
I went through a divorce myself several years ago—well, four years ago. And I just thought, it's such an emotional time and I'm suffering so much. And I wish[ed] that this process was available to me in [X location], after I'd learned about it, because I thought this is perfect, because people are already just hemorrhaging with their emotions and we're flipping from anger to guilt to sorrow to all kinds of emotions. And I thought why should attorneys get involved and turn these parties into war people, instead of just getting them through the process and the transition period?Case 15, lawyer 2, entry interview, unit 33
For a smaller group of lawyers, there is a quasi-evangelical quality to their embrace of CFL. These lawyers use the language of religion to explain their adoption of CFL and the potential benefits to their clients. For example,
CFL is a means of saving one [the client's] soul. Field visit, lawyer 18
iii. Offering a better alternative to family mediation
Finally, some lawyers expressly referred to their earlier experiments with mediation as a precursor to CFL, and described CFL as a better alternative that enables them to use their mediation training. Certainly, some collaborative lawyers were attracted to mediation 10 or more years ago, but they did not find that it offered sufficient opportunities to change the direction of their litigation practice or to practice their new skills. A typical description of the link between CFL and mediation comes from a lawyer who describes her growing frustration over the years with traditional family practice:
[O]f course, I trained as a mediator and worked in that area as well. When CFL came around as an additional option, I was eager to try that as well, because it just seemed to me that we need all the tools we can [get] to try to find other solutions. And it seemed to fill some areas that mediation wasn't able to fill and really seemed to have the same benefits [as] mediation, and yet in a somewhat different environment. Case 14, lawyer 1, entry interview, units 18-20
There is a pervasive sense among CFL lawyers that collaborative practice is a more complete dispute resolution option for clients than mediation because it incorporates expert legal advice. This perception is apparently driven by an assumption that lawyers are generally excluded from the negotiation process in family mediation. This point and other reasons given for preferring mediation to CFL are discussed further in section 10 of this report.
Clients were also asked at the beginning of their collaborative case to describe their motivations for choosing CFL over litigation or mediation, and their objectives and expectations for the process. A variety of answers were offered, but their dominant themes were quite different from those of the lawyers, outlined previously.
Many clients first described their reasons for seeking an alternative to litigation, frequently citing expense but also referring to what they believed to be the emotional and moral consequences of litigation. A number talked of being frightened by the idea of litigation, a sentiment underscored by their lawyers. The most graphic description of the potential for harm caused by using litigation came from a client who talked of the "demons" that got unleashed in the process of separation and divorce:
[Litigation] would feed the demons raw meat and work them into a frenzy. Case 10, client 2, mid-point interview, unit 36
The same client continued,
Litigation provides a battalion of troops for vindication. Case 10, client 2, mid-point interview, unit 39
A number of clients simultaneously acknowledged that the aggressive nature of litigation also held some attraction, emotionally and practically. The client quoted above described litigation as "painful but easy," suggesting that litigation felt like a more predictable and ultimately controllable process than face-to-face negotiations. (Case 10, client 2, mid-point interview, unit 33) Another client commented that it would be easier to hire an adversarial lawyer and "write a big cheque and pull the trigger," but that this would not enable the type of future relationship he sought with his ex-spouse regarding his children. (Case 15, client 2, mid-point interview, unit 36)
Another client recognized the potential of traditional representation to provide a surrogate for her anger, while also acknowledging that there would be longer term consequences to taking this route:
[Litigation] allows that anger—the lawyer then becomes your surrogate angry person and that's okay. I mean, that feels emotionally good at the time, but I think in the long run I'm not sure about it. Case 11, client 1, mid-point interview, unit 325
Another client commented,
I did not want to be in the regular adversarial process, where people hide behind their lawyers. Case 14, client 2, mid-point interview, unit 16
Further to these emotional reactions to the prospect of litigation, the most commonly articulated motivations for choosing CFL over litigation are described in the following sections.
i. Reduced expense and speedier results
A large number of clients had clearly been attracted to CFL by the pitch of their lawyers that it would be a less costly and faster path to resolution—and closure, as discussed below—than traditional litigation or lawyer-to-lawyer negotiation using court documents. (Case 14, client 2, mid-point interview, units 13-15; Case 16, client 1, entry interview, unit 12; Case 7, client 1, entry interview, unit 5) While these were frequently voiced expectations at the outset of the collaborative process, there were ultimately widely differing degrees of satisfaction among clients regarding the achievement of these goals (see discussion in section 9 of this report).
ii. Responsibility for role modelling
An equally common comment clients made about their choice of CFL was that the collaborative process would enable parties with children to separate in the most amicable and least destructive way. These clients saw themselves as modelling "good" behaviour for their children and envisaged the collaborative process as a way to prevent either or both spouses from descending into the abyss of acrimonious litigation. To some extent, fear of the consequences of litigation drove this group to choose CFL. For example,
It seemed like for the children it was better if we were less adversarial, because it would just make life more complicated at home. Case 11, client 1, entry interview, units 54-44
The spouse in this case echoed these sentiments. And they showed up in another case:
[X] and I felt in our best interests that we want to keep our son in the forefront, that we don't want this turning into what I call a blood bath, that he doesn't get involved. Case 2, client 1, entry interview, units 23-25
One client explicitly described his motivation in terms of how his children would judge him:
My mindset for this process was, I never want to have any circumstance happen in the future where…my children would come to me and say, "You know, Dad, you really weren't fair with Mom." Case 9, client 2, entry interview, unit 51
Another client saw the process as a way of easing the distress for children who were watching their family break apart and its relationships re-orient:
"We [my ex-spouse and I] don't have to be buddy buddies, but we don't have to be at each other's throats. The kids are young, they just want to be a family, they think that we both should be there." Case 5, client 1, entry interview, units 178-179
In another case, both spouses saw a negotiated process as the best means to preserve an important step-parenting relationship.
I have two kids and my current spouse literally became their mother—in fact, they call her Mom. I have a moral and ethical responsibility to maintain that relationship and I think that collaborative law could help avoid an ugly situation and we could come out in a good spot on the other side of the divorce. Case 13, client 2, entry interview, units 6-7
It is important to note that there was only one case in the study that did not involve children, either young or grown. In two cases, custody (and possible relocation) was a primary and highly contentious issue. In six cases, the children of the marriage were either grown and living away from home, or older teens. In these cases, there was often reference to the importance of modelling appropriate and dignified behaviour as the family reconfigured itself.
iii. Personal growth
Along with a sense of responsibility toward their children, both younger and grown, some clients also spoke of a search for personal healing and even growth as they moved through the process of separation and divorce. Many different levels of awareness were expressed. Some clients expressed only pragmatic motivations, such as cost and rapid resolution. As one put it explicitly, "This is a struggle, not a growth." (Case 8, client 2, entry interview, unit 11)
Others, however, carefully assessed what they needed to get out of a process that would enable them to have their say, be heard and move on. For example,
I don't want this [the divorce] to change me. I don't want this to make me bitter. So I think this is the best process so that you don't become bitter. I don't want to be an angry person and I think this will be helpful. Case 10, client 1, entry interview, units 543-544
I like the idea of no fighting. Bypass the fighting and let's get to it. It's going to happen anyway, you know. It's not a nice process but it's happened, so let's get to the other side where I can heal. Case 5, client 1, entry interview, units 158-161
One client who initiated the divorce said that a reason to use CFL was to lessen his sense of guilt:
I feel very badly about this and hope this [CFL] will be a more bearable process. Case 16, client 1, entry interview, unit 12
One client—who was also working with a coach—mentioned her need to speak about issues in her marriage in the presence of others in the four-ways (she described them as "witnesses to the dynamics.") (Case 6, client 1, entry interview, unit 46) She hoped doing so would validate what she felt and experienced and help her to feel stronger.
For another group of clients, personal growth meant closure. The collaborative process was seen as a pathway to a new beginning, enabling a practical and legal closure as well as an emotional and perhaps moral one. As one put it, "[I am] past the blaming stage and the emotional stuff and just want out." (Case 7, client 1, entry interview, unit 5) Another commented, "I didn't come here to get my marriage fixed…by the time I was here, I was just wanting it to be over." (Case 3, client 1, entry interview, unit 554, 560)
Just two cases of the 16 included other collaborative professionals as full team members, and in each case these were therapists. These individuals were included in interviews for these two cases and asked to describe how they saw their role. Their answers were very consistent, and consistent also with field visit interviews conducted with therapists the previous year in Atlanta and Vancouver.
Each therapist saw his or her role as providing personal support for each spouse, offering spouses a skilled person whom they could grow to trust and who could help them to deal with their emotions in four-ways with their lawyer and with their spouse. One therapist expressed this idea in more spiritual terms, describing herself as "a spiritual guide," whose aim was to protect her client from harm. She adopted the CFL process because, unlike other processes, it provides ways of protecting the individual from greater harm. (Other collaborative professional, interview 20, units 13-15)
Lawyers set the tone for objectives and expectations in the 16 cases in the study, even when other experts were involved as advisors or as team members (see the previous section). Reviewing what clients said about their goals and hopes for the collaborative process, alongside lawyers' responses to the same query, reveals some interesting, if predictable, contrasts.
Clients generally took a far more pragmatic approach to their use of CFL than their lawyers did. Lawyers were more likely to describe loftier goals that, for some, bordered on an ideological commitment. This difference was understandable, given the fact that clients were describing how they would deal with a life crisis, and lawyers were describing how they saw CFL as better meeting client and personal needs for a fair and dignified process. Clients also had a wider range of perspectives than lawyers did. Lawyers tended to describe very similar goals and expectations. On the other hand, many clients were clearly most concerned about cost, time and simply finding closure, while a smaller number saw the collaborative process as something of a spiritual journey.
This contrast in emphasis between lawyers and clients, while not unexpected, does raise two immediate concerns. The first is that, sometimes, clients who signed on for CFL largely because of the promises of speedy and inexpensive dispute resolution are bitterly disappointed with their final bill and disillusioned by how long it has taken for them to reach a resolution.
CFL is being widely marketed as faster and less expensive than litigation. Many CFL clients, however, express frustration with the length of time the collaborative process takes to get into the substantive issues. Some complain that their partners are using the process to avoid making decisions, and that their lawyer neither warned them of this possibility nor is willing to take steps to hurry up the other side. Related to the issue of timing is the question of cost. Some high-conflict CFL cases absorb large amounts of professional time and energy, resulting in fees of $20,000. While these cases would cost far more if they were tried before a judge, the more realistic comparison is with lawyer-to-lawyer negotiation. Whether CFL proves to be cheaper and faster in such cases is still unproven. Although some lawyers are undoubtedly wiser than others in creating and managing expectations, the CFL movement should generally be cautious in making such claims and especially when using them as a basis for obtaining consent to participate in CFL. (See also section 8(B) of this report.)
A second issue concerns how transparent lawyers are being about their personal, value-based commitment to CFL, and to what degree they assume that their clients embrace their values in this respect. There may be a case for encouraging CFL lawyers to be more open with their clients about why they prefer collaborative practice and to explain their own values related to the collaborative process. As mentioned above, these personal values rarely appear in literature produced by collaborative groups, which concentrates on benefits (in terms of time, cost and relationships) to the client. While addressing client benefits should be lawyers' primary focus, it would be appropriate for lawyers to find a way to briefly explain their own values regarding collaboration and its intrinsic norms at the outset of the process. This discussion may lead to a further conversation in which lawyers and clients can check each other's assumptions.
This openness on the part of collaborative lawyers could help to diminish the major problem that arises from an apparent mismatch of lawyer and client expectations and goals in a minority of CFL cases. Many of the negative comments clients made in the case studies could be attributed to a failure to clarify the relationship between the clients' goals and values, the interests of the whole family and the family transition values of their lawyers. These clients expressed some discomfort, surprise or even disappointment with their lawyers' advocacy as their cases progressed, especially if they reached an impasse or did not progress as rapidly as they had expected. (Case 8, client 2, mid-point interview, units 41-43; Case 11, client 1, mid-point interview, units 215-222; Field visit, client 11) There is a sense that, sometimes, lawyers imagined that their clients had bought into the lawyers' values regarding healthy family transitions, even though the lawyers had not made these values explicit to the clients nor sought the clients' own perspectives on these values other than in the most superficial way (for example, by confirming that clients would prefer not to go to court and fight with their ex-spouse).
Due to the apparent mismatch in expectations and objectives between some clients and their lawyers, CFL lawyers may assume an ideological commitment on the part of their clients that is not really there. There is a risk that lawyers may sometimes be imposing their own motivations onto clients who are simply trying to get their divorce completed quickly and inexpensively. This is likely to create particular problems in cases that are acrimonious and require significant concessions on each side. Some lawyers are trying to ensure that they communicate clearly with their clients about values and goals, and that in their eagerness to promote CFL they do not paint an unrealistic picture of what is to come. Just because CFL may be preferable to litigation, it may still hurt—both emotionally and financially. The lawyer below recognized this problem and was already struggling to manage it:
I try to say to them, "Don't imagine it will be painless." It would be easy for [some clients] to lose faith in the process because, even though I think they know at some level the other thing is worse…they just didn't expect this to be so hard … it reminds me to prepare people sometimes for the fact that this can get very hard in a different way and hard in a more gnawing, painful way, like a funeral is hard—not as hard as a sort of undignified court way but, still, I wouldn't be surprised if they've experienced some of the…worst moments in their lives in the middle of this process. Case 14, lawyer 1, entry interview, units 107-111
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