Lawyers' Emerging Experiences of Interdisciplinary Collaborative Separation and Divorce¹

 1.The terms collaborative family law, collaborative practice, and collaborative divorce have also been used for this process. In the Australian setting, the author prefers the more inclusive term of collaborative separation and divorce, to indicate the full range of family law disputes that may benefit from the collaborative process. Therefore, the term ‘collaborative separation and divorce’ will be used preferentially in this article to describe the collaborative movement. The general terms collaborative process and collaborative practice will also be used where appropriate.

Abstract

Collaborative Separation and Divorce has recently emerged as a method of dispute resolution where parties to family law disputes agree to finalise all matters through negotiations only, without any threat of litigation and without going to court. In an interdisciplinary collaborative approach lawyers and psychologists/counsellors work together with clients. This study investigates lawyers' perceptions of collaborative divorce. It presents the results of interviews with 20 collaborative family lawyers in Vancouver, Canada, where collaborative family law has been practised since 1998. The results have implications for the reform of family law in Australia, where collaborative separation and divorce is emerging as an alternative to court processes. The findings suggest the collaborative process is part of a spectrum of dispute resolution mechanisms including litigation, lawyer-assisted negotiation, mediation, and arbitration. Lawyers perceived key elements of the process to include agreement amongst clients and lawyers not to go to court, signing of a participation agreement including a lawyer withdrawal clause, trust between clients, trust among lawyers, trust between lawyers and clients, and four-way meetings. Collaborative negotiation is distinguished by the heightened levels of trust between lawyers, clients, and lawyer+clients, as well as broader notions of advocacy based on notions of fairness, openness, and disclosure.

Notes

 1.The terms collaborative family law, collaborative practice, and collaborative divorce have also been used for this process. In the Australian setting, the author prefers the more inclusive term of collaborative separation and divorce, to indicate the full range of family law disputes that may benefit from the collaborative process. Therefore, the term ‘collaborative separation and divorce’ will be used preferentially in this article to describe the collaborative movement. The general terms collaborative process and collaborative practice will also be used where appropriate.

 2.See the web site of Collaborative Divorce Vancouver <http://www. collaborativedivorcebc.com>

 3.<www.collaborativepractice.com/>.

 4.See P.H. Tesler and P. Thompson Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life (HarperCollins, NY 2006); S.G. Webb & R.D. Ousky, “The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids – Without Going to Court” (Penguin Books, NY 2007).

 5.The term ‘divorce coach’ has been used in Canada and the US to refer to collaborative mental health professionals who work individually with each client in the dispute. In the Australian context, the author prefers the term collaborative family dispute counsellors/psychologists. In this article, the term collaborative family dispute counsellors/psychologists, collaborative counsellors, or collaborative psychologists will refer typically to psychologists and counsellors who work individually with each client in the family dispute.

 6.Another interdisciplinary collaborative model includes a variation in which clients always retain a lawyer, but mental health professionals are used only on an ‘as needed’ basis. In some collaborative models the lawyer is seen as the central professional in the collaborative case; in other models the collaborative professionals share the key role. A lawyer-only collaborative model has also been discussed. See N.J. Cameron, Collaborative Practice: Deepening the Dialogue (Continuing Legal Education Society of British Columbia, Vancouver 2004).

 7.Child Specialists and Financial Advisors act as ‘neutral’ third parties in the sense that they do not act for one or other of the clients, but give expert advice on the matter as a whole.

 8.It has been argued that this model provides consistency for clients in that clients know with certainty what the process involves. See N.J. Cameron (n 6) 12.

 9.Family Law Amendment (Shared Parental Responsibility) Act 2006.

10.S Rogers, Interview with ‘Sounds Like Canada’ CBC Radio (19 October 2004, reference number 40F62C-5).

11.Cameron (n 6).

12.See <www.collaborativedivorcebc.com>.

13.Statements by N.J. Cameron and P. Kenney (Personal communication, May 2005).

14.See the website <http://www. collaborativedivorcebc.com>.

15.This requirement for mediation and collaborative law training is also a requirement for membership of the Vancouver collaborative practice group for divorce coaches and child specialists. The requirement for collaborative practice training is a requirement for membership of the Vancouver collaborative practice group for financial specialists.

16.J Lande, ‘Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering’ (2003) 64 Ohio State Law Journal 1315.

17.See <www.collaborativepracticebc.com>.

18.Cameron (n 12).

19.See Cameron (n 6) for a review.