The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases
It has already been noted that the structure of CFL enables formal negotiations to begin somewhat earlier than they typically occur in regular litigation-focussed family cases, with the first four-way scheduled as soon as possible rather than in response to an upcoming court date. However, removing the pressure of a court-managed schedule has other ramifications. With negotiations removed from any case management requirements or constraints imposed by the court or other parties' pre-trial motions, the process sometimes slows down further than one or both parties desire. CFL lawyers generally acknowledge that the collaborative process proceeds "at the speed of the slowest participant." (Case 12, lawyer 2, entry interview, unit 249) This allows the party who does not wish to move to closure—often the party who is most emotionally unprepared for the divorce—to stall without external pressure, other than whatever opposing counsel chooses to bring to bear. This may raise problematic legal issues in custody cases, where the stalling party wishes to establish a pattern of custody, or in relation to the date of a divorce agreement for the purpose of calculating assets. More generally, it can result in a strong sense of disempowerment for the party who wishes to move faster. One party may become frustrated with a process that seems to pander to the other spouse's unwillingness to make a final decision. This client may feel left to make all the offers with little or no pressure being placed on the spouse to respond in a timely fashion:
I didn't want to have to be the bull, but it turned out I did have to be the bull. I wanted…an advocate there to turn to me and say, [D.], what is it that you really want? or to say, This is what you told me, so that…my wife, who is extremely equivocating, would be helped to actually say what she is meaning. [T]he problem was there was none of that. It took probably three extra sessions to make a decision. I would present a proposal, there would be a Maybe, then we'd go off and wait, and then we'd come back, and the Maybe turned into a No. Then I would make another proposal. And that dynamic was awful. Site visit, client 11
A number of other CFL clients expressed frustration with four-ways that appeared to be making slow and minimal progress. In particular, CFL clients sometimes became impatient with what they saw as needless time and energy spent outlining the procedural dimensions of CFL, reviewing the participation agreement and developing a good negotiation climate. They wanted to get on with the substantive discussions. For example, one client stated, "I'm frustrated with the pace of the process…There's been a lot of time [spent] on the process rather than on dealing with and getting through things." (Case 3, client 1, entry interview, unit 437)
Creating sufficient trust between parting spouses to engender a cooperative climate for bargaining takes time. It may be necessary for CFL lawyers to more explicitly forewarn their clients that the first few four-way meetings are unlikely to produce substantive results.
Without the external time pressures imposed by the court—pressures that many lawyers and clients recognize as often unhelpful and stressful—CFL lawyers need to look for alternate means of ensuring that a negotiation process proceeds at a pace that meets some minimal requirements for both parties. When faced with indecision or intransigence, clients may conclude that the CFL process is too open ended and waver in their commitment to the collaboration that CFL entails.
The promotion of CFL as a less costly alternative to regular negotiation-litigation will probably, over time, be justified. It makes sense that eliminating procedural steps, court disbursements and the ritual of asynchronistic negotiation will reduce costs to the client. However, at this time, not enough CFL cases have been studied to conclusively state that this is the case.
The difficulties in making this assertion for CFL are the same as for mediation. There are numerous methodological challenges. First, it is difficult to maintain an average cost rate for a divorce file, since each is unique and has its own idiosyncrasies (both anticipated and unanticipated). Second, the type of expertise included in a collaborative process directly affects the final cost, and it will always be arguable whether such expertise averts problems in the negotiation. Third, the quality of the outcome—for example, its durability and, in particular, the future relationship between the parties—is very difficult to factor into the eventual value of the outcome relative to its monetary costs.
In a few cases in the study, fees became contentious, largely because of unclear expectations or unexplained assumptions. One practice highly susceptible to dispute is that of billing the client for all discussions that take place between members of the collaborative team, including conversations between lawyers and divorce coaches. Such charges need to be clarified with the client at the outset, and limits may need to be placed on the extent of this type of reporting billing. Larger-than-expected fees are, of course, directly related to longer-than-expected times to reach resolution (see the previous discussion). A regular review of costs to date and other options might be appropriate in longer files. Inevitably, there is something of an entrapment effect when a disqualification agreement is in effect. If the client starts over with another lawyer in a litigation process, the money spent to date is seen as largely wasted. (Case 8, client 2, mid-point interview)
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