Collaborative Practice: Deepening the Dialogue

Index

CHAPTER 1

COLLABORATIVE LAW: THE WHAT AND THE WHY

I was used to feeling anxious as I sat at counsel table waiting for the judge to deliver his reasons at the end of a trial. Today, as I lined up my pens, trying methodically to slow down my thumping heart, I knew my client was going to lose custody of her son. I also knew I had been completely unable to prepare her for the pending decision. She was seated behind me, her mother at her side. On the other side of the courtroom sat her ex-husband with his new wife. Physically, I formed a buffer between my client and the judge whose decision would change the shape of her life. I was given no choice which direction to face; I was an officer of the court and the layout of the courtroom ensured I would face the judge with my back to my client as she heard the devastating decision.

The clerk opened the door, preceding the judge into the room as she called the court to order. I rose to my feet, aware that the dread and anxiety that usually swirled at this time in my stomach had gripped my heart.

In my heart! I wrote later in my journal I just don’t think I can continue to do this work. If I want to be helping people heal rather than fight, then I’m a fool for not just jumping in and doing it.

Years later, I realize fool was not the right word. I talked to anyone who would listen about how there had to be a better way for families than the adversarial system, adding, I’m just not bright enough to figure out what it is. Bashing around in the box of my legal training, I could do little more than rush through the week, trying to serve my clients as I honed my legal skills, retreating to recuperate with my children on the weekend, and beginning again the following week. I start feeling anxious about 2:00 p.m. on Sunday, another family lawyer told me one day when we met at the dog park, just knowing I have to be back at work Monday morning. I felt fortunate that my own anxiety did not settle in until Sunday evening.

What I didn’t know was that in Minneapolis, Minnesota, another family lawyer had already closed the lid on the litigation box and walked away. Stu Webb had no desire to continue with family law litigation and was ready to quit the practice of law. He was enjoying the mediation component of his practice and thought perhaps psychology would suit him better. Webb set off to study psychology, but soon decided that was not where he wanted to focus; instead he turned his mind to restructuring his practice. He concentrated on settling his family files, and took lots of files with a favourite, settlement-oriented, colleague on the other side. Professional companions, they enjoyed working together and were usually successful in resolving their cases.

Then came a case they could not settle. As they had both been trained to do, they went to court, on their clients’ instructions. The aftermath was disastrous for Webb’s working relationship with his colleague. Pondering what had happened, Webb came close to locking his office door and walking away. In a moment of reflective brilliance, he decided he had nothing to lose by continuing to practise and telling his clients that his role would be limited to settlement; if the case did not settle, they would need to hire a new lawyer to take their case to court. On January 1, 1990, he began his practice as a collaborative lawyer.

The fact that Webb was able to continue to practise even though, at first, he was the only collaborative lawyer in the world, might seem extraordinary. But an interesting thing happened. Not only did clients continue to retain him, but when other lawyers heard what he was doing, they committed to trying the same process.

Webb’s personal prohibition against going to court was, for the development of collaborative practice, akin to the proverbial spark. In order for the spark to ignite, certain conditions had to be present as tinder. These conditions converged from at least three separate directions: from the legal profession, from spouses going through separation, and from the court process itself. These are the obvious players in what has sometimes been referred to as the divorce industry. As tinder for Webb’s spark, each of these players contributes uniquely.

An increasing number of lawyers have become dissatisfied with adversarial practice, particularly in the area of family law. The inter-personal nature of the profession and the nature of the people practising law have changed immensely in the last 40 years. In 1965, only two percent of students entering the University of British Columbia Law School were women. By 1990, the figure had grown to 48 percent and is now over 50 percent. The numbers are similar for law schools in the United States, where women made up 42.5 percent of the law student population in the 1990-1991 year.¹ While more women are graduating from law schools, more female lawyers are choosing part-time practice. In 1994, 25 percent of the lawyers practising in British Columbia were women and by 2003 this had increased to 30 percent. Over the same years, the percentage of women practising part-time remained relatively stable, and significantly higher than their ratio in the practising bar; in 1994 37 percent of women were practising part-time, and in 2003, 38 percent.²

Many women have reacted to the practice of law either by restructuring the way law is practised, or by leaving the profession. Of those who have stayed many have done so with a firm commitment to structuring a work environment that meshes more closely with the demands of family and with the values they hold in their personal lives (this has, in part, resulted in the more frequent availability and acceptability of part-time work).

Family law tends to have a large number of either sole practitioners or lawyers in small firms and the financial pressures differ from the economics of big firm practice. Bringing task-specific settlement skills to a case may well make more financial sense for the sole practitioner than managing complex family litigation.

Procedurally, the practice of litigation has become more complicated, and more tactical. It is not uncommon for lawyers to use both delay and prolonged, expensive litigation as strategies to help achieve a particular result for a client. Justice Rosalie Abella, in an address to a bencher planning session of the law society of Upper Canada, described our preoccupation with rules: We have moved from a society governed by the rule of law to being a society governed by the law of rules.³

The vocabulary of battle is sprinkled throughout our professional exchanges. Courses are offered on killer cross-examination. Correspondence between counsel routinely contains implied or explicit threats.

Many lawyers are finding the stresses of practice difficult to bear. In a study of 104 occupations at John Hopkins University, lawyers topped the list of workers with major depressive disorders, registering this disorder 3.6 times more than their demographic counterparts in the general population.⁴ They have elevated rates of alcohol and drug dependency and twice the level of depression of other professionals.⁵ Many lawyers enter law school hoping to find a profession that will provide an opportunity to be of service to others, and become disillusioned when the work they are actually doing fails to meet this goal. Family law lawyers have seen the chaos and harm that the structure of the traditional legal process has wrought on the very families they are trying to help. They have watched helplessly as children’s relationships with their parents are harmed and at times, even destroyed.

Lawyers struggle with the tools available to families through the courts: blunt instruments, not conducive to the sensitive, personal assistance families need in a time of transition. A large number of practitioners are ready for a different way, including very experienced family trial lawyers who have said, I hope I never do another trial. Tinder for Webb’s spark.

Separating spouses bring their own needs and another dynamic to the divorce industry. It has become more common for a family’s net worth to be devoured by the court process. Parents are reluctant to spend their savings on litigation rather than their children’s future. It has become more common for family litigants to end up declaring bankruptcy when legal fees compound the financial belt-tightening that follows when families move into two homes. As a result, separating spouses have become much more willing to proceed through the court system on their own, without counsel. A recent study in British Columbia has shown that there is no statistical correlation between net worth and whether or not a family litigant hires counsel.⁶ Simply put, many separating spouses have come to believe that hiring a lawyer to proceed through court may not be the best use of one’s financial resources. More tinder.

A system that treats all litigants (including family litigants) as adversaries is destructive to future relationships and is often devastating for children. Spouses traversing new territory from married to separated to divorced, face the tasks of re-shaping the nature of their relationship with each other and re-structuring their role as parents. This struggle demands sensitivity and cooperation at an emotionally vulnerable and painful time. Since the legal process frames all problems as disputes, it encourages spouses to battle, instead of working together to resolve a shared problem. Those wanting to work towards resolution fear that the system itself will make things worse, not better.

The court system remains over-burdened, working hard to maintain access to justice while trying to modify procedures and rules to promote settlement. Judges speak unanimously about not being the best people to resolve personal family disputes. Such issues are best resolved by the spouses themselves, who know their families intimately and have an overriding interest in their future and the future of their children. Although not many courts have become proactive in the development of collaborative law, most have been supportive of local groups of lawyers working together to give people a settlement option. Judge Ross Foote from Louisiana stands out as an exception—he has actively promoted the development and training of collaborative practitioners in his parish. Judge Foote is committed to interdisciplinary collaborative practice becoming the dominant model of family practice in his community. He has raised funds for training family lawyers, mental health professionals, and financial specialists in interdisciplinary collaborative practice and speaks passionately about the strengths that the collaborative model can offer the whole family, both spouses and children. In a country where judges are elected, he considers it important for judges to think personally about the legacy they bring to their professional duties. Thoughtful and to-the-point when describing his commitment to children, he is a vocal proponent of families working, with professional assistance, to resolve their own disputes. Perhaps the institutions that see divorce cases daily have provided the conditions—wind and lack of rain, necessary to spread the fire of collaborative practice.

Stu Webb is a quiet, humble man. He has spoken of collaborative law publicly over the decade since the transformation of his way of work. Webb and his vision appear as innocuous as the downy head of a dandelion. But, much as the fragile seeds of a dandelion allow the plant to reproduce prolifically, his vision of collaborative practice has caught hold in the ensuing years; collaborative groups have sprouted up in communities throughout North America, and the movement is spreading to Europe and Australia.

Because collaborative law is a process and a way of practice, its spread is not hindered by differences in legal procedure between jurisdictions. Since I am writing this book in British Columbia, occasional references are particular to either British Columbia or Canada. One of the rich beauties of the collaborative process is its diversity. Just as many of the problems with the current system are systemic in all common law jurisdictions, the components of collaborative law process provide useful techniques and skills that transcend international and jurisdictional boundaries.

COLLABORATIVE LAW–THE BASICS

As collaborative law becomes established, different models of practice are emerging in different communities, but there are fundamental principles common to all. The defining feature of collaborative law, regardless of the model, is that lawyers are hired specifically to help parties resolve their disputes outside the court process. The collaborative lawyers agree that if the collaborative process should fail, neither lawyer will go to court (often referred to as the disqualification agreement). If the parties decide to turn to the court system for resolution, then the lawyers are out of a job. They must withdraw from the case, and the parties hire new lawyers to represent them in court.

Both the parties and the lawyers enter into a participation agreement, contract to work in a respectful manner, and agree to disclose all documents and information that relate to the issues. If a lawyer learns that a party has withheld or misrepresented information and continues to withhold or misrepresent information, then he or she is obligated to withdraw from the collaborative process and to let the lawyer for the other party know that the collaborative process is at an end.

Lawyers involved are as committed to the resolution of the issues as are the parties. Because everyone has contracted to do their best to resolve the issues outside the court system, everyone agrees to avoid the kind of tactics common in a litigation-managed file, including threats of court.

The collaborative process centres on a discovery of personal needs and interests, and how these are prioritized by each spouse. The issues to be resolved are framed by the spouses rather than by specific family law statutes which allows the parties to work towards resolution by concentrating on the issues that lie at the heart of the matter.

One hallmark of resolving cases within the collaborative law model is the use of four-way meetings; meetings between the two clients and both their lawyers. Each client meets with his or her lawyer prior to the meeting to discuss issues to be resolved and to ascertain what the parties need, hope, and fear in the context of resolving the case. An agenda set prior to the four-way meetings ensures that everyone is clear on the issues to be discussed. As required, clients meet separately with their own lawyers between the four-way meetings. At the end of each meeting, homework may be assigned.

In collaborative practice, if it is necessary to hire experts to value assets such as companies or properties, the parties agree to retain such experts jointly. If the matter is not resolved within the collaborative framework and the parties end up hiring new lawyers and proceeding to court, all of the collaborative process is without prejudice (that is, cannot be disclosed in court), including any expert reports that have been prepared, unless the parties specifically agree that they will jointly rely on such reports. In interdisciplinary models of collaborative law, the other professionals, coaches, financial specialists, and child specialists are also contractually bound not to continue working with the spouses or the children if the matter goes to a contested hearing. These professionals will not testify and cannot be subpoenaed.

When all issues have been resolved, one of the lawyers agrees to draft the separation agreement, which is subsequently signed by both parties.

Collaborative law allows spouses to define the issues and work actively towards their resolution. The path to resolving their own disputes is often arduous, yet it demonstrates a commitment to the future. The emotional passage of the divorce process is eased as spouses work to create long-term solutions to what are changing, but often life-long, relationships. In traditional litigation-based models of family law, the emotional turmoil a couple experiences during the separation process is frequently exacerbated by the adversarial nature of the court process. This exacerbation increases the distress and mistrust between the separating couple, breaks down their ability to communicate effectively with one other, and destroys any residual trust the couple may have had. It becomes more difficult for the parties to resolve issues, and often results in the couple having to turn to a judge to resolve interim matters, and sometimes all matters, between them. What few skills the parties may have acquired for resolving differences between them are decimated, and they learn to hand their decision-making over to a third party. If one party likes a decision, they perceive it as a win and the other party as a loss. Losing may provoke a party to go back for another round—and a chance to win—or to blame the system. Within this process, there are people who learn to turn to the court as the only moderator, giving up their skills and inclination to resolve disputes themselves. Collaborative practice recognizes that this model of dispute resolution is not effective for most families who are separating.

Although flexible enough to meet the needs of a variety of situations that arise in the separation and divorce process, collaborative law is not for everyone. It requires a commitment on the part of both parties to work together honestly and with integrity. It also requires a desire to work with their lawyers to resolve the issues, instead of relying on an outside third party (a judge) to make decisions for them. Without this commitment, the process won’t work.

THE INTERDISCIPLINARY MODELS–CHOOSING THE PROFESSIONAL FOR THE PROBLEM

What is divorce? At its most simple level, it is a court order terminating a marriage. All of us who have worked in the field know that, as a life transition, it is much more. It is dreams unfulfilled, or dreams that have run their course. It may be profound grief and it may be bittersweet freedom. It is about families restructuring: financially, emotionally, and practically. It is both conflict and resolution. It is pain and it is relief. It is a surprise ball of legal, financial, emotional, spiritual, and psychological dimensions.

Robert Hass, in his poem Regalia for a Black Hat Dancer,⁷ describes the experience of his divorce with this simple eloquence:

though I was hollowed out by pain,

honeycombed with the emptiness of it,

like the bird bones on the beach

the salt of the bay water had worked on for a season—

such surprising lightness in the hand—

I don’t think I could have told the pain of loss

from the pain of possibility,

though I knew they weren’t the same thing.

When I think of that time, I think mainly of the osprey’s cry,

a startled yelp,

the cry more a colour than a sound, and as if

it ripped the sky, was white,

as if it were scar tissue and fresh hurt at once.

I have re-read this poem numerous times. I have turned to it in times of contemplation, times of grief, and times of contentment. Through the poem, I have travelled with Hass from a Berkeley restaurant where, over supper, he watches other parents visiting with children they no longer live with; as he wanders down to the bay at Heart’s Desire beach; as he visits the cave of the Sokkaram Buddha in Korea. Only now do I realize the significance of what Hass leaves out. Nowhere in the poem does he mention his lawyer.

As lawyers, we see ourselves driving the boat in the divorce process. We have been trained to rely on other specialists as consultants if we are treading into territory outside our expertise. We consult accountants for tax advice. We routinely refer our clients to therapists with mediation training to sort out parenting plans, or to counsellors or psychologists to provide therapeutic support through their divorce. But, we have always seen ourselves as in control of the process and making the decisions. The perspective of other professionals is very likely different. I work in an interdisciplinary collaborative group, and I am certain that my mental health colleagues would complete this metaphor by describing themselves as driving the search and rescue boat.⁸

As the field of collaborative law has spread, many groups have started out as lawyer-only groups. In a few areas (including Vancouver, British Columbia; Atlanta, Georgia; Wisconsin) the collaborative groups were interdisciplinary from the start and included mental health professionals and financial specialists. As lawyer-only groups grapple with trying to offer service to couples with high levels of conflict and complicated family dynamics, more of them are considering the interdisciplinary model.

Conflict has been described as having two components: an energy release component, (the unrealistic component) and a solution or outcome-oriented component (the realistic component)⁹. Dealing with each component of conflict requires those involved in conflict resolution to have different skill sets. As lawyers, we have seen people who are so intensely emotional that they cannot negotiate or move towards resolution. Their dominant need is the energy release; they need to be listened to, perhaps to vent—they may need to grieve. Counsellors and psychologists are well trained to work with this energy release component of conflict, and bring their unique skills to clients struggling with anger, fear, grief, and resentment. Our skill as lawyers is illuminated when our clients are in the solution-oriented phase. By training we are solution-oriented, we are skilled as negotiators, and we define our task as striving for solution of legal issues.

It is not only the dynamics of conflict itself that call for different skill sets, but also the multi-faceted nature of divorce tasks. These tasks include the development of age-appropriate parenting plans, learning communication skills that will move spouses successfully along the road of co-parenting, and moving away from the blame/shame cycle. Fortunately, some people are ready to plunge into the work of admitting their responsibility in the marriage breakdown; and some indicate a desire to move towards forgiveness.

As collaborative practice has become more sophisticated, we have developed different ways to incorporate other professionals into our daily work with clients. As we build a model that suits our own professional needs, it is important to be cognizant of our clients’ needs. The richness, diversity, and depth of the interdisciplinary model will be dictated partly by how the model is structured.

There are three different interdisciplinary models of collaborative practice currently materializing—each with varying degrees of formality and structure.

COLLABORATIVE DIVORCE¹⁰–THE TEAM APPROACH

Not long after Stu Webb decided he was no longer going to go to court, a group of psychologists in California, convinced that there was a better way for couples to resolve the issues arising at divorce, began to meet. In 1992, Peggy Thompson PhD, and Rodney Nurse PhD convened a small think tank and gathered with two other mental health professionals and a lawyer to discuss developing a less destructive model for working with couples in serious conflict. In the early years of trying to develop a model, they found that the lawyer in the group continued to view what was possible (and impossible) from the viewpoint of adversarial advocacy. Unable to build a comprehensive model within this framework, the psychologists continued to work collaboratively and developed a team which included divorce coaches, a neutral child specialist, and a neutral financial specialist. However, they found that when they sent clients out for legal advice, regardless of how close they were to resolution as a result of the work they had done with their divorce coaches, things often fell apart when the lawyers were retained. In the mid 1990s, Nancy Ross, a social worker, brought her expertise in working with separating families and joined Thompson and Nurse in developing a team approach for separating families. At the same time, lawyers began practising collaborative law in the San Francisco Bay Area, and the collaborative divorce team members were finally able to galvanize the team model of collaborative divorce, by working together with these newly trained collaborative lawyers.

The collaborative divorce model always uses a team, minimally comprised of two divorce coaches and two lawyers. A child specialist is added to the team if children are involved, and a financial specialist if the financial issues are complex. Both the child specialist and the financial specialist work as neutrals in the team model. The divorce coaches work individually with their respective clients and also work together in four-way meetings.

The team provides containment for the couple as they go through the transition of divorce. The divorce coach model draws heavily from family systems theory. Thompson says, We believe it takes a system to change a system. Divorcing couples have been operating, often for quite some time, within a dysfunctional system. We help them to regulate and re-form themselves into a functional system that can effectively provide parenting for children after the divorce.¹¹

Consistency of the model is significant for at least two reasons: so that the public knows with certainty what they are getting if they choose this model, and so that any evaluations of outcome are based on the same fundamental criteria.

The divorce coach model has made an extremely important contribution to collaborative practice. Analogous to the lawyers’ paradigm shift, the role of divorce coach requires therapists to develop a new orientation and a new application of their skills. Unlike couples’ therapy where one therapist works with the two, each partner has their own divorce coach, and when the couple works together, they have both the strength of their relationship with their respective coach as well as the combined skill of two coaches working collaboratively. The collaborative divorce coach offers a targeted intervention, not long-term therapy, and aims particularly at building spouses’ communication skills. The divorce coaches do not continue in a therapeutic relationship with clients post-divorce, but are available after divorce if parents need their services to refine a parenting plan.

The divorce team is structured with an overlapping contractual framework that allows all team members to communicate about the parties and the issues they are working through. The team communicates in team meetings, and is headed by a case manager. The without-prejudice nature of the collaborative process extends to all team members, and no-one (including the divorce coaches, the financial specialist, or the child specialist) can appear in court if the process breaks down.

THE INTERDISCIPLINARY GROUP–THE LEGO APPROACH

The collaborative divorce model recognizes the relationship needs of the family; the fact that separating spouses have, in Coser’s terms, realistic and unrealistic expectations within the conflict; and the particular need of divorcing parents to restructure their family in a manner that is healthy for their children. It combines individual support, systemic support, and objective neutrals.

The interdisciplinary group model includes lawyers, mental health professionals who act as divorce coaches, mental health professionals who act as child specialists, and neutral financial specialists. Some interdisciplinary groups include neutral mediators.¹² Unlike the collaborative divorce team model, where every couple has a comprehensive professional team, these interdisciplinary groups welcome clients (their first contact may be through a lawyer or a mental health practitioner) and put together a team based on the needs, resources, receptiveness, and directions of the clients. I refer to this model as the lego model, to exemplify the unique structuring that takes place for each couple.

Within this model, in the early interviews with their lawyer or coach (depending on whom they first retain), clients are informed of their choices of process and the possible involvement of different professionals. They may choose to involve lawyers, coaches, a child specialist, and a financial adviser right from the beginning. However, it is more common for parties to build their team as they proceed, depending on their needs. If they began with coaches, they may be content to retain lawyers only after they have reached substantial resolution. If they started with their lawyers, they may retain coaches shortly into the process, work with the coaches, and then return to the lawyers. It may be that only one party decides to retain a coach. In that case, four-way meetings with coaches are not possible, but one spouse can still rely on a coach’s services for support through the divorce. Spouses may choose to engage coaches only after hitting speed bumps in their work with lawyers.

The interdisciplinary groups are structured similarly to the collaborative divorce team model as to contractual arrangements—the participation agreement. Participation agreements protect the without-prejudice nature of communications and allow the professionals to discuss details of the case freely amongst themselves. Clients sign agreements with their lawyers, with any divorce coaches they retain, with the child specialist and the financial specialist (if retained), which confirm that no-one will subpoena any professionals if the case leaves the collaborative process.

An oft-heard question about the interdisciplinary group and the collaborative divorce team model is What about the cost? Cost is increasingly a driving force for divorcing couples. The growing phenomenon of people acting on their own in the family courts is partly a reflection of the prohibitive cost of lawyers. It is also a reflection of litigants’ dissatisfaction with the lack of control over legal bills once litigation becomes the engine of their divorce. Litigants are completely unable to control the time their lawyers spend waiting in court to be heard on interim applications. Pre-trial discovery is very expensive, and is often conducted as a part of the lawyer’s due diligence, rather than to serve any particular need of the clients. Clients have little, if any, control over the volume and length of correspondence exchanged between lawyers. Disbursements for photocopies, faxes, postage, and couriers often add hundreds of dollars to clients’ bills.

There are costs associated with the interdisciplinary group. However, the client controls the costs. Clients retain professionals who will be used only as much as required and whose specific skills are geared to the clients’ needs, which is more cost effective. Clients experiencing the energy release component of conflict can choose to rely on the mental health professionals in the group. On an hourly basis, therapists and counsellors are less expensive than lawyers, and more skilled in dealing with this aspect of conflict. Even in high-conflict families, both the interdisciplinary groups and the collaborative divorce teams are finding that couples spend less on divorce coaches than litigants in the same community spend on psychologists for custody and access assessments. The outcome for couples using divorce coaches is a de-escalation of the conflict. This contrasts with custody and access assessments which provide the spouses with no new skills and are often divisive for the family.

LAWYERS WORKING WITH OTHER PROFESSIONALS (LWOP)

In some locales, particularly where the initial collaborative training in the community has been in a lawyer-only as opposed to an interdisciplinary model, lawyers begin working collaboratively without using other professionals under a collaborative contract. Lawyers may still send clients to work with a counsellor; they may send couples together to work with a therapist or mediator; or they may call on an accountant or financial planner for input into financial matters.

This model is familiar to lawyers as it retains most of the characteristics of the cross-professional relationships we had prior to becoming collaborative lawyers. For those lawyers whose professional lives still combine collaborative law and litigation, the LWOP model can be applied to their collaborative families and their litigation files. Working within this model does not require the development of new skills or protocols. The lawyer still retains control of the process, and continues to drive the boat.

Although these collaborative groups tend to be closed, with only lawyers as members, some of them allow mental health professionals as non-voting members. This hierarchy provides both comfort and control to lawyers. The risk, of course, is that it maintains the myth that separation and divorce are primarily legal events. It uses a non-egalitarian structure that immediately impedes the kind of cross-cultural learning and enrichment available in an interdisciplinary group. It is premised on the assumption that lawyers, once they have learned some active listening and empathy skills, are as capable of dealing with the energy release components of the dispute as therapists.

Often the therapists working in this model have had a relationship with the legal community prior to the advent of collaborative law in their community (they might have a history of doing custody and access work, or have been referrals for clients needing therapy). This background can make therapists comfortable with the adversarial model, and the shift in focus away from the adversarial model may be difficult for them, just as it is difficult for lawyers. The majority of therapists and counsellors who work with families through separation are not aligned with the legal community. These professionals have viewed the destruction that custody and access litigation can wreak on families and do not like to appear in court. Such therapists tend not to emerge under the LWOP model, and come to lawyers’ attention only when the legal community is ready to move towards an interdisciplinary group.

Another problem inherent in the LWOP model is that, without the team building that happens in a collaborative divorce team or an interdisciplinary group, therapists working in