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


A. Comparisons Between CFL Outcomes and Traditional Litigation-Negotiation Outcomes

An important question for the study was, "How different are the outcomes that are emerging via CFL from those that might be expected in a traditional litigation-negotiation process?" We already know from research on negotiated outcomes in family cases that these tend to mirror anticipated court outcomes—and, perhaps as a result, that there is a lack of overall creativity in negotiating family-by-family outcomes.[74] Regardless of how the final result is reached, just how different do CFL outcomes look?

In this small sample (just 11 of the 16 cases in the study reached a resolution within the time frame of the research project) the answer appears to be not very. Many lawyers told us that the substance of the outcome in CFL was no different or very little different than what they might have expected in a traditional litigation-negotiation process. That was especially likely to be the case where issues of financial support were in contention and where the jurisdiction had statutory guidelines. Where less predictable issues were involved—such as in mobility cases where custody was in contention—the negotiations proceeded on the reasonable assumption that while any number of arguments could be made, there was no clear legal outcome:

How different is this outcome from a litigated one? Not much at all. What is different is how they got there and what they are feeling about it. Case 6 lawyer 1 exit units 5255

The similarity between core outcomes in CFL, and those achieved in traditional negotiation or litigation, does not mean that there are no qualitative differences between agreements reached using these different processes. Many lawyers were at pains to distinguish between macro decisions over the distribution of financial responsibilities and assets and the legal care of children from other aspects of agreements, such as the realities of involving both parents in continued parenting, and flexibility around how financial resources are divided and used (timing, method of payment, timing of the sale of property etc). These characteristics, which may lead to value-added dimensions of an agreement, are discussed further in section 7(B).

The apparent parity between core CFL outcomes in these cases (albeit using a very small sample) and the outcomes that might be expected from a traditional, rights-focussed bargaining process is important, since some people have raised legitimate concerns about weaker parties coming out of collaborative negotiations with less than their entitlement. Generally, the 16 cases studied did not seem to support this concern. In one case, a significant concession was made on a legal entitlement (pension rights), but it was made in exchange for other concessions and the eventual result was not extraordinary in the spectrum of negotiated agreements. There has also been some concern raised about the use of CFL processes by wealthy individuals to escape the type of rigorous accounting and valuation process that would normally be required in relation to, for example, a personally owned business. While future research into and monitoring of these issues is very important, no evidence was found in this study to support the idea that the CFL process could be used successfully to promote such an advantage.

B. Value-Added Dimensions

While most CFL lawyers did not regard the core substantive outcome of their collaborative files to be very different from that of a negotiated or litigated file, they did point to differences in other procedural and psychological aspects of the resolution that translated into value-added dimensions of the settlement. These factors related primarily to the enhancement of communication between the parties, which enabled them to explore their understanding of what felt fair and to finesse details that might have otherwise followed a standard or assumed path. There is room for "honest assessments of the big picture," (Case 8, lawyer 1, entry interview, unit 71) including any future relationship. Different types of conversations seem possible because the constraints of lawyer-to-lawyer positional negotiation do not take hold in collaborative cases.

For example, some couples were able to negotiate creative alternatives to support, custody and access, which only this type of direct negotiation can really allow. In one case (Case 1), the parties were able to work out an arrangement for overnight access by the father, despite concerns from the mother about alcohol abuse, which had previously led to a refusal of overnight access. The parties agreed that the father would call the mother after he put the kids to bed to reassure her that he was sober, and again in the morning between 7am and 9am. The lawyers agreed that this arrangement likely would not have emerged from a discussion between the lawyers only.

In another case (Case 13), the couple was able to negotiate a support mechanism that, while it exceeded the legal requirement, helped the wife return to school, and met both her need to be treated with kindness and generosity, and her spouse's need to behave with grace and maintain the best possible future relationship. As the paying spouse commented,

This [CFL] allows me some sense of dignity and having done the right thing. Case 13, client 2, exit interview, unit 43

A number of lawyers provided examples of cases in which one spouse went beyond any legal requirements in a way that met important needs for both parties. For example,

I've had a couple of cases recently where, in both cases I represented the husband who had substantial assets, and the wife was saying she wanted more than half because she was inhibited from working…[A]nd the outcomes there in both cases were that the husband did and wanted to give more than, probably in one case, 60 percent of the assets, the other 65 percent. That would not have occurred in a lawyer-to-lawyer negotiation because the lawyers would just stifle that kind of an impact and have done their own positioning on it, [saying], "It always happens 50/50, what are you talking about?" kind of thing. Case 16, lawyer 1, entry interview, units 138-142

Some lawyers reflected on the types of issues that can be explored more deeply in a collaborative file than through traditional litigation. For example,

Lots of times, the amount of access that the access parent gets is usually greater [than the norm]. Case 4, lawyer 2, entry interview, unit 352

Better communication enabling more effective involvement and joint decision making in co-parenting is a regular theme in these answers. (e.g. Case 16, client 2, exit interview) In other cases, the experience of working through a financial settlement and access to financial advice helped some clients acquire new knowledge and confidence related to managing a budget. For example,

I think in the greatest cases, people actually come out better off. They're communicating better about parenting than they did…but also they are, in some ways, financially more savvy and able to organize and understand their finances better than they did before. So there is that real kind of value-added piece, where I think people have gained some skills beyond what they had. Case 14, lawyer1, entry interview, unit 90

Finally, the collaborative process allows for the development of trial outcomes in a way that litigation rarely affords. One such example has already been discussed in section 3(A).

C. Cautionary Notes

While there is some evidence to suggest that collaboratively negotiated outcomes may be able to balance different interests and concessions and produce an outcome that the parties feel is fair, there are also some risks that should be guarded against. The most obvious has already been alluded to—that is, that weaker parties may be pressured to agree to an outcome that does not recognize their needs. This risk is probably heightened where the lawyer's commitment to the collaborative process—that is, ensuring that the parties settle and that litigation is not necessary—appears to outweigh his or her commitment to the client, as in the following statement:

I don't really care about whether the outcome is optimal in terms of dollars and cents but that [my client] and I live up to our collaborative principles. Case 11, lawyer 2, exit interview, unit 57

This attitude raises questions about whose needs are paramount in the collaborative process—those of the lawyer or those of the client. While collaborative lawyers should model "collaborative principles," this modelling should not be done at the expense of their clients' interests. (See also the previous discussion on client advocacy.)

The possibility that concerns for personal safety might affect concessions or agreements made in the collaborative process must be kept at the top of the agenda in future research and monitoring. This issue is related to the question of adequate screening of cases at the intake stage (see the discussion later in this report in section 9(C)). In one case in the study, there were some concerns that the wife might be willing to give up rights in order to finalize the divorce and remove her husband—who was emotionally abusive—from the family home. The pressures to reach closure and find peace that everyone going through a divorce experiences are further heightened where there is the possibility of intimidation or abuse, and collaborative lawyers must be extremely vigilant about this danger. Ultimately, the outcome in the case that raised these specific concerns appeared to be close to the legal standard and was accepted voluntarily and without improper pressure by both parties.

Finally, it was apparent in a few of the cases in the study that the level of emotional resolution achieved via the collaborative process was perhaps not as great as the lawyers had anticipated or hoped for at the outset—nor as deep as they believed was achieved by the end. In one case (Case 13), both clients and both lawyers had begun with the intention of using the dialogue process to build a firm foundation for a future step-parenting relationship. This proved to be difficult to handle in the four-ways. In the end, since custody was not an issue, resolution was primarily focussed on a financial settlement. While this did not detract from successful agreement and closure on the contentious matter of money, it was a reminder that the collaborative process does have its limits. As one client—who faced litigation after believing the matter to have been settled in CFL—put it:

Trust building is a big one and a deep issue in a 20-year relationship, and this is probably too deep for a legal process [CFL] to handle. Case 12, client 1, mid-point interview, unit 14