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


A. The Team Model

The team approach to CFL, using the expertise of not only lawyers, but also mental health professionals (usually therapists) and sometimes financial advisors and child welfare specialists, is attracting much attention. An increasing amount of commercial training in CFL is aimed at preparing communities to master this approach. The team model does not yet appear to be widely used (just two of the cases in the study were team cases), but it may be the wave of the future, at least for those clients able to carry the additional up-front expense[71] of retaining both a lawyer and a coach.

It is important to distinguish between the team model and those cases in which experts other than lawyers—usually accountants or financial advisors, or sometimes child welfare specialists—are asked to meet with the couple and to offer a non-binding evaluation. It is a hallmark of all collaborative practice to encourage clients to make use of expert services other than legal advice wherever necessary. In the team model, clients are asked to commit to working throughout the process from the outset with a coach who will prepare them for the four-way meetings. The most commonly described team model assigns a coach to each spouse, although in Atlanta, there has been some use of a single coach who works with both parties. In the team model, the coaches become part of the collaborative team for the purpose of sharing information. They will brief the lawyers on their meetings with the clients and expect the lawyers to similarly keep them apprised of their work in four-ways with the clients. Occasionally, there may be a six-way meeting in which both coaches and both lawyers sit down with the two clients.

The principle of information sharing between lawyers and therapists has encountered some problems. First, therapists have to ensure that they have explicitly contracted with their client to permit them to share information (with the lawyers) that is usually treated as strictly confidential. Second, clients do not always understand that they will be billed for the time that lawyers and coaches take to brief one another, and this misunderstanding raised some contentions in one case in the study.

Attitudes toward the full team concept among lawyers vary. Some find it muddy : "I am working for my client—nothing should muddy that." (Case 8, lawyer 1, exit interview, unit 43) Others consider it to be the highest and best form of practice. These attitudes are described further below.

Given the small volume of team cases observed in this study, the issues that will be highlighted in this section relate to attitudes among the broader sample toward the use of other collaborative professionals—and coaches in particular. When are lawyers encouraging their collaborative clients to use coaches? When should they? And what do clients think about working with a coach as well as a lawyer?

B. Client Use of Other Collaborative Professionals

Clients who used other collaborative professionals were generally satisfied with what they brought to the resolution of their case. In several cases, the input of an independent financial advisor was important to reassure one spouse—usually the wife—that she was not being taken advantage of by a more knowledgeable partner. (Case 16, client 1, exit interview, units 59-60)

There was more ambivalence about using a counsellor or a coach. In at least four cases, one client was seeing a therapist independently of the CFL process, who appeared to provide necessary support to the client. However, clients who used the services of a coach within the team model would probably disagree that this arrangement was the same as working with an independent therapist who was not knowledgeable about the collaborative process. In addition, coaches can bring the spouses together for joint discussions. One client emphasized how important it was to her to work with someone who saw the dynamics between herself and her husband, and could help her to change the patterns:

I had had lots of counselling before but on my own. I had not expected to get so much from the coaching but [have] found this to be invaluable. I have now been able to change the pattern of my interaction with my husband—and my coach has really helped. She can mirror back to me what I did that was different and…point out to me when I am returning to my old patterns. Case 6, client 1, mid-point interview, units 51-56

The experiences of some clients do, however, suggest some difficulties with the use of other collaborative professionals, whether as advisors or as full team members. Not all clients were satisfied with the quality of the financial advice they received, (Case 16, client 1, exit interview, units 55-58) and in one case the advice provided became a battleground, with competing experts being proposed. (Case 11)In another case, one spouse was so anxious about the weight that might be given to the view of a child welfare expert that, ultimately, this expertise could not be used. (Case 15) Another client complained that the coaching process often felt artificial and overly constrained. (Case 8, client 2, entry interview, units 43-47) Finally, there were some issues related to billing practices in the team model, which are discussed further in section 8 of this report.

C. Lawyer Attitudes Toward the Use of Other Collaborative Professionals

Relatively few lawyers—either those participating in the cases studied or those interviewed on field visits—had worked with the full team approach (see above). However, many had worked with a non-lawyer professional as an expert or advisor, and some had been trained in the full team model. A number of these acknowledged that while a coach might be highly effective in some cases, it was often difficult in practice to persuade clients that they needed to retain two professionals at the start of their case, in order to implement the full team approach from the outset. Instead, introducing other professionals as the need arose was easier. For example,

What I'm finding with the CFL team approach, it's very hard to say, "Okay, I want you to hire all these professionals from the get go." People would say, "Oh man, that's too much work right now, I just can't do it, it's too expensive." But I'm finding that, as the process goes on, all of us see that a problem arises and we're at kind of a standstill and the attorneys are kind of saying, "Well, we don't really know what we think you should do, why don't we ask Dr. X to come in and look at it." So I think as the process progresses, then they realize, yes, we do need professionals, instead of at the beginning saying these are the professionals we know you're going to need, so why don't we go get them. I think if you do it…piecemeal, it's more successful. Case 15, lawyer 2, entry interview, units 105-110

Advocates of the team approach, however, would argue that this approach reduces the potential for a multidisciplinary team to work with the couple from the beginning, and does not result in either the same level of commitment or the same types of relationship that a full team model is capable of generating. There were at least two cases within the study where the lawyers consistently encouraged the parties to retain coaches or other counsellors to support them in the process, but to no avail. In one of these cases, in which the collaborative process ended without a settlement, both lawyers wondered whether they should have made retaining coaches a prerequisite of agreeing to work with this couple in the collaborative process.[72] (Case 7, lawyer 1, entry interview, unit 97, and lawyer 2, exit interview, unit 56) However, requiring coaches is a step that few collaborative lawyers feel comfortable with, despite their judgment about the significant difference this might make to the chances of a good outcome in some cases.

Many lawyers acknowledge that they do not have the necessary skills to work with some couples who need special help in communicating. For example,

I really see in the meetings that they're both not hearing exactly or very clearly what the other person is saying, and attorneys have limited skills in helping them do that…I think we've learned a little bit about that in this process, but it's one of those things where we just don't want to become counsellors or mental health professionals, or even pretending that we are. Case 14, lawyer 1, mid-point interview, units 111-114

Not all lawyers feel so unsure about adopting a therapeutic role, however. A few experienced collaborative lawyers characterize their role in highly therapeutic terms. One such lawyer described his practice goals in terms that sound closer to therapy than to legal practice:

A part of my goal for them is to try to leave their dysfunctional communications systems behind and replace them, basically using ground up starting with baby steps, medium steps and then larger steps, with the goal being that the communicative system that they replace the old one with isn't something they lapse back into the old dysfunctionality.
Case 11, lawyer 2, entry interview, unit 127

These lawyers (who represent a small but notable group) see themselves as qualified to discharge the therapeutic and counselling responsibilities that might otherwise fall to a mental health specialist—in other words, these lawyers do not really see the need for a separate coach.

D. Inter-Professional Relationships

The boundaries around the role of the coach and the role of the collaborative lawyer are not yet clearly defined, and this will be one of the challenges for the team model of collaborative practice. One area of difficulty is the possible encroachment by lawyers on the therapeutic role of coaches. Lawyers who are drawn to the team model tend to be those who feel comfortable with a closer and less traditionally expertise-based relationship with their client—in other words, some of these lawyers prefer a quasi-therapeutic role for themselves also.

Some therapists indicated that they are uncomfortable with the blurring of the boundaries between their role—for which, they point out, they have been professionally trained and qualified—and that of some lawyers who assume a more therapeutic relationship with the client. For example,

When lawyers begin to cross into the therapy role, there is a wobble there. Lawyers are not accountable about how they understand family systems theory, they can just wing it any way they want it. Therapists are supervised and tested in student papers and practica. Other collaborative professional, interview 19, units 71-73

The following statement is even franker about these dangers:

"Go for it," say the lawyers. The clients need more than this. CFL training is insufficient for this. This is not a legal process. Other collaborative professional, interview 13, units 92-95

There are also differences in the way lawyers and mental health professionals approach problem solving in collaborative cases. While the sharing and blending of expertise is a potential strength of the team model, it also presents some challenges for lawyers and coaches working together, especially in six-way meetings. One therapist pointed out that lawyers appear to find open brainstorming more difficult and perhaps more counterintuitive than coaches do—lawyers are less able to problem solve without coming up with a suggestion on how to solve the problem (one client made a similar point). (Other collaborative professional, interview 12, units 94-95; Case 6, client 2, mid-point interview, units 42-46) One lawyer described the way different approaches to client advocacy might also confuse communication within a team:

Coaches more inclined to look at this as problem solving for the family—they are less aware of how something they might say might shift the whole negotiation in the room. Lawyers are more aware of what might affect their own client—and lawyers and coaches are sometimes on different wavelengths about this. Case 8, lawyer 1, exit interview, units 45-47

There is a range of opinion on this point, however. Some lawyers have suggested that coaches are just as inclined to be overly positional and protective of their clients as lawyers are.[73].

A final raft of issues arises in relation to control and hierarchy within the team. Doubtlessly, it is often hard for lawyers to effectively stand back from a case where coaches are used extensively:

Staying on the outside until the end was hard! Case 6, lawyer 2, exit interview, unit 31

Differing fee schedules between lawyers and therapists could become a contentious issue, especially where role parameters are unclear:

I question the fact that they [lawyers] are charging huge lawyer's fees for doing a process which is not legal. Their legal expertise does not come into this very much and the clients are being charged as if they are getting legal expertise. Other collaborative professional, interview 13, units 96-97

Some therapists question the assumption that the lawyer should act as the referral hub:

Therapists should not be dependent on lawyers for referrals. Lawyers may be doing cases without coaches and coaches need to promote their services more independently. Perhaps coaches should be a more broad referral and resource point for their clients. …I could see therapists referring to lawyers and not just lawyers referring to therapists. Other collaborative professional, interview 16, units 75-77

A multidisciplinary process may require a case manager. This need not be a lawyer. In fact, it could be an individual who brings together parties with the necessary expertise but does not otherwise participate in the case. The skills and experience of an experienced mediator may be the right fit here. Creating such a role may help parties identify and avoid some of the challenges of the team model discussed above and help this innovative process reach its full potential. As one lawyer using the team model acknowledged, ultimately "success ….is based on the strength of my relationships with colleagues." (Case 8, lawyer 2, exit interview, unit 38)

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