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Recently, a group of Utah family law practitioners completed a two-day training seminar on Collaborative Family Law. This unique process is generally attributed to the idea of
Stuart Webb, a prominent divorce lawyer from Minnesota, who, approximately ten years ago, unilaterally declared disarmament. No longer would he fight the other side. If he and
his client couldn't negotiate an out of court settlement, then he would withdraw. He probably felt a little like the person who bought the first fax machine.
The answer to his question as to whether this would work could not have been clearer: In his first two years of collaborative practice, Stu handled 99 cases and all but four
reached full settlement.
His success led to the formation of an organization of many Minneapolis area family lawyers committed to the model. The concept spread beyond his city and with him and other
qualified trainers, groups have been formed in California, Connecticut, Florida, New Jersey, Texas and Indiana.
What is Collaborative Law?
Collaborative law is a way of practicing law where the attorneys for both parties to a family dispute agree to assist in resolving the conflict using cooperative techniques
rather than adversarial strategies and litigation. Early non-adversarial participation by the attorneys allows them to use attributes of good lawyering not commonly utilized
in adversarial proceedings, namely use of analysis and reasoning to solve problems, generation of options and creation of a positive context for settlement.
In essence, two clients and two attorneys work together toward the sole goal of reaching an efficient, fair and comprehensive settlement of all issues. Each party selects
independent collaborative counsel. The parties and counsel enter into a four-way agreement which is focused on the goal of reaching an out of court settlement - a core term is
agreement that if the process fails and either party wishes to have the matter resolved in court, both attorneys withdraw and are disqualified from further representation
except to assist in the orderly transfer of the case to adversarial counsel.
The collaborative process starts with parties to a dispute who are counseled thoroughly about their dispute resolution options. Trained collaborative counsel begin their
clients' discussion by inviting the clients to consider what kind of divorce experience they want, how they might go about achieving it and a realistic picture of the side
effects to families of the adversarial dispute resolution process.
Since the collaborative process is new, it's to be expected that many people come to a lawyer believing that their only option is court. They can be counseled otherwise. There
are also a large and growing number of people who are attempting to resolve their own divorce wanting to avoid the expense and bitterness often associated with litigation. As
a result, many people attempt pro se divorces which are sometimes successful but are often lacking in many key ingredients. There is now an alternative for all of those folks.
The collaborative process moves forward with carefully managed four-way settlement meetings that are preceded by prior ground work between the lawyer and client, and between
the lawyer and lawyer. Rather than providing information strategically or through lengthy discovery procedures, information is exchanged openly and freely. Clients are
educated that it is in their self interest to be open and honest at all times in the process.
Generally, before any four-way negotiating session occurs, the collaborative lawyers meet and confer, sharing information that will assist them in managing the conflict and
setting the agendas for the four-way meetings. The skill here is to manage the agendas in such a way that the clients experience success during the early meetings thereby
building in the clients a sense of confidence, safety and competency that will serve them as more difficult issues are addressed.
To be effective in collaborative representation, lawyers need a whole new array of understandings and skills. These new skills require effective collaborative lawyers to: (a)
change how they think, speak and behave; (b) change how they relate to their own client; (c) change how they relate to the other attorney and their client; (d) change how
settlement meetings are conducted.
Clearly, collaborative law is not for everyone's client just as it isn't for every lawyer. Some clients will always need a court ordered result to satisfy goals that cannot be
satisfied in the collaborative process. Some clients, because of their personality or motivation, are not susceptible to successful collaborative processes. There are lawyers
who believe that notwithstanding all of its shortcomings, the adversarial process is the best way to resolve a dispute. Taking the element of power out of the process of
client representation is a counter-intuitive reaction for many lawyers.
For clients who are concerned about the long range impact to their families that most often result from adversarial conflict in divorce, collaborative law is a process whose
time should have arrived much earlier. Even when a court ordered outcome is reasonably certain and favors one side, it does not mean it is the best result when long range
family dynamics are taken into consideration. The most stable and satisfactory outcomes are not those imposed by a Judge. The best are those achieved by mutually agreeing to
maximize the results for both sides through broad analysis and negotiation. As Benjamin Disraeli, the 19th century British Prime Minister once observed, ÒNext to knowing when
to seize an advantage, the next most important thing is knowing when to forego an advantage.
The recently trained Utah lawyers have organized themselves into a group called Collaborative Family Lawyers of Utah (CFLU).
Protocols have been established so that all collaborative lawyers will operate with the same guidelines and procedures. The group has established minimum and ongoing training
requirements. The question Stu Webb asked himself ten years ago, whether this will work, will hopefully produce the same answer in Utah.
For further information, contact Brian R. Florence 5790 Harrison Boulevard, Ogden, Utah 84403. (801) 476-3200. (801) 476-7200 Facsimile. E-mail Attyflo@aol.com.
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