COLLABORATIVE FAMILY LAW
An Overview

Collaborative Family Law (CFL) is a process. Unlike Court, the procedure is not pre-determined by rules or statutes. Rather, it is up to the parties and their lawyers to decide how they will proceed. One of the key roles of CFL lawyers is to help the parties design a process that fosters the clearest decision making and most effective problem solving for them.

The CFL process is organic. It evolves over time, in response to the unique perspectives and priorities of the parties. The parties, guided by their lawyers, make decisions about their process as they proceed. Together, the lawyers and the parties are the participants. Throughout the remainder of this text, we use the term participants to describe all of them and the term parties in reference to the clients only.

CFL is designed to enable the participants to act as effectively as possible to maximize the outcomes for both parties. An effective CFL lawyer is constantly mindful of how the process is working for her client and for the other party. The lawyers in a CFL case involve both clients in all aspects of the decision-making process, as well as in the substantive outcomes. With CFL, the process is as important as the outcome.

Principles of CFL

• Team approach – The lawyers and the clients work together as a team of equals, all pulling together on the same side of the problem.
  
• Court is not an option – Neither lawyer can commence a legal proceeding or threaten to do so during the CFL process. This provides an incentive for the lawyers and their clients to keep working together to find acceptable solutions and unleashes creative, out of the box problem solving. The team may include neutral experts when needed.
  
• Recognition of the interdependence of the parties – There is a shared belief that the best possible outcome can only be achieved if the needs and interests of both parties are met. Clients are not expected to agree with each other, but to accept that the other, along with his or her perspective and belief system, is a necessary partner in creating a solution.
  
• Focus on interests – Collaborative negotiations are interest-based, rather than adversarial. The parties exchange information and consider all available options before choosing the best solution to meet their identified interests.
  
• Law is not the only standard – Although CFL lawyers inform their clients about their legal rights and obligations, they encourage the parties not to limit themselves to outcomes dictated by the law.
  
• Process and outcome are of equal importance – In collaborative negotiation, the parties seek to understand and to be understood. The lawyers, in consultation with the parties, bear responsibility for creating a respectful, effective negotiation process. The parties own the outcome.

Assumptions of CFL

While the adversarial approach assumes that people in conflict do not have the capacity to make their own decisions, CFL assumes that most people in conflict can, with proper support, make decisions for themselves. They do not need either their lawyers or a judge to decide matters of importance for them. It is recognized that conflict, particularly about important personal issues, usually causes people to feel weak and self-focussed and diminishes their capacity to make good decisions. However, CFL lawyers provide the parties with support and guidance to enable them to regain the capacity to think for and beyond themselves.

The nature and degree of support provided by a CFL lawyer to her client will depend upon a variety of factors, including the client’s personality type, emotional state, cognitive abilities, education, and expertise, as well as the nature and complexity of the issues and the level of conflict between the parties. Clients may need help to voice opinions and concerns, to understand complex information, to deal with feelings of guilt, hurt or anger, and to appreciate the legal landscape.

Individual meetings may be necessary to allow the clients to vent strong emotions and to allow lawyers to reality check the clients’ stated objectives when they diverge widely from accepted legal options and the objectives of the other spouse. For example, a client who appears angry about the obligation to pay spousal support in a long-term relationship needs to clearly understand that indefinite support is customary after lengthy, traditional marriages, where there is a need by the other spouse. In this situation, the dependant spouse’s interest in her future financial well-being and clear legal entitlement to ongoing appropriate support are congruent. A CFL lawyer may convene an individual meeting with her client or take a break from the settlement meeting to have a brief discussion of this kind of issue. It provides the client with an opportunity to express strong feelings without harming the working relationship between the parties, and to negotiate realistically around the issue in question.

Whether client support is provided in the settlement meetings in the presence of all participants or by way of an individual meeting with the client is a question of judgment. While lawyers work together as a team in an atmosphere of transparency, it is also critically important that the lawyer maintains the client’s dignity, allows her to save face, and maintains her trust and confidence. Such is the art and balance of collaborative negotiation.

Traditional negotiations conducted in the adversarial arena, cooperative as they may be, assume that the law dictates the outcomes available to the parties. Both lawyers and clients have tremendous difficulty letting go of the notion that results must comply with a statute and legal custom. The CFL process gives the parties, not their lawyers or the law, the right and responsibility to create their own outcomes. CFL lawyers encourage their clients to treat an outcome based solely upon statutory or case law as one option among many, to be assessed in terms of its ability to meet the needs of individual clients.