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What is Collaborative Family Law?

I.  COLLABORATIVE FAMILY LAW DEFINED

Collaborative Family Law (“CFL”) is a revolutionary approach to divorce that has quickly spread through the United States and Canada.  In 2001, Texas enacted the first Collaborative Law statute.  Collaborative Law is now taught at several law schools, including the University of Texas, and the University of British Columbia. 

The Collaborative Family Lawyers of Cincinnati is one of the most successful collaborative practice groups in the United States.  Founded in 1997, the group now includes over 60 family lawyers.  Hundreds of CFL cases have been completed, with relatively few impasses.  The practice group meets monthly to reinforce the new paradigm and discuss issues or concerns raised by cases. 

        The CFL case requires that a husband and wife are each represented by counsel trained in interest-based negotiation, the choreography and structure of CFL, and interpersonal conflict resolution skills.  Counsel and clients execute a contract, called a Participation Agreement, which precludes either attorney from representing their respective clients in the event the case reaches impasse or in the event either party chooses to withdraw from the CFL process.  This Participation Agreement insures that counsel and clients stay focused on the task of resolving issues in the most efficient, creative way possible.  In most jurisdictions, less than 5% of the divorces filed are actually finally tried to a court.  Most filed cases are settled, but only after financially and emotionally draining discovery and pre-trial processes.  The Collaborative process focuses couples on efficient settlement options.

        In many places, the model has been expanded to include mental health and financial professionals.   This is often known as Collaborative Practice.  Mental health professionals assist the divorcing couple in the roles of Child Specialists and Divorce Coaches.  Financial Planners assist by generating financial scenarios and assisting with budgets.

        The addition of Child Specialists and Divorce Coaches can help couples smooth the transition for families.  A Child Specialist, retained as a neutral expert, can help parents focus on the needs of their children and allow children to have a “voice.” The Child Specialist will inform parents about common reactions children have to divorce, discuss developmental and practical considerations important to making parenting arrangements, and assist parents in developing realistic parenting time plans.  Additionally, the Specialist can provide a future resource to the family as circumstances and the needs of the children change.

            Mental health professionals may also serve as Divorce Coaches for the parties.  The goal of coaching is to help clients manage their anxiety and conflict so that they can effectively communicate and work with each other in the CFL context and beyond.  Divorce Coaches help clients learn new communication, problem solving and relationship skills.

   Financial planners can help in the CFL process by creating budgets, providing alternative spousal support scenarios, and reviewing property divisions by taking into account assumed rates of return.  Planners can provide long-term projections to allow husbands and wives to examine how settlement might impact each over a period of time.  

While participants in the CFL process in Cincinnati often choose to utilize the services of mental health professionals and/or financial planners, historically, in the majority of cases, only lawyers assist the couple through the process of the termination of their marriage.

           In Ohio, which has a separate Dissolution of Marriage statute, the CFL case is not filed until all issues are resolved and the marital or separation agreement is executed.  In unfiled cases, rather than having Temporary Restraining Orders to preserve the marital estate, clients rely upon the Participation Agreement’s mandate that assets remain intact while the process is pending. In other jurisdictions, especially those with long pre-divorce waiting periods, by agreement, one lawyer files early in the case in order to begin the statutory waiting period.  However, collaborative counsel is stayed from actually proceeding on contested issues in court during this period.  Temporary issues of support and parenting must be resolved in the CFL process without filing preliminary motions. 

II.  ELEMENTS OF CFL

The roadmap of the process requires that the participants focus on interests, gather sufficient information to insure that decisions are made with full knowledge, create a full range of options, and then choose options that best meet the needs of the parties.  The structure, along with the skill of counsel, creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.     In CFL Cases:  

• Clients have the opportunity to maximize options and outcomes.
• Lawyers facilitate a specific process, understand a shared Choreography.
• Lawyers contractually commit not to litigate.
• The focus is on Problem-Solving.
• “Hammer of litigation” is off the table. 

III.  THE CHOREOGRAPHY OF CFL

            A shared choreography provides counsel with a road map of the process and creates predictability and an atmosphere for efficient negotiations.  The basic choreography: 

·        Initial lawyer-client consultation- At the initial conference with a client, the process options to terminate the marriage are discussed. This discussion assumes a client is in a position to make choices and that a case has not been irretrievably placed on the litigation track.  Concerns about domestic violence and substance abuse must be addressed.  While such an inquiry should be standard in all cases, it is especially important in cases in which a client may choose CFL.  Because the client in the CFL process is directly involved in the negotiation, issues of duress and personal safety must be addressed.  The client is porided an overview of the process and the role other professionals might play in the Collaborative case.           

·        Preparing the client- Prior to engaging in the four-way process, counsel and client meets to insure that counsel understands the client’s interests and any issues that must be addressed on an immediate basis.

·        Attorney-to-attorney consultation- The lawyers consult to set the structure of the upcoming meeting and to discuss and establish agendas.  This includes a process agenda focusing on the most effective and efficient way to negotiate the case, and a substance agenda to discuss temporary issues and a framework for gathering and obtaining valuation information.  Additionally, with the permission of clients, the lawyers discuss “hot spots” and areas of particular concern that have been raised by each of their clients.  The goal of the lawyer/lawyer consultation is to insure that the four-way meeting addresses concerns and proceeds smoothly.

·        Collaborative Meeting – The Collaborative meeting is the heart of the CFL process.  The initial meeting sets the stage for a problem-solving atmosphere.  Issues are discussed, information is gathered and reviewed, and options for settlement are created.

 

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