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

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Endnotes

• [1] The Web site of the International Academy of Collaborative Professionals lists 22 groups in Canada and 101 in the U.S., as well as groups in the U.K. and Austria. See http://www.collabgroups.com (last visited on Nov. 11, 2004).

• [2] Julie Macfarlane, "Culture Change? A Tale of Two Cities and Mandatory Court-Connected Mediation" (2002) J. Disp. Resol. 241 [hereinafter Macfarlane, "Culture Change"].

• [3] John L. Barkai & Gene Kassebaum, "Using Court-Annexed Arbitration to Reduce Litigant Costs and to Increase the Pace of Litigation" (1989)16 Pepp. L. Rev. 45.

• [4] "The prisoner's dilemma" refers to a classic gaming problem in which two friends are held in adjoining cells and questioned by police. The dilemma each faces is whether to give evidence against his friend or to stay silent and hope that his friend does also. Essentially, the choices are between taking the risk of "cooperating" (saying nothing to the police) and "competing" (turning in his friend before his friend does the same to him). This gaming model has been the subject of numerous experiments on the negotiation process. For more discussion and application of the prisoner's dilemma, see Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984). For discussion in the context of negotiation, see David Lax & James Sebenius, The Manager as Negotiator (New York: New York Press, 1986) 29—45. For discussion in the context of legal negotiations, see the analysis in Ronald J. Gilson & Robert H. Mnookin, "Disputing through Agents: Cooperation and Conflict between Lawyers in Litigation" (1991) 94 Colum. L. Rev. 509.

• [5] Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass.: Belknap Press, 1993).

• [6] Milton Heumann & Jonathan M. Hyman, "Negotiation Methods and Litigation Settlement Methods in New Jersey: ‘You Can't Always Get What You Want'" (1997)12 Ohio St. J. on Disp. Resol. 253.

• [7] See Judith Wallerstein & Sandra Blakeslee, Second Chances: Men, Women and Children a Decade after Divorce (New York: Ticknor & Fields 1988); and Judith Wallerstein & Joan Kelly, Surviving the Breakup (New York: Basic Books, 1980). Some of the gloom of these earlier analyses was tempered by research on how to make healthy family transitions. SeeEileen Mavis Hetherington, "Coping with Family Transitions: Winners, Losers and Survivors" (1989) 60 Child Development 1. See also Eileen Mavis Hetherington, Adolescent Siblings in Stepfamilies: Family Functioning and Adolescent Adjustment (1999) Monographs of the Society for Research in Child Development, Volume 64, Issue 4, December 1999. Healthy family transition does not often include acrimonious litigation. For a useful review of the literature, see Rhonda Freeman, "Parenting after Divorce: Using Research to Inform Decision-Making about Children" (1998) 15 Canadian J. Fam. Law 79.

• [8] In Canada, from 1993—94 to 2002—03, the number of approved civil legal aid applications (the large majority being for family law) dropped from 386,617 to 247,536, a 36-percent decrease. See Canadian Centre for Justice Statistics, Legal Aid in Canada, Resource and Caseload Tables 1997—98, in Catalogue No. 85F0028XIE, Table 10 (1999);and Canadian Centre for Justice Statistics, Legal Aid in Canada, Resource and Caseload Statistics 2002—03, in Catalogue No. 85F0015XIE, Table 12 (2004).

• [9] For example, provision of legal aid for divorce applicants in Ontario has dropped significantly over the past decade. The Ontario Legal Aid Review reported that "in 1996—97 the Plan issued only 14,063 family law certificates… The contrast with previous years is striking. In the fiscal year 1993—94, 65,691 family law certificates were issued in the province. The number of family certificates has dropped to levels not seen since 1970." See Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Services, Vol. 1 (Toronto: Government of Ontario, 1997).

• [10] See Joan Brockman, "Leaving the Practice of Law: The Wherefores and the Whys" (1994) 32 Alberta L. Rev. 116 (which provides statistics on attrition rates for Alberta practitioners and shows that women leave the profession in greater numbers than men); and Leonard L. Riskin, "The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students, Lawyers, and Their Clients" (2002) 7 Harv. Negot. L. Rev. 1, 10—23 (which identifies some of the reasons for high rates of depression among lawyers as a lack of job satisfaction, a professional approach that does not connect to clients' real needs and the "limited mind-set" of problem solving encouraged by legal education).

• [11] For example, Maine adopted mandatory divorce mediation in 1984 and lawyers have always been welcomed into the process. However, in New Hampshire, mediation is seen as an alternative to litigation; lawyers are discouraged from participating in it and prohibited from acting as mediators themselves. SeeLynn M. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (New York: Oxford University Press, 2001) at 75; Craig A. McEwen et al., "Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation" (1995) 79 Minn. L. Rev. 1317. See also infra Part VII.D.

• [12] See Ontario Code of Professional Conduct, Ch. 3; Minn. Gen. R. Prac. 114.02 (b).

• [13] The CPR Institute for Dispute Resolution offers members a corporate pledge under which they undertake to "seriously explore negotiation, or alternative dispute resolution cases with other signatories before pursuing full-scale litigation." CPR claims 4,000 corporate signatories and 1,500 law firm signatories. See www.cpradr.org. A similar scheme exists in the U.K., sponsored by the Centre for Effective Dispute Resolution, which also provides model ADR contract clauses drafted by lawyers from leading commercial law firms. See www.cedr.co.uk.

• [14] Robert Fisher, "What about Negotiation as a Specialty?" (1983) 69 A.B.A. J. 1220.

• [15] For a brief description and rationale, see John J. McCauley, The Role of Specialized Settlement Counsel, www.mediate.com/mccauley (last visited on Feb. 15, 2004).

• [16] William F. Coyne, Jr., "The Case for Settlement Counsel" (1999) 14 Ohio St. J. on Disp. Resol. 367.

• [17] For a description of the work that would need to be done to create a broader ADR culture within a law firm, see CPR Institute, supra note 13.

• [18] See http://www.collabgroups.com.

• [19] Virtually all collaborative cases thus far have been in the family law area. Some instances of the use of collaborative retainers have been reported in employment cases (in Cincinnati, Ohio–Collaborative Law Center, 8 West Ninth Street, Cincinnati, OH 45202-2036) and estates cases (in Medicine Hat, Alberta–Association of Collaborative Family Lawyers of Medicine Hat, Alberta, c/o Pritchard & Company LLP, 430 Sixth Avenue SE #204, Medicine Hat, Alberta T1A 7E8).

• [20] Todd Sholar, "Collaborative Law–A Method for the Madness,"(1993) 23 Memphis St. U. L. Rev. 667.

• [21] Robert W. Rack, Jr., "Settle or Withdraw: Collaborative Lawyering Provides Incentive to Avoid Costs of Litigation" Dispute Resolution Magazine (Summer 1998) at 8.

• [22] For example, the membership of the International Academy of Collaborative Professionals (IACP) doubled in 1993 and is expected to double again in 2004. In 2001, there were approximately 25 collaborative groups in Canada and the U.S. Now there are 123 listed on the IACP Web site http://www.collabgroups.com.

• [23] There has been much speculation about the extent to which economics dictate choices by lawyers to use or resist innovative processes. Craig McEwen & Nancy Rogers, in their studies of Ohio lawyers and corporations, examine the claim that lawyers will resist mediation because of their desire to maximize fees. McEwen and Rogers conclude that there is little evidence for this claim, although economic disincentive cannot be discounted as a reason for lawyer reluctance to use mediation. Craig A. McEwen and Nancy H. Rogers, "Employing the Law to Increase the Use of Mediation and to Encourage Direct and Early Negotiations" (1998) 13 Ohio St. J. on Disp. Resol. 831, 846—47. In a further study of divorce lawyers in Maine and New Hampshire, McEwen et. al. suggest that divorce lawyers characteristically seek personal satisfaction and that their professional choices and dispute resolution preferences cannot be explained simply in terms of economic gain. See Mather et al., supra note 11 at 133—56.

• [24] It is important to realize that the word idealas used by Max Weber refers only to the conceptual nature of the "types" and does not suggest in any way the other, now more common, sense of "ideal": as a desirable or even perfect "type" of something. Max Weber, The Protestant Ethic and the Spirit of Capitalism 1904/1930, translated by Talcott Parsons (New York: Routledge, 1992). I have used this device in other research-based writing; see Macfarlane "Culture Change?" supra note 2 at 253—254.

• [25] See the discussion on this point in relation to mediation advocacy in Macfarlane, "Culture Change?" supra note 2 A Tale of Two Cities and Mandatory Mediation" 2 Journal of Dispute Resolution (2002) 241 at 259—260.

• [26] For an explanation of the "prisoner's dilemma," see supra note 4.

• [27] The case study methodology developed for this study assumed that individual experiences and needs in divorce were personally and situationally unique. Meaningfully matched control groups were not possible in this environment.We already had significant research resources on the impact of litigation on adults and children, which provided a comparative context for these findings. See supra note 7.

• [28] In 2001—02, Year One of the study, interviews were conducted with 46 CL lawyers, 11 CL clients and 11 other collaborative professionals (such as coaches and financial planners). These are identified herein as the Field Site Visits. I would like to acknowledge the work and skill of Beth Beattie (then a candidate for the LL.M. at Osgoode Hall Law School), who interviewed lawyers and clients during Year One of this study and also worked with me to develop the format for the structured interviews for Year Two.

• [29] Cristin Schmitz, "Kinder, gentler divorce alternative sweeping Canada: Lawyers praise system: ‘Collaborative' split easy on emotions, wallet and it's faster" National Post (March 4, 2002) A6.

• [30] There was an effort to add Regina, Saskatchewan, as a fifth pilot site. However, the pool of cases in 2002 was too small for study. One case from Regina was included in the study, and in this case the couple reconciled after two four-way meetings.

• [31] Four cases were studied in each of the following cities: Medicine Hat, San Francisco and Vancouver. There were also three cases in Minneapolis and one in Regina, making a total of 16 case studies. See also the further discussion of the case studies in the "Methodology" section, later in this report.

• [32] I would like to acknowledge the work and skill of Michaela Keet (professor of the College of Law, University of Saskatchewan) and Ursula Miletic (law student of the Faculty of Law, University of Windsor), each of whom interviewed some of the clients and lawyers involved in the case studies, using the interview templates we had developed.

• [33] See a number of studies, such as G.A. Benjamin, E.J. Darling & B. Sales, "The Prevalence of Depression, Alcohol Abuse and Cocaine Abuse Among United States Lawyers" (1990) Int'l J.L. and Psychiatry13. Susan Daicoff has written extensively on both the prevalence and the impact of widespread depression, alcoholism and suicide among lawyers. See, for example, Susan Daicoff, "Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism" (1997) 46 Am. U. L. Rev. 1337.

• [34] It is noteworthy that a significant factor in reducing stress for lawyers in CL appears to be the shifting of responsibility for resolving the conflict. See the further discussion in section 5 of this report.

• [35] See, for example, the Collaborative Law Center of Atlanta www.collaborativelawatlanta.com; the Minneapolis Collaborative Law Institute www.collaborativelaw.org; and the Collaborative Law Center, Cincinnati www.collaborativelaw.com.

• [36] Other developments reflect lawyers' desire to derive greater personal satisfaction from legal practice. For example, the International Alliance of Holistic Lawyers promotes itself in terms of personal goals for lawyer members, in contrast to CL groups, which tend to promote themselves as offering benefits to lawyer members' clients. These two goals are, of course, compatible, but it may be important for CL lawyers to be more open about their personal benefits, as well as the benefits they claim accrue to clients, in promoting the CL process.

• [37] Informally, many CFL lawyers have spoken to me about their own distressing experiences with divorce. This is clearly not an unusual motivator.

• [38] This statement is evocative of the True Believer lawyers, who see mediation as the solution to all litigation files. See Macfarlane, Culture Changesupra note 2 at 256.

• [39] This was a common feature of the early marketing of CFL. See, for example, the Web site of the Collaborative Law Center of Atlanta, at www.collaborativelawatlanta.com. While making intuitive sense, the "faster and cheaper" assertion is reminiscent of the marketing of mediation, which, like CL, still lacks clear data confirming these claims. Some CL groups are becoming more guarded about these claims, stating that "in our experience," CL is faster and less expensive than litigation. See the Collaborative Network www.collaborative-law.ca/index.htm.

• [40] Robert Rack, Settle or Withdraw? Collaborative Lawyering Provides Incentive to Avoid Costly Litigation, at <www.collaborativelaw.com>. The need for a DA is still hotly debated. See John Lande, "Negotiation: Evading Evasion: How Protocols Can Improve Civil Case Results" (2003) 21 Alternatives to High Cost Litig. 149 and the discussion in section 4(E) of this report.

• [41] Note that, increasingly, divorce cases involve only one attorney–when the lawyer acts for both parties or when one side is self-represented. SeeCraig McEwen et al., "Lawyers, Mediation, and the Management of Divorce Practice" (1994) 28 Law and Soc'y Rev. 149, 179—80.

• [42] Value-claiming negotiation assumes that competition is over fixed resources and that more for one negotiator must mean less for the other (a classic zero-sum analysis). To be effective at value claiming, a negotiator must be tenacious and will not welcome accommodation. For a discussion of the dominance of this style of bargaining in legal negotiations, see, for example, Clarke et al., Court-Ordered Civil Case Mediation in North Carolina: Court Efficiency and Litigant Satisfaction, Institute of Government, University of North Carolina (1995); Hazel G. Genn, Hard Bargaining, London Clarendon (1987); and Carrie Menkel-Meadow, Lawyer Negotiations, Theories and Realities - What we Learn from Mediation (1993) 56 The Modern Law Review 361.

• [43] Macfarlane, Culture Changesupra note 2 at 265—266.

• [44] Macfarlane, Culture Changesupra note 2 at 273. See also Learning from Experience: An Evaluation of the Saskatchewan Queen's Bench Mediation Program (Saskatchewan Justice, April 2003) and Julie Macfarlane & Michaela Keet, "Civil Justice Reform and Mandatory Civil Mediation in Saskatchewan: Lessons from a Maturing Program,"(2004) Alberta L. Rev. (forthcoming).

• [45] For a classic description of bargaining tactics in the context of personal injury (insurance) cases, see Genn; supra note 42 at 134—37.

• [46] See Axelrod, The Evolution of Cooperation supra note 4. This strategy is reminiscent of Axelrod's tit-for-tat strategy, in which one negotiates cooperatively unless and until the other side defects from this strategy–in which case, one responds in kind.

• [47] This refers to the first two four-ways, which are generally used for information gathering.

• [48] Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution in Divorce without Litigation (American Bar Association, 2001).

• [49] Mather, McEwen, and Mainman describe the "‘communities of practice'–geographic, client-based, and substantive–which anchor individual divorce lawyers to a set of informal norms and etiquettes." See Mather et al., supra note 11 at 41—48.

• [50] Ibid.

• [51] Laura Nader, "Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology" (1993) 9 (1) Ohio St. J. on Disp. Resol. 1.

• [52] However, it may be that clients conflate the idea of fair and legal.

• [53] See Lande, supra note 40.

• [54] The CPR Pledge to work cooperatively to resolve disputes using ADR processes has been signed by more than 800 companies. See www.cpradr.org and supra note 13.

• [55] See Lande, supra note 40.

• [56] Fisher, supra note 14.

• [57] William H. Simon, "Lawyer Advice and Client Autonomy: Mrs. Jones's Case," in Deborah L. Rhode, ed., Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation (New York: Oxford University Press, 2000) 165.

• [58] See John Lande, "Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering" (2003) 64 Ohio St. L.J. 1315 and L. Terry, Informal opinion letter for the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility (on file with the author).

• [59] Macfarlane, Culture Change, supra note 2 at 302.

• [60] Ibid. at 305.

• [61] See Model Code of Professional Responsibility Canon 7 (1969); Model Rules of Professional Conduct Preamble (2003).

• [62] William H. Simon, The Practice of Justice (Cambridge: Harvard University Press, 1998) 8.

• [63] Kronman, supra note 5 at 146—48. On the problem of "cognitive dissonance," see Simon supra note 57 at 68—69.

• [64] Kronman, supra note 5 at 62—74.

• [65] Mather et al, supra note 11, at 115.

• [66] Roger Fisher and William Ury, Getting To Yes, 2d ed. (New York: Penguin Books, 1991).

• [67] The concept of representing the client as his or her "highest functioning self" has been developed by Pauline Tesler and is described in Tesler,supra note 48, at 30—32.

• [68] See also the discussion earlier in this report, in section 4(D).

• [69] This is reminiscent of the claims of transformative mediation. See Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation (San Francisco: Jossey-Bass, 1994). Transformative mediation argues that real conflict resolution and its benefits come only from the exchange of empowerment and recognition between the disputants. Ibid. at 84—95.

• [70] Freeman, supra note 7.

• [71] Of course, advocates of the team approach argue that, over the long term, working with both a lawyer and a coach enhances the potential for a fair and durable outcome and hence may, in fact, reduce overall costs. It is difficult to test this assertion without a greater volume of team cases to study.

• [72] Although one lawyer reached this conclusion earlier than the other did, both appeared to concur by the time the case ended.

• [73] See also comments made to me informally by lawyers in the past 12 months.

• [74] Carrie Menkel-Meadow, "Lawyer Negotiations: Theories and Realities–What We Learn from Mediation" (1993) 56 Modern Law Review 361.

• [75] For example, what would you do if your client revealed information to you privately that you thought should be disclosed to the collaborative team? The response was generally that the lawyer would withdraw if he or she could not persuade his or her client to offer up such information. In practice, it seems more likely that the lawyer and client would negotiate over time about what form of the information might be disclosed to the other side, whether it was relevant and so on. Moreover, in some cases, the CL lawyer might not be aware of information that the client was holding back. This study has not yet come across a single case of a lawyer withdrawing for this reason.

• [76] For a parallel in mediation practice, see Julie Macfarlane, "Mediating Ethically: The Limits of Codes of Conduct and the Potential of a Reflective Practice Model" (2002)40 Osgoode Hall L. J. 49.

• [77] In Medicine Hat, Alberta, almost all members of the local family bar now offer CL as the first option to clients, which could raise concerns about client choice.

• [78] Sherri Goren Slovin & Mary Triggiano, "The Importance of Screening for Domestic Violence in the Collaborative Family Law Case" Legal Action of Wisconsin, Inc. Also, adapted from American Medical Association, Diagnostic and Treatment Guidelines on Domestic Violence (1992).

• [79] See also section 4(C).

• [80] Cincinnati Collaborative Family Lawyers Participation Agreement, www.collablaw.com/cincinnati.

• [81] From the original Stu Webb retainerletter on file with the author.

• [82] Collaborative Family Association of Ontario, Toronto Group, suggesting a typical provision at www.collaborativefamilylawassociation.com.

• [83] See Lande supra note 58 at 1341—1342.

• [84] Carrie Menkel-Meadow, "Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities" (1997) 38 South Texas Law Review 407 at 423.

• [85] See, for example, the retainer agreement of Nancy Cameron of the Vancouver Collaborative Group, which is quite typical and states, "I shall have the right to withdraw from your case if you… misrepresent or fail to disclose material facts to me, or if you fail to follow my advice."

• [86] See, for example, the participation agreement of the Tampa Bay Collaborative Group at www.collaborativedivorce.homestead.com/Agreement, which states that "The parties will be required to sign a sworn financial affidavit making full and fair disclosure of the income, assets and debts."

• [87] As the participation agreement of the Tampa Bay Collaborative Group phrases it, "To maintain an objective and constructive settlement process, the parties shall discuss settlement of their dissolution issues only in the settlement conference setting." See www.collaborativedivorce.homestead.com/Agreement.

• [88] The same observation is often made by both clients and their lawyers about their early meetings in CL. It is also important to note that a significant number of CFL clients complain about lack of sufficient progress at one or more times during their CFL case. For discussions of autonomy and paternalism, see Kronman, supra note 5, at 121—34.

• [89] For a discussion of the contrast between a jurisdiction that has welcomed lawyers into mediation and as mediators (Maine) and one that has discouraged lawyers' participation in mediation (New Hampshire), see Mather et al., supra note 11, at 75-76. For further discussion of the usefulness of lawyers' participation in mediation, see Susan W. Harrell, "Why Attorneys Attend Mediation Sessions" Mediation Quarterly (summer 1995) at 369; Craig McEwen et al., "Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation," (1995) 79 Minn. L. Rev. 1317; McEwen et al., Divorce Practice, supra note 41.

• [90] This particular model of family mediation is also evident in Internet and other material provided about CL. For example, the Web site of the Collaborative Divorce Lawyers Association (Connecticut), at www.collaborative-divorce.com (last visited Jan. 18, 2004), under the heading "Collaboration and Mediation Compared," states as follows: "In mediation the parties advocate for themselves while often using the services of consulting attorneys outside the mediation sessions…In the collaborative setting, the parties are never ‘on their own'; each party is fully and individually represented throughout the process."

• [91] However, moving the process and outcome away from the control of the parties and under control of their attorneys is the very danger that some mediators see in the CL process. See Gary Friedman, "Commentary on Mediators and Collaborative Lawyers" Collaborative Review (fall 2002) at 14.

• [92] See Pauline Tesler, "Mediators and Collaborative Lawyers: The Top Five Ways That Mediators and Collaborative Lawyers Can Work Together to Benefit Clients," Collaborative Review (fall 2002) at 12.

• [93] However, this suggestion has been made by at least one mediator working regularly with collaborative attorneys. See Diane Chambers Shearer, Mediators as Part of the Collaborative Family Law Process (on file with the author).

• [94] Mather et al., supra note 11, at 75.

• [95] See, for example, the special issue of Family Mediation News, summer 2003, published by the Association for Conflict Resolution, devoted to exploring the relationships between CL and mediation.

• [96] This is an expression coined by Marc Galanter to describe bargaining within a litigation model: "the strategic pursuit of settlement through mobilizing the court process." Marc Galanter, "Worlds of Deals: Using Legal Process to Teach Negotiation" (1984) Journal of Legal Education Volume 34 at p. 268.

• [97] See Lande supra note 58 and Terry supra note 58.

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