Collaborative Family Law

By Patrick Gaffney
Categories: Blog, Family Law

WHAT IS CFL?

Collaborative Family Law (CFL), is a client controlled, out-of-court process utilizing collaboratively trained professionals like lawyers, divorce coaches, financial planners, and child specialists to help spouses achieve mutually acceptable solutions to issues arising when they separate.

The goal of CFL is to approach problem-solving creatively using the participants to brain-storm solutions, evaluate options, and allow the spouses to decide the best steps forward.  Negotiations in CFL are interest based.  That is, the spouses’ interests are explored, and negotiations strive to meet those interests.  The process allows for creative thinking and promotes tailor-made solutions for families.

HOW DOES CFL WORK?

Each spouse hires their own collaborative lawyer who has specialized training in collaborative dispute resolution.  The lawyers and clients sign a participation agreement containing the guiding principles for a collaborative case.  Generally, the clients agree to produce all information and documents necessary to resolve their family law case, and to negotiate in good faith.  That is, neither spouse will take advantage of the other spouse or hold-back information.

There are a series of four-way meetings during which the facts and law are discussed.  If there is a dispute about the facts, then the participants decide what information is needed to resolve the dispute and how to obtain it.  If there is a dispute about the law, then the lawyers can each research the issue and present their findings to the group to discuss.

Often, other experts are also used to help spouses in making decisions.  For example, divorce coaches are licensed, registered professionals who help spouses adjust to the new situation and deal with emotional or psychological challenges arising from the separation.  They help spouses develop better communication and problem-solving skills which are very helpful when addressing future issues.

Collaborative financial specialists like accountants, financial advisors, and business valuators help spouses navigate through financial issues that arise on separation.  They can help spouses plan for their financial future including addressing tax issues, determining values of assets, creating budgets or retirement plans, etc.

Child specialists with training in child development and psychology help parents understand the separation from the child’s perspective.  They help to determine the emotional and psychological needs of children experiencing family break-up, and how to best meet those needs.  Developing parenting plans, assisting parents with communication or parental conflict issues are just a few of the services provided by child specialists.

If an expert is required then they are jointly retained.  The expert reports to both spouses.

Usually, the outstanding issues of fact and law are resolved or considerably narrowed allowing the spouses to make an informed decision without risking trial and giving the decision to a stranger – the judge.

If a lawyer knows his or her client is not acting in good faith, then the lawyer must withdraw from the collaborative process.  When one collaborative lawyer withdraws it signals to the other collaborative lawyer that the guiding principles are not being followed and that lawyer must also withdraw.  The clients must then each retain new counsel and incur the extra expense of starting over.  The collaborative lawyers do not assist the new, non-collaborative lawyers who start afresh.  Starting afresh is expensive.  The incentive is to keep tackling the problem until it is resolved.

WHY USE CFL?

Consider what judges do:  They listen to each spouse tell their side of a story and then the judge chooses who to believe – the judge decides the facts.  Then the lawyers try to persuade the judge on how the law should be applied.  The judge then makes a decision that affects your whole life when actually knowing very little about your whole life.  Or your children’s lives.  Why allow a stranger to make such important, long lasting decisions?  Why not use two family law lawyers to help determine the facts and law necessary to assist you in making decisions about your family who you know best?  CFL allows spouses to make decisions knowing there is no hidden information or agenda, and with the help of two experienced family law lawyers.

WHEN TO USE CFL?

The CFL process is most suitable for reasonable people.  However, with the help of other experts like divorce coaches, etc. the process can be adapted to accommodate individuals with mental health issues, etc.

However, the process is not suitable for rogues.  Rogues cannot be trusted.  The CFL process hinges upon mutual trust to produce all relevant information and documents and to negotiate in good faith.

ADVANTAGES AND DISADVANTAGES OF CFL

An advantage of CFL occurs when there is a dispute about the facts or the law it can be addressed by the participants, rather than obtaining a trial judge’s decision.

The process is private and arranged to suit the spouses’ schedules and needs.  Court, on the other hand, is public and litigants are subject to the court’s schedule.

Further, the CFL process helps people learn how to settle future disputes using interest-based negotiations.

It is almost always cheaper to resolve family law disputes by CFL than litigation.

Also, the spouses maintain control of the process unlike the court process which is dictated by law.

A disadvantage can arise when despite time being invested in the process it starts to deteriorate and the duty of good faith negotiation is compromised.  But no one wants to stop the process because they think too much has been invested only to abandon it and start legal proceedings with new lawyers.  Consequently, the process continues, but it is no longer collaborative, and the duty of good faith may start to wane.

Another issue arises when all issues have been resolved but one which, for whatever reasons, remains unresolvable and requires a third-party decision maker.  In such situations, the collaborative lawyers can document the resolved issues and the one outstanding issue can then be litigated or arbitrated with new counsel.

Not all family law cases are meant for CFL so it’s best to consult a CFL lawyer to see whether your case is suitable.  At Pushor Mitchell we have three CFL-trained family law lawyers:  Taryn Moore, Leneigh Bosdet, and me, Patrick Gaffney.