The Collaborative Law Process

 Just as there is no one clear model for Collaborative Law, so there is no unique process common to all models.  Those process developments espoused by Chip Rose and incorporated in the ACFL (C) in its model involves the lawyers and clients participating in the following “process developments”:

                         -Identifying the clients' respective needs, interests and issues

 -Developing process rules, agendas and time lines

-Identifying and exchanging all relevant information and documents

-Developing all possible solutions to the issues without limiting the search to the law model

-Educating the clients as to both sides of all the issues, all the settlement possibilities, the consequences of each particular outcome to each party and the needs and interests of each of the parties

-Helping the parties develop settlement proposals built on addressing the greatest needs of each

-Helping the parties negotiate their settlement proposals based on a commitment to achieving and outcome that is mutually acceptable and mutually beneficial to each party [1]

The Genesis of Collaborative Law

In our canoeing metaphor, the parties sometimes must restructure their lives.  Particularly where parents are in conflict, litigation is fundamentally unsuitable for imposing a solution where the parents cannot.  Nurse and Thompson, collaborative practitioners from Santa Rosa California, explain the growth of what they refer to as Collaborative Divorce this way:

 “Collaborative divorce grew out of an increasing dissatisfaction with the current divorce litigation system.  Neither divorce counseling, high-conflict counseling, nor the use of child custody evaluations appeared to be sufficient to take care of the family needs for restructuring itself.”[2]

 They descry the traditional system of divorcing because “it reinforces antagonism between spouses, neglects the children, and does not provide a process for the spouses to learn how to coparent effectively.”[3]  In Alberta, for example, the system does not require the parties to make a concerted effort to negotiate a parenting plan before proceeding to Court, although it does require the parties to complete the Parenting After Separation Seminar.

 Stu Webb of Minneapolis, Minnesota is generally acknowledged as the originator of the concept of Collaborative Law.  The story goes is that in the late 1980’s after practicing family law for many years, Webb analyzed those files where settlement had been reached in contentious cases, and concluded that success had been achieved largely because of the commitment of all participants to a principled, negotiated resolution.  He then organized a group of like-minded attorneys, with whom he has been practicing Collaborative Law exclusively since 1990.

 Chip Rose points to the following factors as motivating groups of lawyers to forming Collaborative Law groups and marketing this new approach:

-The frustration and futility of so many elements of the litigation approach

-The stress and strain of the adversarial relationships that color daily practice of law as a profession

-The inability to focus on positive, constructive and creative solutions to problems in the context of the litigation model. The client dissatisfaction with the relationship and outcome that are so frequently the by-product of that approach

-The realization that the institutionalized procedures of litigation are not addressing the clients' needs nor are they providing a source of professional pride and satisfaction as much as they are creating stress and eventually, professional burnout [4]

 The Many Faces of Collaborative Law

 Under the banner of Collaborative Law are found different organizational structures.  Some are private, others public.  Some involve lawyers only (as with ACFL (C) at present).  Others include members of other helping professions while still others comprise multidisciplinary teams of lawyers, accountants, financial planners and psychologists. 

Nurse and Thompson term their model “Collaborative Divorce” which entails each party being represented by counsel, and the couple working also with: 

-A male-female coaching team of two licensed mental health professionals

-A child specialist (usually a psychologist)

-A financial specialist where appropriate[5]

Pauline Tesler of San Francisco follows a similar model.  At the present time, the Calgary model involves lawyers only, and the parties jointly retain experts as needed. 

The Advantages of Collaborative Law 

The advantages of proceeding in a collaborative fashion are many, including:

-Control: -The clients have control over the process, the cost, and the outcome of the dispute.[6]  None of these is present in the litigation model.

 -Responsibility: -The clients are responsible for making decisions affecting the outcome.  Lawyers are responsible for “developing the process that allows the clients to accomplish these objectives in the most effective manner possible.” [7]

 -Promotion of Best Interests of Children: -No one will argue that a custody conflict is good for the children.  Whatever their personal differences, parents who both truly have the best interests of the children at heart will do whatever necessary to avoid putting their children through the trauma of a custody battle.

 -Stress Reduction: -Participants (parties and counsel alike) report greatly reduced levels of stress in their lives.

 -Avoidance of Solicitor/Client conflict of interest: -Lawyers and their clients traditionally have a fundamental conflict of interest in that what is best for the lawyer, in financial terms, is bad for the client.  The huge fees generated for the lawyer by proceeding to trial are fundamentally bad for the client.  The removal of litigation from the process eliminates this potential conflict.

 -Reduced costs, enhanced profitability:-Often, although not always, the resolution of a Divorce file on a collaborative basis is less costly than through the conventional litigation model.  On the other hand, lawyers who practice exclusively in the Collaborative Law model report that any drop in gross revenues is more that compensated for by a drop in overhead.  They no longer, for instance, require the same litigation support to churn out Affidavits of Documents and otherwise assist in preparing for trial. [8]

The Anatomy of a Collaborative Law Group

Once smitten by the concept, how does a Collaborative Law group come into existence?

In some locales, a small group of lawyers first got together, committed to the concept, developed protocols, and simply began to work collaboratively.  Gradually, more and more individuals were invited to join.

 In Calgary, Alberta, the experience moved more from the macro to the micro.  The concept of Collaborative Law had been discussed among a few members of the Bar for a number of years before Chip Rose accepted an invitation to speak at the Annual General Meeting of the Alberta Family Mediation Society in Edmonton, in April 2000.  On his way to Edmonton, Mr. Rose spoke at a lunch meeting of the Family Section of the Canadian Bar Association, Southern Alberta Branch.  His message there and in Edmonton was inspirational and fell on receptive ears.

 During the following week, a group of interested family lawyers from Calgary met and committed to establishing the Collaborative Law model.  The group decided that the way to best meet their goal of being public, open and flexible was to incorporate under the Societies Act of Alberta.  This would provide a means for setting qualifications for admission to the group and for practice as a Qualified Collaborative Family Lawyer.  And so, the Association of Collaborative Family Lawyers (Calgary) was formed.

 Attached as Schedule “B” is a copy of ACFL (C)’s Agreement to Collaborate, and it’s model Retainer in Schedule “C”.  Both documents have borrowed heavily from other collaborative groups and are freely useable.

The association’s Protocols are set out in Schedule “D”.  This last document is reproduced with the permission of the ACFL (C) and can only be reproduced if it contains an acknowledgment as to its ownership by that association.