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Collaborative Law: A New Way For Lawyers To Get Clients Out Of The War Zone And Into Peacemaking

by Dori Smith, Law Clerk, Goldstein Law Office, P.A.

I. Introduction

“Collaborative law liberates the problem solver within.”1

It does not come to many people as a surprise when they hear a married couple they know are planning to get a divorce. In the United States, as well as in Canada and the European Union, nearly half of all marriages now end in divorce.2 Divorce is accepted as a predictable and normal choice in life.3 Unfortunately, this common marital decision often causes the parties involved a great deal of emotional stress.4 Litigating a divorce is an extremely adversarial process. In divorce proceeding, the courts become an arena for a “ritualized form of gladiatorial combat.”5 The parties do not work together, the lawyers do not work together, and afterwards, it is highly unlikely the parties will ever have an amicable relationship.6

The children involved suffer as well. During a divorce children require extra support from their parents because the process forces children to experience dramatic life changes. Parents become distracted from the stress of the divorce proceedings so that they cannot meet their children’s pressing needs.7 Therefore, an alternative to litigation is necessary for divorce disputes.

Collaborative law, a new process currently used almost exclusively in family law, allows clients and their lawyers to contractually agree to negotiate exclusively for settlement. The lawyers sign a legal agreement that they are disqualified from representing their respective clients if the clients cannot settle and choose to litigate. The main difference between collaborative law and conventional negotiations is that instead of positional bargaining, the lawyers “work together toward the common goal of a mutually beneficial settlement for their clients.”8 As a result, the adversarial element is removed from the process, but at the same time each client’s lawyer remains an advocate for her client’s interests during these negotiations.9 Collaborative law aims to “provide a civilized process, produce outcomes meeting the needs and interests of both parties, minimize costs and increase clients’ control, privacy, and compliance with agreements.”10 It is a new frontier to help remove families from the courtroom.

The mastermind of collaborative law is a Minneapolis family law attorney, Stuart Webb, who in 1988, “found himself in a state of ‘family law burnout’ after many years of practice.”11 Instead of leaving the law, Webb found a way to practice family law outside the adversarial system. He stopped going to court and only represented his clients in negotiations where both parties agreed before time that settlement was the ultimate goal.12 If settlement could not be reached, he withdrew from the case, forcing his clients to seek new counsel.13 His new approach to family law was the beginning of the collaborative law movement.14

The “hallmarks” of collaborative law include. “ …full and voluntary discovery disclosures, avoidance of even a threat of litigation throughout the negotiation process, the commissioning of neutral experts to participate in discussion, and a disqualification agreement.”15 The disqualification agreement is defined as a, “…written agreement, under which the lawyers and parties explicitly commit to avoid litigation by providing that lawyers are disqualified from representing parties in litigation and must withdraw if either party chooses to litigate or even threatens to litigate.”16 The disqualification agreement gives both the clients and the lawyers a great incentive to settle. After the parties and their lawyers have signed the disqualification agreement, they start an informal and cooperative discovery process that supports informed, interest-based negotiation until all issues are resolved.17 During the process the clients should respect each other, as well as each client’s legitimate needs.18

Many scholars and practitioners believe collaborative law is an innovative new ADR process that should be utilized as the primary means for resolving divorce disputes.19 In order for this to happen, there must be more effort by the legal and professional communities to promote the growth of the collaborative law movement. In this article I will first discuss the process of collaborative law in family law and its distinguishing features. Part III will address the benefits of the collaborative law process for parties and attorneys and Part IV will respond to criticism of collaborative law. Part V will discuss the preliminary findings of the first longitudinal study on the effects and success of collaborative law. Part VI discusses the successes of the collaborative law movement, but also addresses the call for more collaborative lawyers. Finally, Part VII concludes with a summary about how collaborative law aims to become a main method for peacefully resolving legal disputes.

II. Collaborative Law: The Process

The collaborative law process involves multiple four-way client and attorney meetings to generate solutions to the issues presented by both parties. But before the meetings begin, the client interested in the collaborative law process must meet with the lawyer for a consultation. During a typical consultation, the lawyer focuses on the clients’ objectives and interests to help the client make an informed decision about whether collaborative law is the right option for them.20 If so, the lawyer will explain that in collaborative law the law is a guide, but “the parties are free to fashion their own deal within certain limitations.”21 The attorney must provide clear and impartial descriptions of the process, and explain any alternatives to collaborative law before the client signs any agreement to proceed.22

The lawyer must clearly explain to the client that choosing to participate in the collaborative law process means both parties agree to “full, honest and open disclosure of all potentially relevant information” instead of a formal discovery process.23 Both the clients and the lawyers are expected to “provide good faith responses to any good faith questions and requests.”24 This creates a conducive environment for settlement, and the parties sign a confidentiality agreement that the information disclosed in the negotiations may not be used in court if the process should break down.25

Most importantly, the collaborative law practitioner must explain the disqualification agreement to the client. The disqualification agreement is the “core element” of collaborative law.26 If the parties cannot resolve their dispute in the collaborative law process, their respective attorneys, and any neutral experts the parties utilize, are precluded from representing them in court.27 The disqualification agreement is there to provide “credibility to the parties’ commitment to reach a settlement without resorting to litigation.”28 Without it, “the case is not a collaborative law case.”29

The client should also be informed that during the meetings, the parties are allowed to bring in neutral experts.30 The use of neutral experts removes the dynamic of “dueling experts” with conflicting opinions on the issues discussed at the meetings.31 If the parties do not reach settlement, these experts may not participate in any subsequent litigation between the parties because the same disqualification agreement that applies to the lawyers applies to the experts.32 This understanding helps create an environment that facilitates settlement because it eliminates the fear that information revealed in the collaborative law process will be held against the clients if they choose to go to court.33

In the case of impasse, the first move is not necessarily to end the process and proceed to litigation. In many jurisdictions, if impasse is reached in the collaborative law process, the parties have the option to utilize another ADR procedure to try to resolve the issue, such as mediation or non-binding arbitration.34 At this point, the collaborative law process has not broken down; it is only looking to other methods to attempt to resolve an issue the parties cannot agree on. If these alternatives do not successfully resolve an impasse, and the parties decide to proceed to court, that is the point when the collaborative law process terminates.

The lawyer must thoroughly explain what a client should expect if he or she decides terminate the collaborative law process. The client will most likely endure additional costs for a new attorney, new experts, court fees, and much more of the client’s time will have to be devoted to the case.35 According to recent empirical studies on the collaborative law process, the chance that the parties will not settle and end up in court is very slim; more than 95% of all collaborative law cases result in complete signed settlements.36 The client should take the risk that the collaborative law process will be successful because “the potential benefit of obtaining a more satisfying outcome for the client outweighs the risk of not obtaining value for the cost of the collaborative lawyering process if the process fails.”37

After explaining the collaborative law process to the client, and if both clients agree to proceed with the collaborative law process, the two collaborative lawyers will contact each other before the first four-way meeting. This gives the lawyers an opportunity to share information to help them create a comfortable environment that will promote settlement.38 The lawyers warn each other about issues that their respective clients are more sensitive about. This is not tiptoeing around the clients; collaborative lawyers realize that when such deep emotions are involved, timing can positively or negatively affect the outcome.

Most of the first four-way meeting is devoted to discussion of introductory and technical matters. The clients will make decisions about who will file the divorce proceeding, what information needs to be obtained, when the future meetings will be, and how the process will be paid for.39 The clients and their lawyers will review the participation agreement, make any necessary changes, and receive any necessary clarification about the ground rules. It is also a good opportunity to discuss pressing temporary issues, like childcare or housing.40 The clients can also decide whether they want to involve neutral experts, such as accountants, appraisers, or child development specialists.41

After the first meeting, both the clients and the lawyers will have tasks to accomplish before they meet again. Clients are usually asked to gather various types of information to bring to the next meeting.42 The lawyers document any substantive decisions that were made and draft any temporary binding agreements just in case the parties cannot reach a settlement.43

At future meetings, the clients will focus on specific issues, such as property division, parenting plans, and child support. Usually as the meetings progress the issues become more narrow.44 The clients and the lawyers work as a team to develop and evaluate options in order to resolve all of the clients’ issues. At the last meeting the clients sign their voluntary contractual settlement, and some clients may even plan a ceremony or celebration.45

The total amount of time necessary for the collaborative process is relative to the clients and the jurisdiction. The number of meetings that are held depend on the needs of the clients. Some clients are done in three months and others take over a year.46 For instance, families with complex issues to resolve may require more time. Plus, the amount of time given to the collaborative law process varies from state to state. For example, in Texas, the parties have two full years to reach a settlement before the court will interfere.47 The ability to self-pace is a unique and appealing aspect of the collaborative law process.

III. The Benefits of Collaborative Law

Collaborative law has many unique benefits for both the clients and the lawyers. One of the most significant benefits of collaborative law is that it affords the clients a peaceful divorce process. Collaborative law aims to “minimize hostility and negative conflict, and to instead refocus the parties on constructive methods of communicating.”48 This is not only a benefit to the clients themselves, but to their children as well. Litigation inevitably increases the amount of conflict and hostility between the parents, and according to considerable research, litigation is the greatest cause of damage to children in divorce.49 If clients “generate and own the solutions to their disputes, post-resolution conflicts tend to be rare, and more readily resolved, than in litigated solutions to disputes.”50 Collaborative law helps promote better communication between the parents, and a helps the parents maintain a cooperative long-term relationship.51

In collaborative law the clients decide the outcome of their situation rather than a judge.52 The clients have the ability to come up with creative solutions that formal trial proceedings are unable to provide.53 Litigation disempowers the parties because they are no longer the decision-makers on important issues, such as matters pertaining to their children.54 The parties can avoid having their destinies decided by a trier of fact who may never hear all the facts.55 Collaborative law seeks to replace the “one-size-fits-all” mentality with an awareness that each family is unique.56

Another benefit of collaborative law is that it maximizes the clients’ privacy. Instead of publicly filed motions and open court hearings, the clients have private, four-way meetings.57 There is no need for depositions or interrogatories because all questions are answered during the collaborative meetings.58 The information revealed in the collaborative law process remains confidential and cannot be used against the clients if they go to court. The disqualification agreement ensures this privacy, because if the divorce cannot be settled, the respective practitioners and neutral experts are prohibited from being involved in the case any longer.59 Therefore, it would be a breach of confidentiality for them to disclose in court any information discussed in the meetings.

Both the clients and the lawyers benefit from the flexibility and extra time the collaborative law process allows for. The clients have the opportunity to take preliminary steps to make the process easier, like selling their marital residence before dividing up property.60 It is common for the clients involved to be at different stages of the “grief process,” so this extra time also allows them an opportunity to accept the reality of the divorce.61 The flexibility allows lawyers to be in charge of their calendar, a luxury most litigating attorneys do not have. Collaborative law practitioners can schedule meetings according to their needs, and in addition, this type of law “can be practiced in tandem with other fields.”62 The parties and the lawyers are afforded the opportunity to be on their own schedules, and not the schedule of the court.

The amount of money spent on the collaborative law process is significantly lower than the cost of litigation. According to the Massachusetts Divorce Practice Law Manual, collaborative law costs a third of the price of a traditionally litigated divorce.63 Clients also have the ability to cut down on the amount of money they spend by doing informal discovery themselves.64 For example, the clients can call investment advisors, divorce financial analysts, and estate attorneys outside of the collaborative meetings. At a time when the clients’ financial situation is on the verge of a major reconstruction, it is in the clients’ best interest to spend as little as possible on legal fees. Overall, there are a significant number of benefits to the collaborative law process which make it an attractive alternative to traditional litigation.

IV. A Response to the Criticism of Collaborative Law

Collaborative law is an exciting new alternative to keep families out of the courtroom, but certain aspects of the process raise some important considerations. For instance, could the disqualification agreement serve more as a burden on the client than a benefit? And some question whether the practice follows ethical standards; is the lawyer “zealously advocating” for his or her client and can we be sure a client has given actual informed consent? Others have suggested that mediation is a sufficient process, so collaborative law is not necessary. Further, while it is accurate to say collaborative law may not be right for everyone, it is for most people.

A. Is the disqualification agreement a burden on the client?

The most controversial aspect of collaborative law is the disqualification agreement. Critics of the collaborative law process claim the disqualification agreement is actually a burden on the client. If a client decides he or she wants to terminate the collaborative law process, the client not only has to find new representation, the client also has to find all new experts to participate in the litigation process.65 Termination will result in an increase in cost and time for the client.66 In addition, clients will no longer be able to work with the lawyers they invested trust and time in.67 Therefore, in order to avoid the burdens of termination, the client could feel pressured to accept agreements that may actually not be in his or her best interest.68

Despite the potential burdens, the disqualification agreement is a significant external incentive for the lawyers and parties to settle.69 If the parties reach impasse in traditional negotiations, lawyers who are not barred from taking the issue to court usually decide too quickly that is what should be done.70 One reason for this behavior is the financial incentive to go to court; lawyers receive more money from their clients if the clients decide to litigate because it requires more time and work. Therefore, some lawyers may push their clients into litigation in order to make an extra buck.71 The disqualification agreement helps to ensure that the lawyer is advocating for the client’s best interests, and not what will make the lawyer the most money.72

If a client does not want to take a chance on agreeing to the disqualification agreement, “cooperative law” is also an option.73 This facilitative process is similar to collaborative law because it involves four-way meetings between the clients and their respective attorneys. Procedurally the two processes are about the same, but the major difference is the lack of the disqualification agreement.74 However, I wonder if the incentive to settle is really there if the lawyers and clients know they can resort to litigation at any time? Will the parties really work as hard to come up with a creative solution if they know they can always go to court? The bottom line is, the risk of litigation will always be present in cooperative law.

The disqualification agreement creates powerful incentives to search for a reasonable solution without litigation.75 In the long run, working longer and making concessions in order to reach an agreement will almost always be in the best interests of both the clients and anyone whose lives are affected by their relationship. The clients will walk away from the process knowing how to reasonably resolve future issues with one another. This will hopefully help prevent any subsequent legal battles between them. The disqualification agreement aims to help the clients and their attorneys create an mutually beneficial settlement that will help the clients preserve a peaceful relationship.

B. Is collaborative law an ethical process?

1. Zealous advocacy

Critics of the collaborative law process question whether it allows the lawyer to zealously represent the interests of the client.76 During collaborative negotiations, the lawyer is trying to create “win-win” situations that makes both clients happy.77 How is that zealously advocating the interests of the lawyer’s own client? Most clients expect their lawyers to get them the best possible deal, no matter how it affects the other party. In collaborative law, the lawyer is supposed to take the other party’s interests into consideration, along with the interests of his or her own client. Critics claim this crosses an ethical boundary.

This contention is without merit. The lawyer and client have the power to determine what zealous advocacy means by deciding beforehand the scope of the lawyer’s representation of the client.78 Model Rule 1.2 (c) states that, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”79 This rule suggests that a lawyer can still zealously advocate for his or her client while limiting the scope of the representation to the terms of the collaborative law agreement, as long as the client gives his or her informed consent to the process.80 The lawyer is therefore zealously advocating within the confines of the limited representation of the client--the pursuit of settlement.81

Further, Comment 1 to Model Rule 1.3 states that “[a] lawyer is not bound...to press for every advantage that might be realized for a client.”82 Instead, the collaborative lawyer is an “engaged moral agent” who helps the client determine and meet his or her goals of the settlement process.83 The lawyer is an advocate because the lawyer is focused on negotiating an outcome that is in accordance with the wishes of the client.84

2. Informed consent

A client must give his or her informed consent in order to ethically limit the scope of representation.85 However, some question whether the consent a client gives during the consultation actually informed. When the lawyer explains the collaborative law process to the client, some of the definitions could be abstract and meaningless to the client.86 Clients may simply agree with their lawyers because they see them in a position of authority, and as a result, they assume their lawyers know best. Also, collaborative law is a relatively new process. It is possible that aspiring collaborative law practitioners are not able to anticipate issues to warn their client about because their lack of experience has not exposed them to these potential problems.87

To be sure that the client’s consent is truly informed within the meaning of Model Rule 1.2, collaborative lawyers must clearly explain the limitations, the possible consequences, and the impact of limited representation on the client’s rights and interests.88 Collaborative law practitioners must spend an extended amount of time explaining the procedure to the client in order to be sure the client fully understands the process. Some of the more experienced collaborative law practitioners have learned how to screen their clients to determine if the collaborative law process is in the clients’ best interests.89

The problem with the existing ethical rules is that they are premised on the traditional paradigm of an attorney acting within an adversarial system.90 But ADR processes are alternatives to litigation that promote a shift away from an adversarial environment to a more facilitative one. Collaborative law practitioners are expected to conform to ethical expectations that tend to contradict the aims of the collaborative law process. For example, pure advocacy for a client is not behavior that promotes a creative and collaborative mindset.91 Therefore, it may be necessary to push for the implementation of new ethical standards to accommodate not only collaborative law, but all ADR processes.92

C. Why do we need collaborative law when there is mediation?

If divorce disputes would best be settled with an ADR process, why not utilize family mediation? Mediation takes the dispute out of the courtroom and aides the parties in creating their own settlement agreement. In mediation, the parties work with a neutral third party to resolve their divorce.93 Mediation promotes good communication between the parties, and encourages the parties to create their own solutions.94 If mediation is already accomplishing the aims of collaborative law, why adopt an additional approach?

Collaborative law practitioners are not mediators. A mediator is a neutral third-party and collaborative law practitioner is an advocate. In many jurisdictions and programs for family law disputes, the mediators work directly with the clients and the lawyers are only consulted by their clients outside the actual mediation session.95 There are jurisdictions where the lawyers are present during the mediation process, but they are limited to “advising from the sidelines.”96 Therefore, it is likely that the parties participating in family mediation will go into the process alone, and the mediator will guide both parties through the settlement process. Collaborative law provides the client with a legal advocate during the settlement process that he or she may not have in family mediation.97

1. Why clients prefer collaborative law over mediation

Collaborative law provides each party with an attorney who can be his or her advocate and legal advisor; mediators, as neutral third-parties, cannot do this for their clients.98 Many clients want a lawyer with them during the negotiations because they feel that they are weak at the bargaining table.99 In a study on the success of collaborative law conducted by Julie Macfarlane, many of the clients interviewed in the study said they chose collaborative law over mediation because they believed the presence of their lawyer would ease any feelings of intimidation and also give them greater emotional support.100 If they felt uncomfortable sharing their thoughts, the knowledge that their lawyer could speak for them in those situations made the collaborative law process more appealing than mediation.101

It is difficult for mediators to manage the power imbalances between the parties in a divorce dispute.102 Macfarlane also interviewed clients who tried mediation before using collaborative law. From these interviews, Macfarlane found the clients felt that during the mediation process “they were not making any real progress in their negotiations, which in some cases appeared to replay the dysfunctional communication patterns of the marriage.”103 The clients thought their mediators were unable to effectively address this imbalance, and therefore a fair and constructive negotiating environment was not present.104 As a result, these clients lost faith in the mediation process.105 In collaborative law, even though the ultimate goal is settlement, the lawyers are advocating for their clients, which creates a balance in power during the negotiations.

2. Why lawyers prefer collaborative law over mediation

One problem with family law mediation is family law attorneys feel they have to abandon their practice as advocating litigators to become neutral mediators.106 It has proven to be difficult to juggle both types of representation because there are few family law attorneys who succeed at maintaining a balance of mediation and representation in one professional practice.107 Therefore, lawyers believe if they become mediators they will have to leave their legal practice.108

This desire not to abandon the adversarial process may explain why critics of family law mediation claim facilitative client-based mediation has morphed into the evaluative lawyer-dominated mediation.109 The former-lawyer mediators have a difficult time abandoning their lawyering experience and background in order to effectively conduct a facilitative mediation session. As a result, this internal dilemma for the lawyer-mediators is negatively affecting the mediation process; it is causing a shift that makes mediation more like the adversarial process it was designed to replace.110

In fact, many collaborative law practitioners are former mediators who became increasingly disillusioned with the role of the mediator. They wanted to represent and advise parties in these disputes, but were restricted from doing so because of their roles as neutral third-parties.111 It may be that the collaborative law movement is a natural response to the difficulty in the shift from litigation to mediation; also called the “liti-mediation” culture.112

Families should consider both collaborative law and mediation as a better alternative to litigation. Mediation, especially mediation without the presence of any private attorneys, is only appropriate for a relatively small group of “high-functioning, low-conflict” spouses.113 Otherwise there is usually a power imbalance between these parties which a mediator alone cannot eliminate. On the other hand, collaborative law is appropriate for the vast majority of divorcing couples.114 The bottom line is clients want their lawyers by their sides to advocate for them through this stressful process, and it is possible for lawyers to be advocates while working together to reach settlement.

D. Is collaborative law the best option for everyone?

Collaborative law may not be for everyone. For example, collaborative law is probably not the appropriate process for a family violence victim to settle a divorce.115 In that situation, the decision of a judge would most likely afford that type of individual more appropriate protection and remedies.116 Sometimes people involved in a dispute need a judicial determination of a preliminary question of law or fact before they can proceed with any type of negotiation.117 This is not a problem; these individuals can agree to participate in collaborative law afterwards.

Collaborative law is not for people who want revenge on their former spouse. If a client is vengeful, the process will most likely be ineffective because this client is not focused on collaboration or solutions.118 Collaborative law practitioners recognize that initially a client may demonstrate feelings of animosity towards the other party, but after a lengthy initial consultation, a trained collaborative lawyer should be able to decipher if the client would be an appropriate candidate for the process.119 Overall, if the parties place a high value on reaching an agreement and avoiding the adversarial pressures of contested litigation, collaborative law would be an appropriate choice as a dispute resolution process.120

V. Empirical Studies on whether Collaborative Law is Successful

Dr. Julie Macfarlane, has published her preliminary results of the first longitudinal study of collaborative law, The Collaborative Lawyering Research Project.121 Her study involved in-depth interviews at the beginning, middle and end of the collaborative process with the collaborative lawyers, clients, and the neutral experts involved.122 The study was conducted in five major cities in the United States and Canada: San Francisco, Minneapolis, Vancouver, Medicine Hat (Alberta) and Regina.123 The research was intended to “generate results that will help improve collaborative practice by identifying discrepancies between client and attorney perceptions and expectations derived from specific situations.”124

The study set out to interview recently retained collaborative lawyers and their clients.125 Each individual participant agreed to be interviewed three separate times throughout his or her respective case.126 The participants were asked many questions about four main areas concerning the practice of collaborative law.127 Those areas are the negotiations, the role of advocacy, the ethical issues, and the relationship between collaborative lawyering and mediation.128

A. Findings on Negotiations in Collaborative Lawyering

In this area of the study, Macfarlane sought to understand how “different...negotiations in a collaborative law case [are] compared to traditional negotiations.”129 Macfarlane asked the collaborative lawyers questions to obtain information to help her compare and contrast the characteristics of the approaches used in both types of negotiation. She explained that a majority of participants found that collaborative law “reduces the posturing and gamesmanship of traditional lawyer-to-lawyer negotiation, including highly inflated and lowball opening proposals.”130 Macfarlane’s findings suggest that the actual structure of the collaborative law process prevents the parties from attempting to positionally bargain.131 Overall, Macfarlane found that the “evidence suggests that the collaborative process fosters a spirit of openness, cooperation, and commitment to finding a solution that is qualitatively different...from conventional lawyer-to-lawyer negotiations.”132

B. The Role of Advocacy in Collaborative Lawyering

Macfarlane asked the clients and lawyers questions to understand their thoughts on the advocacy role and responsibilities of the lawyer, in order to determine if the lawyers’ view of advocacy matched the expectations of the clients. The evidence demonstrated that many of the lawyers felt their role as advocate was to maintain a strong loyalty to their client, no matter how committed they were to facilitating an agreement with the other side.133 Despite this belief, there were situations in which the client and the lawyer had different ideas of how the lawyer would advocate for them during the negotiations. For example, some collaborative law centers require their lawyers to refrain from providing legal advise specific to their client’s case, which in turn confused the clients’ basic understanding of the lawyers’ role as an advocate.134 Macfarlane found that in order to ensure the lawyers and the clients have the same goals and expectations of how to advocate, it is essential that the lawyers clarify the difference before the client agrees to participate in the process.135

C. Ethical Issues in Collaborative Lawyering Process

The study is interested in understanding the types of strategic and personal choices collaborative lawyers are making in their practice to resolve any ethical dilemmas that may arise in the collaborative law process.”136 The study has found that a majority of collaborative lawyers hardly recognize potential ethical dilemmas in the collaborative process.137 On the other hand, the clients revealed during the interviews that they were concerned about some ethical issues. Macfarlane found that the main ethical issue clients discussed was the “quality and depth” of informed consent.138 This demonstrated that there are conflicting expectations of the clients and the lawyers, which in the long run, could result in undermining the credibility of the collaborative law process.139 Therefore, in order to ensure collaborative law is an ethically acceptable process, lawyers need to be sure that their clients actually give legitimate informed consent to participating in collaborative law.140

D. The Relationship between Collaborative Lawyering and Mediation

In this portion of the study, Macfarlane aimed to “explore the attitudes of CL lawyers towards mediation” and also ask clients to explain why they chose collaborative law over mediation.141 Macfarlane found “the [clients’] reasons for preferring CL are almost always described in terms of ‘doing better,’ including reducing the risk of getting a bad deal or simply giving away too much, and equalizing what they otherwise regarded as an uneven negotiation.”142 The collaborative lawyers explained they believe their coaching and facilitative skills are necessary to ensure their clients’ needs are met, but in a mediation setting the lawyers are not encouraged to use those skills.143 It has been said that there is some “sibling rivalry” present between mediation and collaborative law, but efforts are being made to build a better relationship between the two processes because they are each important alternatives to litigation.144

Macfarlane’s preliminary results from the case study reveal the successes and important challenges of the collaborative law process.145 One reoccurring theme in the areas addressed is how necessary it is for lawyers to not only clearly explain the process to their client, but to take action to ensure that the clients’ and lawyers’ expectations about the process are the same. Otherwise, it will most likely be the clients’ expectations who are compromised, and as a result, they will walk away from the process feeling misled and unsatisfied. Overall, this study demonstrates that the collaborative law process definitely has its own place in ADR, and its successes will help in promoting the collaborative law movement.

VI. The Collaborative Law Movement: The Need for More CL Practitioners

A. The Collaborative Law Movement: Past and Present

Starting in the late 1990s, collaborative law practitioners began a collaborative law movement in many North American cities by developing local collaborative law training groups and practice protocols.146 Also during this time, collaborative law practitioners developed practice groups all over the nation to train, network, socialize and publicly identify local collaborative law practitioners.147 The practice groups were the main means to identify collaborative law practitioners and attract clients to the process. But these practice groups were on there own; there was nothing unifying the practice groups and there was a lack of universal standards for the practice.

In response to this need, in 1999 the International Academy of Collaborative Professionals (IACP) officially formed.148 The IACP is an international interdisciplinary organization consisting of lawyers and related professionals who practice collaborative law.149 The IACP has created uniform definitions and standards of the collaborative practice, and it has also proposed a model code of ethics for collaborative law.150 It has made itself an accessible organization, with a web site that aides clients in locating collaborative law practitioners, and it also serves as a resource for professionals involved in collaborative law.151 As of now, the IACP web site has listed a total of 168 practice groups found in six different countries that are affiliated with the IACP.152

Along with the emergence of numerous practice groups, the collaborative law movement progressed through other avenues. By 2000, collaborative law journals were started, major professors were publicly recommending the process, and the American Bar Association Section of Family Law published a collaborative law manual with practice forms.153 In 2001, state legislatures finally took action to promote collaborative law. The state of Texas enacted the first statute authorizing the practice of collaborative law.154 In 2003, several law schools began offering courses on collaborative law, including Hamline University School of Law, Santa Clara University School of Law, and the University of British Columbia Faculty of Law.155 By 2004, more than 5,000 lawyers had been trained in the collaborative legal model in North America.156

But the collaborative law movement is not growing as rapidly as it could. Establishing practice groups in major metropolitan areas has not been a challenge; the struggle lies with maintaining the practice groups in some of the smaller cities.157 One reason for this is that out of necessity, many of the practice groups are run by volunteer lawyers or other professionals, and it is difficult for these individuals to juggle the practice group and their own busy professional lives.158 The fate of a practice group is dependent on the time put into maintaining it, and unfortunately, the people that are advocating for collaborative law in these smaller cities are people that already have a lot on their plates. If more lawyers joined the collaborative law movement and practice groups, the time needed to maintain a practice group could be distributed in a more manageable way so all the members will have time to maintain their own practices.

Another problem practice groups face is not having sufficient funds. One area requires a lot of financing is marketing.159 But this expense is essential because marketing is a main method to educate professionals and potential clients about the process. Many practice groups collect dues from their members, but these are usually annual, so there is not a consistent, timely source of income.160 It is necessary to have these practice groups available if the collaborative law movement is to continue to grow because the groups have become the main local resource for anyone interested in participating in collaborative law.

B. Why More Lawyers Should Practice Collaborative Law

The more lawyers who practice collaborative law, the more disputes collaborative law will resolve. Collaborative law has the potential to benefit disputes in any area of law in which a functional future relationship between the parties is important. But at this point, collaborative law remains potential. It has yet to become the primary means to resolve divorce disputes. And only recently has the legal world realized the collaborative law process is a useful means to peacefully resolve employment disputes. The collaborative law movement has laid a strong foundation, but it is up to the legal community to build upon it.

One inevitable reason for the small number of collaborative law practitioners is that this is a very new process. Despite the efforts of collaborative law movement, many lawyers still do not know what collaborative law is. Another challenging reason for the small number of practitioners is the stigma attached to ADR processes. Some larger firms tend to put ADR processes on the back burner. For example, in a large firm where billable hours is a main priority, the lawyers want cases that go to trial because they are guaranteed more hours.161 It cannot be denied that a firm will accumulate more billable hours if their lawyers spend a majority of their time litigating than if they were practicing collaborative law.

Some larger firms work with big clients that believe litigating will be more beneficial to them than settling. If the firm were to advise this type of client to consider settling instead of litigating, the client could very easily walk out the door and go to another firm. Therefore, in circumstances like that, these firms will not consider using a process like collaborative law because they do not want to lose these important clients.162 In addition, some lawyers plainly do not want to use an ADR process because they enjoy representing their clients in an adversarial context.

But these lawyers that are skeptical about the process should realize that collaborative law offers many benefits that the typical practice does not. Collaborative law is unique in the sense that it is one of the only processes in which two lawyers actually work together in the same room with their respective clients, striving to reach mutual goals through an agreed process that explicitly precludes litigation.163 The lawyers’ relationship with one another is a positive one because for once they are able to trust one another.164 And in the end, the parties are grateful for the assistance of both lawyers, another unique aspect of collaborative law.165

Family law “burnout” was what spawned the creation of collaborative law.166 Family law is a stressful and emotionally exhausting area of practice. A family law attorney that participated in Macfarlane’s study stated, “In litigation, even if you got a good legal result for the client...at the end of it there is just depression and ashes. It leaves more than a sour taste--it leaves a sickness in the stomach of the client, and in mine too.”167 Unlike litigation, collaborative law can provide family law attorneys the opportunity to do what first attracted them to family law, namely to help families with the difficult process of divorce by promoting cooperative, rather than adversarial, behavior.168 Collaborative law coincides with many lawyers’ value systems and makes them feel good about what they are trying to accomplish.169 Plus, the burden of being primarily responsible for the outcome is lifted from the lawyers’ shoulders because the outcome is decided by all the parties involved.170

Family law can also be a challenge procedurally. There is a great deal of stress involving paperwork and arbitrary deadlines in this area of practice.171 Many family law firms have found it necessary to hire a number of legal assistants to make sure all the paperwork is done properly.172 Collaborative law requires very little formal documentation; therefore, less hired help is needed, and the stress level caused by the paperwork is substantially lessened.173 This could be a major benefit to small firms who do not have enough staffing and time on their hands.174

Lawyers may fear they will be dissatisfied with their family law practice if they switch from litigation to an ADR process.175 For example, some lawyers who switched from litigation to mediation became dissatisfied because they felt they had completely abandoned the practice of law. Collaborative law solves that problem; the lawyer will be involved in an ADR process and still be able to practice law.176 Furthermore, in order to become a trained collaborative law practitioner, a lawyer must learn psychological theory as well as some new communication skills and develop thorough mastery of negotiating theory and technique.177 Therefore, a collaborative law practitioner can continue practicing law, but also fine tune and utilize new skills that will make the job more intellectually stimulating and rewarding.

Collaborative law is not a practice that must exclusively be used in divorce settlements. A movement towards applying the collaborative law process to other types of legal disputes has recently developed.178 For example, though within family law area, there has been discussion about using collaborative law for prenuptial agreements.179 In Cincinnati there is a movement for using the collaborative law process in employment and business disputes.180 There are conflicts that take place in the business environment that could benefit from using collaborative law because the lack of the adversarial element helps preserve and maintain relationships.181 In all actuality, a majority of the benefits of collaborative law make the process an appealing one for most areas of law.

There is a call for more collaborative law practitioners because the future of this process depends on its growth in use. Big firms have some reasons to avoid using collaborative law, but if they have it as an option for clients, it can help increase the firm’s rate of client satisfaction. Not every big client feels litigation is the best option. The privacy, efficiency, and peaceful nature of the process is very appealing to all types of clients. The more lawyers that utilize collaborative law, the more other lawyers will learn about it and try using it themselves. This type of momentum will help ensure the growth and success of the collaborative law movement.

VII. Conclusion

“The collaborative law movement presents an exciting opportunity for intentional development of legal culture, theory, and practice.”182 Many family law attorneys predict that by the second decade of this millennium, collaborative law will become the first resort for the resolution of family law disputes.183 But the success of the collaborative law movement is contingent on the efforts of those who support the process.

The collaborative law practice groups are working hard to educate their communities about collaborative law. Some practice groups require their members to commit to speak about collaborative law at least several times each year at civic, church, professional, or other community meetings.184 This method, and other strategies for creating awareness about collaborative law, have proven to be effective. Collaborative law has now gained even more support from other types professionals, such as religious leaders, mental health professionals, business and tax advisors, and even public service radio and other media, who have also begun to promote the movement.185

The actual practice of collaborative law will also determine the success of the movement. As the study of the collaborative law process demonstrated, collaborative law practitioners must make considerable efforts to make sure they fully understand the needs and expectations of their clients. The satisfaction of the collaborative law clients will ensure collaborative law is recognized as a credible process. And in turn, the satisfaction of the clients reward the collaborative law practitioners and motivate them to continue advocating for the process. Therefore, with support, promotion, and effective practice by its advocates, collaborative law will no longer just have potential. It will become a main method to remove clients from the war zone of litigation and into a peaceful venue to resolve conflict.

1 Pauline H. Tesler, Collaborative Family Law, 4 PEPP. DISP. RESOL. L.J. 317, 321 (2004).
2 Id.
3 Id.
4 Id. The amount of emotional trauma that results from divorce is “second only to the death of a spouse.” Id.
5 Id. at 322. In court, there is little participation on the part of the client, privacy is lost, and hardly any attention is given to the many future interests of both parties that could enrich the settlement prospects and outcomes. Id. at 327.
6 On the topic of litigating divorce disputes, one family law attorney has said, “Spouses are an open book to one another, and the language of affidavits attacks all the vulnerabilities of the other; this is destructive between spouses as well as for kids.” Julie Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. DIPS. RESOL. 179, 191 (2004).
7 Tesler, supra note 1, at 322. Many studies have documented “the substantial harms inflicted upon children by high conflict divorces in which parents use the courts as a battleground for seeking redress for deep emotional pain that the courts cannot possibly remedy.” Id.
8 Zachary Z. Annable, Note, Beyond the Thunderdome--The Search for a New Paradigm of Modern Dispute Resolution: The Advent of Collaborative Lawyering and Its Conformity with the Modern Rules of Professional Conduct, 29 J. LEGAL PROF. 157, 159 (2005).
9 Id.
10 John Lande & Gregg Herman, Fitting the Forum to the Family Fuss, 42 FAM. CT. REV.. 280, 281 (2004).
11 William H. Schwab, Collaborative Lawyering: A Closer Look at an Emerging Practice, 4 PEPP. DISP. RESOL. 351, 355 (2004).
12 Id.
13 Id.
14 Id.
15 Joshua Isaacs, Note, A New Way to Avoid the Courtroom: The Ethical Implications Surrounding Collaborative Law, 18 GEO. J. LEGAL ETHICS 833, 834 (2005).
16 Lande & Herman, supra note 10, at 281.
17 Gay. G. Cox & Robert J. Matlock, The Case for Collaborative Law, 11 TEX. WESLEYAN L. REV. 45, 45-46 (2004).
18 Lande & Herman, supra note 10, at 283.
19 See discussion infra Part VI.
20 Cox & Matlock, supra note 17, at 64.
21 Id.
22 Isaacs, supra note 15, at 838. The lawyer must be sure the client gives his or her actual informed consent so that the lawyer does not violate Model Rule 1.0 (e). Id.
23 Schwab, supra note 11 at 358.
24 James K.L. Lawrence, Collaborative Lawyering: A New Development in Conflict Resolution, 17 OHIO ST. J. ON DISP. RESOL. 431, 436 (2002). See also Schwab, supra note 11, at 361-365 (explaining that if a lawyer does not follow the good faith approach to full disclosure, the lawyer will receive a reputation for not doing so, and as a result, other collaborative law practitioners will not collaborate with the lawyer; in the case it is the client who choses not to reveal information, the lawyer can advise the client to reveal or the lawyer can withdraw, which his ensures that confidentiality is maintained).
25 Id. “The only exception to this rule would be if the information would later be needed to enforce an agreement or settlement reached through collaborative lawyering.” Id.
26 Tesler, supra note 1, at 319. The disqualification agreement is the main procedural factor that differentiates collaborative law from conventional negotiations. In collaborative law, neither party can invoke the leverage of threatening to take the case to court. In other types of negotiations, the threat to litigate is still available. Id.
27 Isaacs, supra note 15, at 834.
28 Id. at 834. See also Schwab, supra note 11, at 359 (explaining that the disqualification agreement is designed to lower the value of both parties’ BATNA (best alternative) to try to keep them at the bargaining table).
29 Tesler, supra note 1, at 319.
30 1 DAVID HOFFMAN & PAULINE TESLER, ALT. DISP. RESOL. PRAC. GUIDE § 41:6 (2005). Some examples of types of neutral experts that could be used are: a financial consultant (to teach money management skills, analyze records, assist with budgeting decisions, and project long-term financial situations), a CPA (to advise on tax issues, and value business interests), an insurance consultant (to help plan for post-divorce insurance coverage), property appraisers, a vocational consultant (to help generate career alternatives), a child development specialist (to advise parents on parenting issues); communication skills coaches (to assist parties with communication skills in order to more clearly express themselves). Id.
31 Schwab, supra note 11, at 360. The “dueling experts” may have conflicting opinions on issues such as the fair market value of the parties’ home or custody arrangements for the children. Chances are experts will present their information in the light most favorable to their respective clients, removing any objective credibility of their testimony. Id.
32 Lawrence, supra note 24, at 436.
33 Id. at 436.
34 Cox & Matlock, supra note 17, at 56. If the parties go to arbitration, it must be limited binding or non-binding arbitration. Id. In Minnesota, “If the parties to a collaborative law process reach impasse, they may use an evaluative or facilitative process to assist in breaking the deadlock, but they shall not utilize an adjudicative process.” 14 Minn. Prac., Family Law § 25.6 (2d ed. 2005). See also Lawrence, supra note 24, at 437 (stating that the Collaborative Law Center (CLC) in Cincinnati, Ohio requires parties who reach impasse in collaborative law, to go for mediation before terminating the process).
35 Isaacs, supra note 15, at 836. Sometimes it is also difficult for a client to have to go through the process of telling their story all over again to another lawyer. Id.
36 Pauline H. Tesler, Collaborative Law Neutrals Produce Better Resolutions, 21 ALT. TO HIGH COST LITIG. 1, 12 (2003).
37 Lawrence, supra note 24, at 436. It is possible it may mean actually going to court for a client to realize a settlement would be better than winning or losing at trial. In that case, clients may recall their collaborative lawyers to work with them in collaborative negotiations for settlement. Id.
38 Cox & Matlock, supra note 17, at 65. For example, the lawyers can invite a mental health professional to come to the first meeting because usually the intial focus will be on the emotional needs of the clients. Id.
39 Id.
40 Cox & Matlock, supra note 17, at 65. Most likely a lot of immediate issues have not been addressed by the parties, especially issues concerning changes in lifestyle. Addressing these issues first is essential in order to have both parties focus on progressing through the issues. Otherwise, the pressing issues will be on the parties’ minds and chances are nothing will be accomplished in the sessions. See id.
41 Lande & Herman, supra note 10, at 283.
42 Cox & Matlock, supra note 17, at 66.
43 Id. at 66. Also, between meetings, the lawyers often talk to each other, plan the agenda for the next meeting, and each lawyer will also have private discussions with his or her client. Id.
44 Id. at 66. If the parties want to bring in any neutral experts, this is when they usually do so. Id.
45 Id.
46 Id. at 51.
47 Id. at 50 (citing Tex. Fam.Code, § 6.603 and Tex. Fam. Code, § 153.0072). But the parties must file a status report with the court “no later than the 180th day after the date of the written agreement” to use collaborative law, and they must file a status report on or before “the first anniversary of the date of the written agreement” as well. Tex. Jr. 3d Family Law § 482 (2005). The courts want to be sure the parties are following through with the collaborative law process to provide a speedy finalization of the dissolution. See id.
48 1 Jay E Grenig, ALT. DISP. RESOL. § 21:53 (3d ed. 2005).
49 Id. at § 21:53. See also Gregory Firestone & Janet Weinstein, In the Best Interests of Children, 42 FAM. CT. REV. 203, 204 (2004) (explaining that there is no healing element in litigation to help mend relationships that have been damaged or to promote healthy future interactions between the parents); Susan Gamache, Collaborative Practice: A New Opportunity to Address Children’s Best Interest in Divorce, LA. L. REV. 1455, 1455 (2005) (explaining that parental conflict due to divorce has been found to be predictive of many serious and ongoing problems for children).
50 Tesler, supra note 36, at 11.
51 Firestone & Weinstein, supra note 49, at 204. See also 1 GRENIG, supra note 48, at § 21:50 (explaining that collaborative law helps teach the parties better communication and negotiation skills that they can carry with them into the future to minimize any future conflict).
52 Tesler, supra note 36, at 11.
53 Isaacs, supra note 15, at 837.
54 Firestone & Weinstein, supra note 49, at 204. The parents most likely know what will be best for their children, yet a court may decide that what the parties have to say about it is irrelevant. Id.
55 Cox & Matlock, supra note 17, at 47. The parties may not have the opportunity to tell their whole story in court because no one asked for it while they were testifying. Id.
56 Id. at 55. supra
57 1 GRENIG, supra note 48, at § 21:53.
58 Cox & Matlock, supra note 17, at 54.
59 Lawrence, supra note 24 at 436.
60 Cox & Matlock, supra note 17, at 51.
61 Id.
62 Id. at 59. A litigating attorney can also practice collaborative law because collaborative law meetings can be scheduled around a busy litigation docket. Id.
63 Isaacs, supra note 15, at 836. See also Cox & Matlock, supra note 17, at 52 (explaining that fees for collaborative law vary from $5,000 to $30,000, depending on how many issues are involved).
64 Cox & Matlock, supra note 17, at 52.
65 Isaacs, supra note 15, at 834.
66 Lande & Herman, supra note 10, at 283. If the collaborative law process breaks down, the clients remain responsible for paying their respective collaborative lawyers for time spent on the case, and they are then faced with the problem of advancing another retainer for a new attorney. Schwab, supra note 11, at 356.
67 Id.
68 Id. at 284. In addition, the possibility of losing the case in the event of termination may create an incentive for the collaborative lawyers to pressure their client into a settlement that might not be in his or her best interests. Issacs, supra note 15, at 838.
69 Tesler, supra note 1, at 320.
70 Id. “It is a common saying among trial lawyers that the best way to prepare for settlement is to prepare well for trial.” Id. at 322. The disqualification agreement pushes lawyers to think of collaborative solutions instead of the “my way or no way” mentality. See id.
71 Lande & Herman, supra note 10, at 283.
72 Annable, supra note 8, at 160. The disqualification agreement helps eliminate threats, tactical delays, and hidden agendas so the parties can be integrative and focus on achieving “win-win” situations instead of resorting to positional bargaining. Id.
73 Isaacs, supra note 15, at 835. Isaacs claims that cooperative law is more of a gamble than the collaborative law process. Id.
74 Id. Advocates of collaborative law claim the lack of the disqualification agreement gives no guarantee that the party is committed to avoid litigation, so essentially it is no different than traditional negotiations. Id.
75 Cox & Matlock, supra note 17, at 67.
76 Specifically, Comment 1 of Model Rule 1.3 states, “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Model Rules of Prof’l Conduct R. 1.3 cmt. 1 (2005).
77 Annable, supra note 8, at 164.
78 1 HOFFMAN & TESLER, supra note 30, at § 41:11.
79 Model Rules of Prof’l Conduct R. 1.2 (2005).
80 Schwab, supra note 11, at 364. Further guidance is found in Comment 6 to Model Rule 1.2 which states, “A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives.” Model Rules of Prof’l Conduct R. 1.2 cmt. 6 (2005).
81 Annable, supra note 8, at 164.
82 Model Rules of Prof’l Conduct R. 1.3 cmt. 1 (2005). See also John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 OHIO ST. L.J. 1315, 1334 (2003) (stating that empirical observations of lawyering practice reveals that most lawyers do not believe they must press for every possible advantage and most lawyers do not usually behave that way).
83 Annable, supra note 8, at 163. Collaborative law helps eliminate the “puffing, posturing, and position” that some people incorrectly believe is effective advocacy. Id.
84 Isaacs, supra note 15, at 838.
85 Model Rules of Prof’l Conduct R. 1.2 (2005). supra
86 Macfarlane, supra note 6, at 209. See infra Part V.B-C.
87 Id. at 209.
88 Larry R. Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation Can Be Ethically Incorporated into the Practice of Law, 56 BAYLOR L. REV. 141, 161 (2004). Lawyers must have an assurance that the client has been fully informed, completely understands all aspects of the collaborative law process, and understands the roles of all parties involved in the process. Id. See also 1 HOFFMAN & TESLER, supra note 30, at § 41:11 (explaining that the crucial ethical obligation for a collaborative law practitioner is to fully inform the client and provide the client with an objective opinion about the advantages and disadvantages of the process).
89 Macfarlane, supra note 6, at 191. Those lawyers do turn away clients who they believe are unsuited for the collaborative law process. Id.
90 Spain, supra note 88, at 153-7. Ethical issues are raised concerning new ADR processes such as collaborative law, and because the ethical rules were not designed with these processes in mind, there are no clear answers to these ethical questions. Id. at 157.
91 Annable, supra note 8, at 165. See also Firestone & Weinstein, supra note 49, at 204 (explaining that this type of adversarial behavior may also be counter to the best interests of a child involved in the dispute, and it is argued that such advocacy tends to further escalate existing conflict between the parties and cause greater harm to the child).
92 Id. at 165. Within a new code of ethical standards, there would have to be differentiating standards for the different ADR processes because the lawyer plays a different role in many of them. That is intrinsically the problem with the current standards; they were created under the presumption that the only role of the lawyer is the adversarial advocate. See also Tesler, supra note 1, at 334 (explaining that there has not been an ethical opinion that has concluded that practitioners of collaborative law are outside either professional ethical guidelines or standards for the practice of law).
93Gamache, supra note 46, at 1460.
94 Id.
95 Macfarlane, supra note 6, at 182. See also Schwab, supra note 11, at 360 (explaining that in divorce mediation lawyers typically do not participate in the actual settlement process).
96 Lande, supra note 82, at 1325. See also Schwab, supra note 11, at 360 (explaining that even if lawyers are allowed to be involved in the mediation process, they are very adversarial and not as focused on settlement as a collaborative law practitioner would be).
97 William H. Schwab, Collaborating In Divorce, 11 No.4 DISP. RESOL. MAG. 13, 13 (2005).
98 Lande & Herman, supra note 10, at 283. Collaborative law practitioners are not required to be neutral, so they can strongly advocate their client’s interests and positions. This type of assistance helps those clients who feel intimidated at the bargaining table. See id.
99 Tesler, supra note 1, at 325.
100 Macfarlane, supra note 6, at 213.
101 Id. At times a party can feel the emotional stress of their relationship with the other party, which reminds them why they are there. This can make it difficult to speak for fear that the discussion will escalate into an argument. Clients feel that in those situations their lawyer can take the reigns and advocate for them in a less confrontational way. See id.
102 Lande, supra note 82, at 1324. Not only is it difficult for a mediator to manage the power imbalances, but also the emotional dynamics of the parties. Id.
103 Macfarlane, supra note 6, at 212. One client stated, “My concern was that I would not have legal representation in mediation, and I felt I did not know a lot about this arena--my husband is more experienced than me because he has been married before--and besides, he negotiates for a living.” Id. at 212-213.
104 Id. These are clients who did not have their own lawyers present during the mediation. Id.
105 Id.
106 Spain, supra note 88, at 146. Some attorneys felt they were facing an ethical dilemma by allowing their clients to participate in mediation, which to them was a more informal process with outcomes less certain. Id. Going from a lawyer to a mediator can be difficult because of the background, training, and experience of a lawyer is much different than that of a mediator. Id. at 147.
107 Macfarlane, supra note 6, at 182. “The small number of family law lawyers who have been successful in developing large family mediation practices often abandon the legal practice altogether.” Id. at 181.
108 Tesler, supra note 1, at 318. Tesler explains that, “the decision by a family lawyer to become a mediator instead of a litigator...requires an immense and difficult step: leaving the practice of law. Because collaborative [law]...allows family law attorneys to represent clients in the role of advocate...the switch from conventional lawyering to collaborative law is...a short step through an open door into a different approach to lawyering.” Id.
109 Id. at 184.
110 Spain, supra note 88, at 147.
111 Id. at 150.
112 Id. See also Tesler, supra note 1, at 318-9 (explaining that in collaborative law, lawyers can become a part of a “helping profession” while maintaining their identity as a practicing lawyer).
113 Lande, supra note 82, at 1325. See also Macfarlane, supra note 6, at 214 (explaining that many collaborative law practitioners believe that mediation is a constructive process for some higher functioning, self confident and articulate clients, but collaborative law is appropriate for a much wider range of clients and levels of conflict).
114 Id. Collaborative law may not be appropriate for a small number of couples who are so low-functioning or have so much conflict that they require traditional adversarial lawyers to litigate and judges to decide the outcome of their divorce. Id.
115 Cox & Matlock, supra note 17, at 57.
116 Id. In addition, no one who feels that he/she has been coerced into submitting to the process of collaborative law should participate in it. Id.
117 Id.
118 Id. Someone who wants vindication in a public forum would not be satisfied with the collaborative law process. Id. See also Susan M. Buckholz, Two Views on Collaborative Law, 30 VT. B.J. 37, 38 (2004) (explaining that dishonest parties looking for strategies to gain advantage over the other party are not good candidates for the collaborative law process, making it necessary for attorneys to screen for these types of clients).
119 Macfarlane, supra note 6, at 210.
120 Lande & Herman, supra note 10, at 285.
121 Macfarlane, supra note 6, at 179. Dr. Macfarlane has a Masters in Law degree from the London School of Economics and she later earned her Doctorate of Law degree. She is an Associate Professor at the Faculty of Law, University of Windsor, Canada, and an experienced practitioner and consultant on mediation and facilitation. DRS Professionals, http://www.drs-adr.com/popups/popup_julie_macfarlane.html (last visited Feb. 4, 2006). This study was funded by the Social Science and Humanities Research Council of Canada and the Canadian Department of Justice from 2001-2004. Id. at 187.
122 Tesler, supra note 1, at 335.
123 Id.
124 Id.
125 Macfarlane, supra note 6, at 188. The conductors of the study interviewed four “groups” (each group consisted of the people working on a single case; this included the collaborative lawyers, their clients, and any neutral experts brought in to help on this case) in each city that participated. Id. The study focused on sixteen case studies (conducted from 2002-2004), which generated 151 interviews. Id. at 189.
126 Id. The interviews were usually conducted at the outset of the case, midway through the case, and after the file was resolved. The files were resolved with either collaborative law or termination of the process. Id.
127 Id. at 189.
128 Id. at 189-190. Macfarlane gives a very detailed analysis of the results of each area discussed with the participants. For purposes of this article, only a brief overview is necessary.
129 Id. at 194. Macfarlane explained that, “This study asks CL (collaborative law) lawyers to assess the extent to which integrative, problem-solving approaches are being used in collaborative negotiations; and how often collaborative lawyers fall back on positional negotiation styles.” Id. at 195.
130 Id. at 195. Specifically, Macfarlane asked the lawyers whether they used problem-solving approaches during the negotiations, or if they fell back on positional bargaining styles. Id.
131 Id. at 195-196.
132 Id. at 200. In the first few meetings, the parties are focused on reviewing the participation agreement, information gathering, and creating a rough timeline of the process. After all of this, each party has a clearer understanding of what the other party wants and expects, which results in the parties acting more cooperatively than in positional bargaining, where the opening meetings may begin with unrealistic opening offers. Id.
133 Id. at 204. However, Macfarlane also explained that “some CL lawyers admit that they find some tension between the desire to find solutions that meet the needs of the whole family, and their commitment to empowering their own client.” Id. at 206.
134 Id. at 207. Some clients do not fully comprehend that their collaborative law lawyers will not play the role of a traditional advocate. Id.
135 Id. at 207-208.
136 Macfarlane, supra note 6, at 208. Specifically, “which such dilemmas are anticipated by CL lawyers, and second, how CL lawyers are exercising their discretion in these situations.” Id.
137 Id. Many of the lawyers admitted that they have not had a lot of actual cases and experience in order to see those potential ethical dilemmas. Id.
138 Id. at 209. A lot of the definitions given by the lawyers to the clients are fairly abstract and the clients may not fully comprehend their significance. Plus, the fact that many collaborative law practitioners have not had many collaborative law cases helps explain why lawyers may not foresee the ethical issues that may arise. Id.
139 Id. at 209-211. Lawyers who practice collaborative law should be aware of criticism of the process and be ready to address issues that may arise. Id. at 211. Macfarlane emphasizes that, “The responsiveness of the CL movement to charting this hitherto unknown territory will be important in establishing its legitimacy and credibility.” Id. at 211-212.
140 See discussion supra Part V.B.2.
141 Id. at 212. Macfarlane spoke to clients who had tried mediation before coming to collaborative law, and clients who had not tried mediation, but chose collaborative law over mediation. Id.
142 Id. Many clients also expressed that they felt they would be “emotionally protected better” in collaborative law than in mediation. Id. at 213.
143 Macfarlane, supra note 6, at 214. There was also discussion from the collaborative lawyers that the structure of most family mediation removes the lawyer from “important moments of grace” that take place during the mediation. The lawyers are essentially there to legally assess the end result of the process instead of being an active participant to ensure its success. Id.
144 Id. at 216.
145 Id. According to Macfarlane, “The final results of The Collaborative Lawyering Research Project will cover a wider range of issues in greater depth, and will be supported by systematic coding of all interview data. However, the patterns and themes identified in this article are unlikely to change.” Id.
146 Lande & Herman, supra note 10, at 281.
147 Lande, supra note 82, at 1326. In addition, many collaborative law proponents wrote articles in professional journals to discuss and advocate for collaborative law. Id.
148 1 GRENIG, supra note 48, at § 21:50.
149 Pamela H. Simon, Collaborative Law Bulletin: Where Are We Now?, 29681 NBI-CLE 153, 154 (2005). See also Gamanche, supra note 49, at 1480 (stating that the IACP provides supportive structures to collaborative law practitioners in Canada, the United States, England, Ireland, Austria, Australia, and more).
150 1 GRENIG, supra note 48, at § 21:50.
151 International Academy of Collaborative Professionals, http://www.collaborativepractice.com (last visited Feb. 11 2006).
152 International Academy of Collaborative Professionals, http://www.collaborativepractice.com/index.cfm/hurl/obj=groupList (last visited Feb. 11 2006). There are approximately 137 practice groups in the United States, 26 in Canada, 2 in England, 1 in Austria, 1 in Scotland, and 1 in Switzerland. The states that currently have collaborative practice groups are: Arizona, California, Colorado, Connecticut, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Utah, Virginia, Washington, and Wisconsin. Id.
153 Lande, supra note 82, at 1327. The American Institute of Collaborative Professionals began publishing a journal called, The Collaborative Quarterly. Harvard Law Professor Robert H. Mnookin recommended that lawyers use collaborative law to create incentives for problem-solving. And, the ABA published the manual on collaborative law in 2001. Id.
154 Tesler, supra note 1, at 334 (stating actual wording of the official statute).
155 Lande, supra note 82, at 1327-8.
156 Tesler, supra note 1, at 335.
157 Simon, supra note 149, at 155.
158 Id. at 156. Another reason why the groups are hard to maintain is that it is difficult to keep those initial feelings of determination and euphoria when progress is slow and dependent on volunteer work. Id.
159 Id.
160 Id. Also, the time lag between collecting dues and actually seeing the marketing can be frustrating for the members; they pay their dues and want to see immediate promotion. Therefore, it is necessary for the practice groups to start a newsletter informing their members of what is going on, and where their money is going. Id.
161 Isaacs, supra note 15, at 841. This could be a good thing; some feel this fact will weed out some bad intentioned lawyers who drag out settlement processes in order to receive more billable hours. Id.
162 1 HOFFMAN & TESLER, supra note 30, at § 41:12.
163 Id. at § 41:5. This process can help liberate remarkable creative energies of the two lawyers working together to come up with the best possible settlements for their clients. Id.
164 Cox & Matlock, supra note 17, at 63.
165 Id. at 61-2.
166 See supra p. 2 and note 10.
167 Macfarlane, supra note 6, at 191. Pauline Tesler, one of the main founders of collaborative law, said that, “[M]any family lawyers suffer considerable professional angst as a consequence of their awareness that family law courts are neither safe nor effective places for clients to resolve divorce-related disputes...” Tesler, supra note 1, at 318.
168 Lande, supra note 82, at 1381.
169 Cox & Matlock, supra note 17, at 58. Over time many family lawyers have come to believe that the adversarial system itself inflicts its own kind of abuse on families, especially children. Id. at 59.
170 Id. at 61.
171 Id. at 60.
172 Id. “The joy went out of family law for many lawyers when it evolved into a paper chase, following the pattern of civil lawsuits. Hovering over everyone was the mound of paperwork that, if not handled in a timely fashion, would result in dire consequences to one’s clients and major exposure to malpractice claims.” Id.
173 Id. at 59-60. Because collaborative law helps lawyers with time management, it can be practiced in tandem with other fields of law. Id. at 59. The practice revolves around the schedules of the lawyers and the clients, so all parties can be the masters of their schedules rather than the court dockets. Id.
174 1 HOFFMAN & TESLER, supra note 30, at § 41:12 (2005). Collaborative law also helps take away any unnecessary publicity and helps preserve relationships of the clients. Id.
175 See discussion supra Part IV.C.2.
176 Tesler, supra note 1, at 318.
177 1 HOFFMAN & TESLER, supra note 30, at § 41:8.
178 Schwab, supra note 11, at 363-4.
179 Donna Beck Weaver, The Collaborative Law process for Prenuptial Agreements, 4 PEPP. DISP. RESOL. L.J. 337, 340-346 (2004). This would be helpful because the prenuptial agreement would not be written until after the parties have discussed important issues and are both comfortable with the arrangement. It also helps ensure that both parties have their own representation. Id.
180 1 HOFFMAN & TESLER, supra note 30, at § 41:12. The movement is growing into Massachusetts as well. Id.
181 Lawrence, supra note 24, at 433. Collaborative law is a process that is spreading into the business and labor bars. Id.
182 Lande, supra note 82, at 1379.
183 Tesler, supra note 1, at 317. The Hon. Donna J. Hitchens stated, “So I favor any system that best serves families and children, and, from everything I’ve seen so far, the collaborative law approach is THE best, and the least litigious. The least litigious alternative is always going to be better for families.” Id. (emphasis in original). See also Tesler, supra note 36, at 14 (stating that in San Francisco and Los Angeles, family law judges have made it clear that collaborative law is the favored dispute resolution practice for parties involved in a divorce process, and that litigation ought to be regarded as a last resort).
184 Simon, supra note 149, at 155. This method has proven to be very effective. “If even one or two in the audience goes back to work and tells his or her staff all about Collaborative law, it’s not unusual for one of those staff members to show up a few days or weeks later in a Collaborative lawyer’s office.” Id.
185 Cox & Matlock, supra note 17, at 58. See also Firestone & Weinstein, supra note 49, at 204 (explaining that professionals, such as mental health professionals, find that litigation is unhelpful in mending family relationships).

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