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This
paper will highlight three relatively new choices to assist separating couples:
Collaborative Family Law (CFL) , Collaborative Divorce and Collaborative
Mediation. For mediators, the Collaborative Mediation model in particular,
promises to blend the best of mediation with the newly acquired skills of
collaborative lawyers.
1. What is Collaborative Family Law?
First and foremost CFL represents a paradigm shift from the traditional
role of a lawyer. Fundamentally, CFL blends interest based negotiation theory
and mediation skills with the ability to problem solve. The result is that
collaborative lawyers act as legal advisors, respectful role models and coaches
for their clients. The clients are encouraged to take the primary role in
negotiating agreements that they believe will meet their own and their
children's needs. The lawyers' knowledge and creative problem solving skills
are directed at reaching an integrative solution that everyone can say 'yes' to
and that the parties feel committed to uphold.
Steps in the Collaborative Family Law Process
a)
The process consists of an initial meeting between a lawyer and his /her client
in which a range of options are discussed for addressing the issues in a
separation or divorce. The clients learn that CFL is not adversarial or
litigation focused. In fact, both clients and their lawyers must sign a
Collaborative Participation Agreement at the outset, agreeing not to
litigate if an impasse is reached. What this means is 100% of the lawyers'
and clients' effort is directed at finding a win-win solution. Should that
not be possible, the lawyers must withdraw and turn the matter over to
counsel from a different firm.
If both clients select CFL
during a meeting with their own counsel, then a series of 4 way meetings are
scheduled.
b) Prior to the first 4 way meeting the lawyers meet,
preferably in person, to develop a positive working relationship, share general
observations about their clients (eg How they are adjusting to the separation?
What issues need to be addressed? Are there urgent issues? Etc.), agree on a
date, location and agenda for the first 4 way meeting, including how the
initial meeting will be conducted and conflict management strategies. It is
crucial to the success of the collaborative process that the lawyers create the
mindset of a "team effort" to reach a mutually acceptable settlement. While
each lawyer is still in the role of an advisor and advocate for his/her client,
the goal is not "winning over" the other party, but "winning with" the other
party, in a way that benefits all affected family members.
c) Prior to
the first 4 way meeting, each client meets with his/her lawyer to prepare. The
most important item is to ensure that there is a real understanding of the
terms of the Collaborative Participation Agreement, including that both lawyers
are obligated to withdraw if the matter goes to court, that full and frank
disclosure is required as soon as possible, and that good faith negotiations
are essential. Then, the agenda for the 4 way meeting is discussed and the
issues and priorities are clarified. Unlike the traditional 4 way meeting, the
focus is not on the preparation of legal arguments, but rather on explaining
the interest based approach to constructive problem solving, the importance of
respectful communication, and how to utilize the tools of Active Listening and
"I" Messages.
Also, it is important to clarify the roles of the lawyers
and clients in a collaborative process. In the traditional process, lawyers
usually speak on behalf of the clients and argue the merits of their client's
position. In a collaborative process, the lawyers encourage the clients to take
the lead, with their assistance, in actively seeking a win-win outcome. Lawyers
need to explain to their clients that the lawyers will address questions and
make supportive or validating comments to the "other side" in an effort to
build a positive working environment. Clarifying expectations in advance can
prevent misunderstandings and disappointment.
At this point each lawyer
may recommend that his/her client take advantage of supportive counselling in
relation to the separation or consider the use of impartial professionals for
addressing some of the family law issues (eg a mediator for parenting issues, a
business valuator or actuary to value pensions, etc).
d) At the first 4
way meeting the Collaborative Participation Agreement is read, discussed and
signed by both lawyers and clients and before substantive issues are addressed,
the participants agree on guidelines for respectful communication (both within
and between sessions), and a process for resolving conflicts or addressing
potential impasses. They also agree to protect the children from being caught
in the middle of their disputes.
Then, the issues are clarified,
prioritised and any urgent matters addressed. Agreement is reached on the
documents needed for disclosure, a reasonable time frame is set, relevant
impartial professionals are added to the collaborative team with everyone's
approval and tasks are assigned to each participant to complete prior to the
next 4 way meeting. One of the lawyers takes notes of the agreements reached
and prepares a summary, including the agenda for the next meeting. For example,
it may be that the parties engage (or have already seen) a mediator to create a
parenting plan, a pension valuator to determine the value of a pension, one or
more real estate agents to appraise the home, etc, so that all relevant
appraisals are ready for the appropriate 4 way meeting. Clients no longer
engage partisan experts who surprise the other side with values that appear
'optimistic', assets do not mysteriously disappear and insurance proceeds do
not find their way to pet canaries until both parties agree that all reasonable
family responsibilities have been met.
In between meetings, the lawyers
review the progress being made both with their clients and with each other and
additional 4 way meetings are held until an agreement satisfactory to the
participants is reached. This agreement is signed at a final 4 way meeting.
While the role of the lawyer is still to represent his/her client,
collaborative lawyers are bound by special Rules of Conduct that encourage
constructive problem solving and discourage hostile correspondence, angry
affidavits, threats of litigation, take it or leave it offers or other
intimidating or power based tactics. They are required to withdraw if their
clients do not act in good faith or if litigation is pending. Therefore the
lawyers, as well as the clients have a considerable investment in a successful
resolution.
2.
What is a Collaborative Divorce?
A Collaborative Divorce
involves an integrated, cross-disciplinary team model for delivering
professional services to divorcing clients. It is the legal equivalent of a
multi-disciplinary team in the mental health field. In cases that require a
range of expertise, for example to assist parents as a communication coach, or
with developmentally appropriate parenting plans, or to value a business, the
family can benefit from the co-ordinated efforts of several professionals, all
acting in an impartial capacity, to resolve their outstanding issues in a non
adversarial manner.
While other professionals may be added to a CFL
case, the Collaborative Divorce tends to be more of an ongoing working
relationship between team members rather than an ad hoc arrangement.
A
process similar to CFL is followed with respect to the role of the lawyers, but
others assist as needed and as determined by the person who is acting as a
"case coordinator". As with a CFL case, those professionals who are assisting
the couple must agree to withdraw if the matter goes to court.
3.
What is Collaborative Mediation?
Collaborative Mediation is process
that begins with clients selecting mediation as their preferred method of
dispute resolution. These clients frequently have not yet seen a lawyer or have
had minimal contact and not yet retained counsel. They are usually anxious
about involvement with lawyers, fearing that their hopes for a non adversarial
resolution will be disappointed. They are usually worried about losing control
of their decision making and prefer a process that encourages them to design
their own terms for separation.
Collaborative Mediation offers this
opportunity. As mediators we are obliged to send people for independent legal
advice. Now we can include the lawyers under the umbrella of a Collaborative
Mediation Agreement and have the mediator, both clients and both counsel
committed to the same non adversarial process.
In some cases the
mediator will assist the parties to mediate all issues (comprehensive
mediation) and the lawyers will attend a preliminary 5 way meeting to clarify
roles and time lines and will not meet again unless a difficult issue arises,
an impasse is reached, or the Memorandum of Understanding is ready for review
by the lawyers. In other cases, the mediator may assist with the parenting plan
and then transfer primary responsibility for financial issues to the
collaborative lawyers. In any case all will have signed a Collaborative
Mediation Agreement.
4.
What are the advantages of the Collaborative Mediation and the other
Collaborative models?
Most clients that I see retain mediators
before they have lawyers. Their prime motive for seeking mediation is
frequently to avoid an adversarial battle. The client's concern is almost
always that if lawyers are involved, they will end up in the "divorce from
hell", it will undermine their ability to cooperate with their ex spouse, it
will cost a fortune, and the psychological stress will have a terrible impact
on them and their children. Despite this resistance, mediators are subject to a
Code of Conduct that requires that they make every effort to ensure that their
mediation clients are protected by having independent legal advice. While most
mediators comply with this requirement, many acknowledge that their worst
nightmare is that mediation clients, who have managed, with difficulty, to set
aside their anger and hurt feelings, will be drawn back into an adversarial
battle by their lawyers.
The best protection for the clients is a
referral to collaborative lawyers. This is also the best way for the mediators
to be sure that the clients will complete an agreement cooperatively.
CFL and Collaborative Mediation offer many of the benefits of
traditional mediation, but with the additional safeguard of the lawyers'
presence for high conflict separations.
Also, financial disclosure
completed in a collaborative manner is likely to be more efficient. One of the
guidelines requires that the parties make full disclosure of all relevant
information at the earliest opportunity to ensure a fair and expeditious
settlement. This has the effect of building trust between the parties, an
important element in any successful settlement.
If special expertise is
needed, a single agreed upon expert (such as a pension valuator, a business
appraiser, etc) can be jointly retained. This saves the client money and
minimizes any hostility, caused when one parent feels excluded from important
decisions or that they have been presented with a "take it or leave it deal".
From the lawyer's perspective, the practice of family law would likely
become far more appealing. Few members of the Bar experience pleasure knowing
they have "won" a case, and in the process done significant harm to future
relationships with children, grandparents and friends. Also, Family Law is very
stressful for most lawyers. Clients, who are extremely unhappy and fearful
about their future, often take their lawyers along on the roller coaster ride.
Collaborative lawyers and clients stand to benefit from the involvement
of mediators. What mediators can gladly offer to Collaborative lawyers, are
clients, along with the promise to the clients that their case will not end up
in court! In the future, I plan to restrict my referrals to those trained as
Collaborative lawyers or mediators.
In the future, CFL will likely be
applied to other areas where the need for an ongoing relationship or the
cooperation of parties is needed, for example, estate matters, partnership
disputes, environmental issues, victim -offender cases, and neighbourhood
disputes.
Note: Dr. Barbara Landau, President, Cooperative Solutions,
is a psychologist, lawyer, mediator and trainer who specializes in family and
other relationship disputes. She offers courses in Family Mediation and
Collaborative Family Law. . This article was first published in the Fall,
2002 issue of Interaction, the Newsletter of
Conflict
Resolution Network Canada www.crnetwork.ca
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