What is COLLABORATIVE FAMILY LAW TRAINING?

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COLLABORATIVE FAMILY LAW TRAINING

My Personal Experiences

author/ Christopher Fung

Christopher Fung：

I was asked to write an article about collaborative law and its practice by a friend of mine now. In all honesty, I’ve never actually practised collaborative law in any way, shape or form and in writing this piece, I am not attempting to write an academic article. 

However, in around 2011, I was privileged enough to attend a collaborative law course being run by Alan Susskind at Strathclyde University.  This is merely a description of my recollections with some additional information thrown in for good measure.

Introduction to Collaborative Law

I recall that the course consisted of an initial introduction to collaborative law. Said introduction described its roots as being from Canada and how it was a fairly recent development in the field of Alternative Dispute Resolution. I cannot recall the precise terms of the introduction, however, I feel that the definition given on Wikipedia is sufficient. Wikipedia states that:

 

Collaborative law, also known as collaborative practice, divorce or family law, is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. 

The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family-related litigation.

I recall being told during the training that the practice of collaborative law could be distilled down to a single question, namely:

Would you like to dance at your daughter’s wedding?

To many this may seem like a strange question for a lawyer to pose to their client. This particular question has its roots in Western culture, where the father of a bride will dance with her in front of guests at her wedding.

The basic idea behind the question is whether one wants to have a good relationship with their child in the future; one where they can attend their child’s wedding and dance with them. Or alternatively, would one would rather have a bad relationship with their child and not be invited to their wedding because they are considered to be a trouble maker.

A parent’s relationship with their child is affected by their relationship with the child’s other parent. Sometimes, if relations between parents become strained, they may in turn affect the non-residential parent’s relationship with their child. 

Reasons for this include the child hearing negative things about the non-residential parent from the residential one, the child sensing hostility between parents and choosing the side of the parent they live with, …etc. In extreme cases, something that psychologists refer to as parental alienation can occur, which may lead to a breakdown in the relationship between the non-residential parent and their child.

As we all know, children grow up and they do not stay small forever. A poor relationship with a child can eventually become a poor relationship with a grown child. Said grown child may not wish to nurture a poor relationship.

Collaborative law is a forward looking means of resolving disputes. Parties should not be encouraged to dwell on past difficulties, but rather to consider ways of moving forward in the best way possible and with a view to securing their long term interests.

After the introduction to collaborative law, we were given a rundown of the types of things to expect in a participation agreement and this was followed by what I believe was the most practical training possible.

The Actors and Actresses in Training

Moving straight onto my description of the practical training, I note that it would not have been ethical for Strathclyde University to bring along a family or two, and let students of collaborative law play around with said family’s future. However, Strathclyde University were kind enough to hire actors and actresses as fictional clients for the practical element of the training. For the sake of clarity, no children were involved and each student was randomly assigned a client.

The actors were randomly assigned roles. Those roles were graded by numbers and the numbers hostility levels of an actor. 

An actor with a grade 9 role might throw tantrums and even walk out of the meeting, whilst a grade 1 role would require them to be very docile and practically agree to everything that the other side wanted. We, the attendees, were not informed of the grades our actors were given until the end of the training. I was given an actor with a grade 7 role, which meant my client was fairly hostile to the other side.

The actors were also given background stories for their situations. They kept copies of these on them for reference, since they did not have much time to digest the information in their roles. 

My first contact with my client was for a consultation in which I had to obtain details of their situation from them, along with information about the type of outcome that they preferred. I also took the opportunity at some point during the meeting to describe what collaborative law was to the client – despite the situation being fictional – and in particular that I would not be able to represent them in subsequent legal proceedings.

The format of the actual collaborative law meeting was a face-to-face discussion. Whilst I did realise that everyone was there to collaborate, I still took efforts to control my client if they were behaving inappropriately or simply failing to recognise their own interests. 

Although I had instructions to help my client to participate in the meeting, I recognised the possibility that my client could collaborate “too much” and do something averse to their own particular interests. The situation of being a lawyer in a collaborative process can lead to conflicts of interest. In such situations, one must always be mindful of their professional obligations.

The first topic that was discussed at the meeting was related to the facts and issues in dispute. This may sound easy, however when you have two angry parents arguing over what the actual problem is, then the professional input of lawyers is indispensable. Only once the issues in dispute are known, can any progress be made to resolve them.

After all of the facts and issues had been agreed upon, we took a short break. During the break each lawyer had a conversation with their client. I tried to identify points on which the client was determined to achieve their desired results and ones on which they were willing to make concessions.

Often clients do not like to make concessions. However, it is a lawyers job to remind the client of the overall objective of the process – amicable resolution for the sake of their child -  and to realistically set the clients expectations by letting them them what they could realistically hope to achieve through the courts.

When the meeting resumed, we started brainstorming different solutions to the problems. Now the brainstorming session should be completely open, however, clients do need to be kept on track. It is worth letting the client know in advance that unreasonable demands will sour negotiations.

Once a set of solutions has been narrowed down, then it is actually possible to draft an agreement, or at least some sort of memorandum at the meeting. All of this can be done tentatively in note form and a full detailed contract need not be produced immediately.

Feedback

I imagine that once an agreement has been tentatively drawn up, that the client will be more committed to the process. They have sunk time and money into the process and will be reluctant to jeopardize the investments that they have made.

Like all forms of ADR, the client needs to be aware that ADR costs money and the lawyer's time is chargeable, regardless of whether it is for litigation or ADR. If the ADR process fails, then potentially the client is looking at double costs. By this I mean having to pay for ADR which fails and thereafter paying for litigation.

Once the tentative settlement had been drawn up, we met up again with the rest of the training group and went through a self-evaluation process. As part of the self-evaluation, everyone discussed their experiences, including, what went well for them and what went well for the other side.

Whilst attendees completed the self-evaluation exercises, the actors were asked to fill out feedback forms in which they would comment on the quality of the advice they were given from a layperson’s perspective and whether they felt confident in their lawyer’s abilities. Once the self-evaluation session was finished the actor’s reports were given to the students.

I found the experience to be worthwhile and excellent. I think reading a book or being given a lecture would not have prepared me in the same way for the potential realities of a collaborative negotiation in the same way and I hope that reader of this article get the opportunity to enjoy such practical training themselves, if they haven’t already.

This article was written on 14th March 2017.