THE METHODS   >  COLLABORATIVE FAMILY LAW  >  RECENT ARTICLES

Meet the Common Ground Collaborative Family Law Attorneys. FAQ Recent Articles Collaborative Family Law Agreement

Collaborative Family Law: Articles: Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It

PAULINE H. TESLER
San Francisco, California

Any seasoned family law attorney knows some uncomfortable facts about this area of specialty. Of course, the entire picture is not bleak. To begin with, the disclaimers: Most family law attorneys work hard to do a good job for their clients, and as a result, they settle a high percentage of cases. When cases must be tried, family lawyers often achieve good results for clients and sometimes make new law. Each of us gets our share of reasonable, civilized clients and opposing attorneys, the people who make the practice of family law satisfying.
Despite those comforting facts, the evidence suggests disturbing trends that family law attorneys ought to address. Put baldly, current research tells us that our clients are unhappy with us--and we are unhappy with them and with ourselves.
Collaborative law is a thoughtful, forward-looking response to the current state of affairs in the area of family law. Before looking at exactly what it is, we must understand the context that makes awareness of collaborative law potentially so important to family lawyers.

UNHAPPY PARTICIPANTS
Unhappy Clients

Our clients and potential clients, generally speaking, do not trust us very much, and for good reasons. This is evident from considering the growing percentage of divorcing couples who are able to afford lawyers, but who "just say no." Although the number of divorces annually rose by 67 percent between 1970 and 1990,¹ more and more potential clients are deciding to eschew professional legal representation altogether.² In California,³ family law judges deplore the clogging of their court dockets with unrepresented in propria persona litigants who file papers that are substantively and procedurally flawed and who flounder helplessly attempting to secure custody, support, and restraining orders on their own.⁴
This refusal to secure needed legal advice cannot be dismissed as a reflection of poverty or lack of complexity .Many of these unrepresented litigants need legal advice and can afford it.⁵ They stay away from lawyers because they believe that they and their loved ones are better off without our help. One need only read the daily newspapers, listen to the jokes being told at the watercooler, or scan the Internet humor web sites to appreciate the depth of fear and scorn felt toward lawyers.⁶
Instead of simply wringing our hands about how misunderstood and disliked we are, we can play what Professor Deborah Tannen calls "the believing game"⁷ about this situation. What if our clients feel this way about lawyers for good reasons? What might those reasons be, and what might we do about the problem?

We lawyers generally are poorly suited, by both temperament and training, to deal effectively with strong emotions.

The Gladiator Model

The first thing that might cause clients to fear, distrust, and avoid family lawyers is that we are a great deal more adversarial in our thinking and behavior than our clients need or want.⁸ We overlitigate, exacerbating intrafamilial stress when we could be calming it. And, as a result, we charge our clients a high emotional and financial price that few can afford. We do this not because we wish to harm our clients or their families, but because we believe that is what lawyers are supposed to do.
We have absorbed from movies, television, novels, the newspapers, and our law school education a gladiatorial model for our professional role that is so deeply imbedded in our definition of what it means to be a lawyer that most of us do not even see it. It is invisible, the water in which we swim and the air we breathe; and, consequently, we reconsider our automatic adversarial behavior just about as often as we remind ourselves to breathe.
The research also shows remarkably clearly that as a profession, we lawyers generally are poorly suited, by both temperament and training, to deal effectively with strong emotions.⁹ Strong emotion, of course, is the currency that our family law clients are richest in: They are in the midst of one of the most stressful life passages that people can endure, second only to the death of a spouse, and, consequently, they often are awash in fear, anger, guilt, grief, shame, and remorse, sometimes even to the point of diminished capacity to cope with the ordinary demands of life.¹⁰ In that state, they enter the unfamiliar world of law, and, in that state, they must make decisions that will affect them and their children for the rest of their lives. Although divorce is a major life passage, as big a piece of a person's life history as marriage, our clients commonly have only us, the family law attorneys, to help them through it.¹¹

Poor Preparation for the Complexities of Divorce

How well prepared are we for this momentous task? Not well at all. We studied contracts and civil procedure in law school, and perhaps even domestic relations law. If our law school was forward-looking and we are not too old, we may have been exposed to courses in negotiations and mediation--or even a clinical semester.
Most of us have studied little or nothing about , the psychodynamics of the divorce process and of family breakdown and restructuring. We are largely ignorant of the predictable stages of grief and recovery, and, consequently, cannot incorporate proper attention to that reality into our pacing of the legal divorce process. What we know about child development, we most often learned by preparing adversarial experts for contested custody trials, a perspective that oversimplifies reality , weeds out inconvenient facts and theories, and leaves us unaware of, perhaps even indifferent to, the catastrophic impact of the divorce process itself--especially high-conflict divorce--upon children. We delude ourselves that such concerns are outside the lawyer's purview, ignoring the unpleasant fact that what we do during the course of our representation may cause far more injury to the children than what led up to their parents' decision to divorce.¹²
Our ignorance of the psychological dimensions of divorce leads us to inflict other avoidable harms. Because most of us don't know nearly enough about the psychological phenomena of splitting, transference, and counter-transference, we may jump unthinkingly onto white horses in full battle array when that might be the very worst thing we can do for our clients. Later, we wonder why, since we won such a powerful legal victory in court, our client is nonetheless furious.¹⁴

The Duty of Zealous Representation

Another reason why our clients may be right to distrust lawyers is that over the course of this century , we lawyers have learned to construe our duty of zealous representation in the narrowest possible fashion. Wanting to do the best possible job, and being most comfortable with outcomes that are measurable and least comfortable with the fuzzy, the emotional, the illogical, the relational,¹⁵ lawyers can easily find themselves focusing considerable legal efforts on achieving very small increments of financial gain. In doing so, it is rare for a lawyer to think much about the corollary damage caused by that n~row focus.
The very process of what lawyers refer to as "spotting the issues," which is what we do in the preliminary stages of representation, involves excluding as legally irrelevant those parts of the client's actual concerns that do not fit in the "lawyer's comfort zone":¹⁶ the realm of the logical, the measurable, and the quantifiable. m so doing, we ignore, and often do irreparable harm to, the nonquantifiable human concerns that may well have far greater impact on the quality of our clients' lives long after the legal divorce is over than any marginal financial gain we might achieve at trial. These concerns-which we would learn are of immense importance to our clients, if we would ask and then listen-often include questions like these:

• Will my spouse and I be able to parent our children adequately after the divorce? Can we shield them from the harms that seem to afflict children of divorce? Will fighting about every last cent of support and every last dollar of assets permit any of the remaining good faith between us to survive? Can I protect my interests without becoming my spouse's enemy?
• Will it be possible for my spouse and me to meet at graduations, weddings, births, and funerals with any civility or sense of mutual pride? Is there anything I can do to enhance that possibility?
• Will the grandparents, aunts, uncles, and cousins who have close connections to my children be able to sustain these relationships after a divorce? Can I remain close to the in-laws and extended family whom I love, even though I am losing my spouse?
• Will our friends be able to avoid choosing between my spouse and me? Will I have any friends left after a contested divorce?
• Can the legal process allow room for my personal values of ethical dispute resolution, privacy, and self-determination?
• Will I be able to look back upon how I conducted myself during this divorce process with pride and a sense of integrity?

Insufficient Counseling about Dispute-Resolution Options

Any experienced family law attorney knows that for most clients who take their divorce issues to court for resolution, the answers to the foregoing questions are overwhelmingly negative. Yet, in most parts of the country, it is rare indeed for family lawyers to begin their representation by inviting clients to consider what kind of a divorce experience they want and how they might best go about achieving it, or to give clients a realistic picture of how adversarial dispute resolution typically affects families.¹⁷ While many individual attorneys may be exceptions to this rule, we, as a whole, overwhelmingly fail to take any ethical or moral leadership in counseling our clients that there is a way to divorce with dignity and integrity if they want that outcome sufficiently and that we are available to show them how. We are the only ones who can tell them the truth about what really happens when divorcing couples take their issues to court.¹⁸
Yet, unless we have something better to offer clients, it would make little sense to speak so candidly about the adversarial paradigm. And since there has been little else to offer,¹⁹ family lawyers have, for the most part, trudged forward to court with their clients, feeling little confidence that anything fundamentally satisfying will come of it but unwilling to say so. In this, we resemble physicians who must treat patients with dreadful, incurable diseases. With no cure to offer, the choice is to officiate at the patient's death with false hope or with honest, detached gloom.²⁰
Whether we win or whether we lose, the sad reality is that at the end of many litigated divorces, our clients will be unhappy.²¹ As an experienced civil and family litigator with a successful track record in trial and appellate courts, this author has come to understand that however big a "win" I may obtain (from the lawyer's perspective), it is invariably less than or oilier than what my client secretly expected, and it comes at a tremendous financial and emotional cost. As one respected family law judge in my county used to tell litigants at the start of trials, "If anyone leaves this courtroom happy, I've made a dreadful error."

Unhappy Lawyers

The commentators generally agree that the well of client dissatisfaction and the stresses and incivilities of litigation are getting worse, not better. The consequences hurt not only clients; they can be nearly catastrophic for the mental and physical health of lawyers.
Many of us went to law school for idealistic reasons, thinking we were joining a helping profession. We saw ourselves as gladiatorial heroes, who would fight on the side of the angels (our clients), using our intellects and our passion to win their just causes. In law school, we were taught to win via the dominant paradigm for dispute resolution, the zeitgeist that Deborah Tannen refers to as "the argument culture." In that model, the lawyer is the dispassionate warrior, advancing the client's self-identified goals with total zeal, passion, and guile.²² In that model, we learned to follow agreed rules of combat (the code of civil procedure) in our march toward the courthouse, where the judge would ascertain the truth, find out who was at fault, and dispense impartial justice (trial and judgment). In this dominant paradigm, the role of the lawyer is to remain morally disengaged, to become the extension of the client's legal and moral personality.²³ The lawyer, in this gladiatorial role definition, is expected to take no moral responsibility for the purposes to which the lawyer's services are put. We park our moral consciousness in the courthouse parking lot and pick up the lawyer's substitute for a conscience, the "duty of zealous representation."

Our clients frequently come to us gripped by a "shadow state" of powerful negative emotions, and we insist that they set major life goals while in that state.

This role-defined morality is superficially seductive; it allows us as family lawyers to float above the inherent messiness of human relationships as they unravel. In its seductiveness, it can link up with our buried idealism and with the zero-sum game that is adversarial engagement, causing us to cast our clients' stories in black and white, and to ignore the relativity and situational complexity of human relationships. If our job is to march forward zealously to achieve our client's goals, whatever they may be, we are a good deal more comfortable as gladiators if we can convince ourselves that we are acting on behalf of angels.²⁴ An all-out custody battle is easier to mount if the lawyer believes what he or she will have to prove, that his or her client is a superb parent and the other is a danger. Our role definition, in other words, encourages us to oversimplify reality.
For these same reasons, we are far more comfortable with goals that have clear bottom lines that are readily quantifiable because they lend themselves readily to adversarial simplification. It's easy to tell who won, and by how much, when the issues are confined to money and hours. We define the legally cognizable issues this way, and we know which gladiator won (and did a better job for the client) by the size of the bottom line. Since we played by the rules, we are comfortable with the outcome, because justice was done: It emerged from the judge's application of fair, general rules to the messy facts of our clients' lives, which we so capably simplified at trial.
Another factor operating in this dominant paradigm is that our clients' goals, which are the holy grail of the gladiator's duty of zealous representation, tend to be identified in a process marred by diminished capacity on the part of the clients, and shaped by transference and countertransference of which neither the lawyer nor the client is generally much aware.²⁵
Family law clients do not call their lawyers to report that everything is fine, that they are getting along well with their spouses, and that their ability to work out issues on their own is improving. Those moments do occur during the course of many divorces, but clients typically call their divorce lawyers only when things are worst, when they or their spouses are locked in the grip of primitive emotion and they are paralyzed by grief, fear, anxiety , remorse, shame, guilt, or anger. In that state, it is the rare client who has sufficiently clear insight into his own needs or the needs of the others most important to him; it is the rare client who can take the long view and consider with the lawyer what outcomes will serve her interests best 15 or 20 years from now. Instead, most clients sit down with the lawyer in this flood of overwhelming negative emotion to identify goals and priorities and to plan strategies. Inevitably, things get better, but the client does not typically call the lawyer back to report the improvement and reconsider the litigation plan.²⁶ The other client and lawyer are planning goals and strategies in a similar state.
It should be apparent from a moment's reflection that there is no room in this model for consideration of a client's long-term, enlightened self-interest, whether financial or emotional. Very few family law attorneys expect their clients to ponder the larger questions in setting goals and strategy , questions such as, "Should I be seeking this? How will it further my overall health and welfare and the best interests of those I care about, if I achieve this goal?"
In short, our clients frequently come to us gripped by a "shadow state" of powerful negative emotions, and we insist that they set major life goals while in that state. Once those goals have been defined, we set out to reach them for the client. To do so, we take control to maximize the possibility of a win. We see other professionals (therapists, mediators) as meddlers who are compromising our ability to win big for our client by blurring the neat black and white lines we are drawing. We discourage direct negotiations between the clients, for this too will undercut our trial strategies. We take our instructions from our clients in their least functional state and are surprised that later they don't appreciate our efforts. Sooner or later, all but those at the far ends of the bell-shaped curve will recover from the immediate divorce trauma and resume a more normal, balanced state of functioning most of the time. Many of them, however, will look back on the divorce process with pain for the rest of their lives.²⁷
For all these reasons, not only do many of our clients fear and dislike us, but we fear our clients. We know that they may well end the legal divorce process angry and frustrated and looking for someone to blame. Experienced family lawyers can attest that many clients retain us but don't pay us. Fee disputes are common in family law, not only because money tends to be scarce when two households form out of one, but also because family law clients tend to be unhappy with the results, however good the job their lawyers may have done. When our clients have accrued large bills-an error lawyers try to, but cannot always, avoid-fee disputes and the reverse side of that coin, malpractice suits, are common.²⁸ Lawyers who have made the mistake of acting as their clients' alter egos, stoking their anger or fear and raising unreasonable expectations from the adversarial process, are particular targets of this anger.
And, in this author's state of California, a fee dispute or malpractice action is far from the worst the family lawyer needs to guard against. Clients have used their guns to shoot the lawyers who epitomize for them all that is wrong with how our legal system handles the breakdown and restructuring of families.²⁹
It is small wonder that many family lawyers regret their choice of profession, are leaving the field of law in unprecedented numbers, and report that they would not advise their children to choose the law as a career.³⁰ Even more troubling are the high drug and alcohol abuse rates for attorneys and their disturbingly high rates of clinical depression.³¹ These reports confirm what many of us know from first-hand experience: Family lawyers, as a group, have difficulty taking pride and satisfaction in their work, however well they are doing it. When we look in the mirror, we are not happy with what we see.

A NEW PARADIGM WITH NEW POSSIBILITIES

Out of this ferment (client and attorney malaise, dissatisfaction with the obvious shortcomings of adversarial litigation as a way of helping families resolve the inevitable disputes attendant upon family restructuring in divorce, and recognition of the limitations of existing alternate dispute resolution models), the new paradigm of collaborative law emerged in the early 1990s. It was the inspiration of a single disgusted family lawyer practicing in Minneapolis.³²
Very rapidly, lawyers learned about this new way of practicing family law and began spreading the model to other parts of the country.³³ Presentations about collaborative law have been offered in recent years at a number of conferences sponsored by organizations including the American Bar Association, the Association of Family and Conciliation Courts, the American Academy of Matrimonial Lawyers, the American Psychological Association, the University of California, the Judith Wallerstein Center for the Family in Transition, and the American Institute of Collaborative Professionals.

If the process fails to reach agreement and either party then wishes to have matters resolved in court, both collaborative attorneys are disqualified from further representation.

What Collaborative Law Is: The Bare Bones

Collaborative law consists of two clients and two attorneys, working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues.³⁴ Each party selects independent collaborative counsel. Each lawyer's retainer agreement specifies that the lawyer is retained solely to assist the client in reaching a fair agreement and that under no circumstances will the lawyer represent the client if the matter goes to court. If the process fails to reach agreement and either party then wishes to have matters resolved in court, both collaborative attorneys are disqualified from further representation. They assist in the orderly transfer of the case to adversarial counsel. Experts are brought into the collaborative process as needed, but only as neutrals, jointly retained by both parties. They, too, are disqualified from continuing work and cannot assist either party if the matter goes to court. The process involves binding commitments to disclose voluntarily all relevant information, to proceed respectfully and in good faith, and to refrain from any threat of litigation during the collaborative process.
The process moves forward via carefully managed four-way settlement meetings, preceded by considerable groundwork between lawyer and client, and between lawyer and lawyer. The lawyer's job is challenging: In addition to the usual identification, investigation, and development of issues and proposals for settlement, the lawyer must work with the client and the other lawyer to anticipate and manage conflict and to guide the negotiation process. The lawyer also must encourage the client to take a considered and broad view in setting goals and priorities and must teach the client how to use interest-based, rather than positional, bargaining.³⁵
Before any negotiating session, the collaborative lawyers generally meet and confer, sharing information that will assist them both in managing conflict and in setting the agendas for four-way meetings. The skill here is to manage agendas in such a way that the clients experience success during the early meetings, thereby building in the clients a sense of confidence, safety, and competency that will serve them as more difficult issues are tackled.

The transformation that often occurs in the attorneys' capacity to find creative solutions to thorny issues in collaborative practice simply must be experienced to be believed.

An important element of collaborative representation is the lawyers' commitment to manage conflict creatively. To do so effectively, the lawyer needs a whole new array of understandings and skills. Without this new toolbox, the lawyer runs the risk of promising more than can be delivered and disappointing clients. Given the unconscious, knee-jerk adversarial proclivities of most lawyers, this is easier said than done. The "retooling" needed to become excellent at collaborative law can be described in four stages:³⁶

1. Retooling how one thinks, speaks, and behaves.
2. Retooling how one relates to the client.
3. Retooling how one relates to the other attorney, the other party, and other professionals.
4. Retooling how one conducts settlement meetings.

The questions most often asked about collaborative law are (1) I already settle cases, and I'm a reasonable lawyer; so isn't it true that I'm already doing what you do, only by a different name? and (2) Isn't this really just like mediation? The answer to both questions is no.
The best family lawyers have always offered settlement-oriented representation where appropriate, wherein discovery is voluntary, and agreements are more common than trials. Collaborative law differs in several important respects from that pragmatic orientation toward settling cases. The differences arise from the profound effects that the formal written commitments made at the start of the process have upon the state of mind of the parties and their attorneys.
First, both parties entering a collaborative law dissolution process commit to selecting counsel on both sides who willingly bind themselves to prearranged ground rules. Ideally, the clients choose attorneys who have a history of working cooperatively and effectively as opposing or collaborative counsel.³⁷
Second, everyone signs a stipulation about how the process will be conducted, which remains in effect so long as all participants conduct themselves in good faith.
Third, a core element of the stipulation is that the process continues only so long as no one threatens litigation as a means of conducting negotiations, nor takes any steps to bring the matter into the court's litigation process.
Fourth, if the process breaks down, either because of bad faith or because one party or the other feels obliged to turn to the courts for relief, the attorneys must withdraw, and thereafter cannot represent either party against the other. Although departing collaborative law counsel will assist in an orderly transition to litigation counsel, the financial and emotional costs of starting over with new representation will usually be significant.
These stipulated commitments become powerful "carrots" and "sticks" encouraging immediate engagement in good-faith problem solving on all sides and discouraging the parties from lightly electing to litigate. Suspicion and paranoia decline dramatically; this is because most of the process takes place in the presence of both parties, and because the explicit commitment on both sides is that collaborative law counsel will withdraw if they have any reason to doubt the good faith of their own clients.
The transformation that often occurs in the attorneys' capacity to find creative solutions to thorny issues in collaborative practice simply must be experienced to be believed, and the essential key to entering this "creative hyperspace" is the disqualification stipulation. Without it, you may have something cordial and reasonably effective in settling cases, but you do not have collaborative law. When the attorneys' range of options no longer includes going to court, the thought process changes from "Well, we can always see what Judge Smith will do with this problem," to "If I don't come up with a way to solve this problem that the other three participants find acceptable, I've failed and I will have to withdraw." In collaborative law, if I cannot find a good solution for the other party's legitimate needs that is also acceptable to my client, the process ends just as surely as if my own client's problems are not being attended to sufficiently.
For those reasons, in a collaborative representation involving difficult issues, there is often a distinct transforming moment when everyone around the table recognizes that either the four of them must devise a solution or the process ends and someone else will do the deciding.³⁸ At that point, instead of the oppositional negotiations that characterize litigation-dominated settlement conferences, it often happens that both parties and both lawyers enter a creative problem-solving mode in which all build on the ideas emerging around the table. In that situation, surprising solutions can emerge that would have been unimaginable in a conventional negotiation. The process encourages imaginative lateral thinking at a high level among all four participants from the start. None of these effects is impossible to achieve in a traditional settlement negotiation, but nothing about the traditional lawyer-client relationship fosters these effects as collaborative law does.
Mediation, too, can be an effective dispute-resolution mode,³⁹ but it, also, lacks the powerful problem-solving potential that is at the structural core of collaborative law. First, in mediation, a single neutral mediator manages the negotiations and conflicts. Whether or not the clients have independent counsel assisting them, it is not the job of either the mediator or the attorneys to work privately with a very unreasonable or upset client so that productive negotiations can resume. Such problems can sink a mediation permanently. Second, the mediator is not able, as collaborative lawyers are, to deal well with one-sided delay, resistance, withholding of information, and similar problems that can impair the integrity and efficiency of the process. In collaborative law, the lawyers place their own integrity on the line, committing to not continuing to represent a client who refuses to abide by the good-faith commitments contained in the stipulation. Third, the single talent that lawyers most often bring to a dispute is creative problem solving skill. With two lawyers working together to find mutually acceptable solutions, both clients benefit from the double professional talent engaged toward the same goal.

More marital reconciliations have occurred during this author's 6 years of collaborative practice than in her preceding 13 years in family law.

In short, collaborative law melds vigorous attorney advocacy and advice with a very sophisticated dispute resolution process that, at its best, engages the highest intentions and creativity of the participants. Many lawyers who practice collaborative law report a degree of enthusiasm and gratification from their work that had long been missing. Their clients genuinely appreciate the lawyers' work and are quick to recognize that the risk of failure is being distributed to the attorneys as well as the parties.⁴⁰ Surprisingly often, the experience of solving problems without the emotional toll exacted in prior efforts to negotiate with the spouse leads clients to acts of spontaneous generosity at the bargaining table. More marital reconciliations have occurred during this author's 6 years of collaborative practice than in her preceding 13 years in family law. ⁴¹
Collaborative law is not a panacaea; nothing is. It isn't for every client, and it isn't for every lawyer.⁴² There will always be clients who need to take their cases to trial, and there will always be lawyers ready and willing to assist them. For those lawyers who worry about the damage done to clients, their families, their lawyers, and our communities from unthinking, avoidable adversarial conflict in divorce, collaborative law is a model worth learning about.

 

ENDNOTES

¹U.S. Commission on Child and Family Welfare, Parenting Our Children: In the Best Interest of the Nation 12 (1996).

²Some of them may be seeking out mediators; some may be using freelance paralegals who skirt the area of unlicensed practice of law. Some may be securing "unbundled" legal advice without retaining counsel of record. Many are buying "do It yourself" divorce annuals and going it alone. For people with short marriages, and those without children and without significant income or assets, the issues may be simple enough that a lawyer is an unnecessary luxury. But for many, negotiating without legal advice spawns unfair agreements, inadequate support, and future postjudgment conflicts that many give rise to otherwise avoidable litigation.

³California is so populous, has such a high divorce rate, and has been the source of sufficient trends in family law, that lawyers from other regions might be wise to look at reports from this state as "the canary in the coal mine."

⁴Contested family law cases involving pro per litigants create substantial problems for judges and court personnel as well as the litigant themselves. See Roderic Duncan, Pro Per Do-It-Yourself Divorce, Cal. Law., Jan. 1998, at 44.

⁵Some commentators have estimated that as many as 70 percent of California divorces proceed to judgment without attorneys of record. Of these, it is further estimated that half--35 percent or so of all divorcing couples--can readily afford lawyers but refuse to retain them.

⁶Popular humor websites generally have a special category for jokes about lawyers. See, e.g., scroom.com/SCROOMtimes/Humor/Lawyer.shtml; netfit.com; and humor.com. No other profession is singled out for this attention. Even legal research websites put forth the same scornful lawyer jokes. See, e.g., nolo.com/humor/jokes and counselquest.com/jokes.htm. The Jokes have numbingly repetitive themes: Lawyers are greedy, unethical, crooked; they will do anything to keep litigation going and build up higher fees; they cheat their clients and anyone else they deal with. They are routinely compared to rodents, snakes, and other vermin and found to be less admirable. Many of the jokes involve killing lawyers, with the punch lines suggesting that nobody could possibly grieve for them and that a service to solely has been done thereby. This Is chilling material when read alongside the disturbingly frequent news reports of lawyers being shot and killed by client, and adverse parties. In California, the two courtrooms that routinely have metal detectors at the entrance are the criminal and the domestic relations departmental.

⁷Deborah Tannen, The Argument Culture 273 (1998).

⁸See, e.g., Susan Dalcoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on ~Professionalism, 46 Am. U.L. Rev. 1337 (1997); Stephen Reich, California Psychological Inventory: Profile of a Sample of First-Year Law Students,36 Psychol. Rep. 871-74 (1976); Carl Hosticka, We Don't Care About What Happened, We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality, 26 Sac. Probs. 599 (1979); Paul J. Spiegleman, Integrating Doctrine, Theory and Practice in the Law School Curriculum: The Logic of Jake's Ladder in the Context of Amy's Web, 38 J.L. Educ. 243-70 (1988); Deborah Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L Rev. 589 (1985); Susan P. Sturm, Gender and the Higher Education Classroom, in Maximizing the Learning Environment: From Gladiators to Problem-Solvers: Connecting Conversations About Women, the Academy, and the Legal Profession, 4 Duke J. Gen. L. & Pol'y 119 (1997); Jack Himmelstein. Reassessing Law Schooling: An Inquiry into the Application of Humanistic Educational Psychology to the Teaching of Law, 53 N.Y.U. L. Rev. 514.533-39 (1978); Lani Guinier et al., "Hey! There's Ladies Here!" 73 N.Y.U. L. Rev. 1022, 1035 (1998); Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of the Children and the Adversary System, 52 U. Miami L. Rev. 79 (1997).

⁹Daicoff, supra note 8; Reich, supra note 8. See also Susan Daicoff, Asking Leopards to Change Their Spots: Should Lawyers Change? A Critique of Solutions to Problems with Professionalism by Reference to Empirically Derived Attorney Personality Attributes, II Georgetown I. J. Leg. Ethics 547 (1998).

¹⁰In the words of one custody expert. "1 have seen normal people become neurotic, and neurotic people become psychotic, as a direct result of embroilment in adversarial proceedings associated with their divorces. Richard A. Gardner , M.D., My Involvement in Child Custody Litigation, 27 Fam. & Conciliation Cts. Rev. 1, 3-9 (1989). Another noted specialist in high-conflict divorces notes:

[E]ntrenched disputes often represent a response to overpowering feelings of shams and vulnerability which are evoked by the marital separation as well as by the perception that professionals are increasingly in charge of what was once the family's private life. Vulnerable parents frequently manage these feelings of shame and helplessness by projecting all Incompetence and badness onto the former spouse and holding all competence and goodness for themselves. From this dynamic evolves a wish that the judge, Solomon-like, will erase the shame by publicly answering, once and for all, the question of which parent is good and competent and which parent Is bad and Incompetent.

Vivienne Roseby, Ph.D., Uses of Psychological Testing in a Child. Focused Approach to Child Custody Evaluations, 29 Fam. L.Q. 97, 98 (1999),

¹¹It is beyond the scope of this article to pursue the implications of this fact, but they are significant, Our culture has prescribed ceremonies and rituals to assist people in handling the sometimes overwhelming emotions that accompany major life transitions. For births, weddings, and deaths, there are religious and social ceremonies and customs that provide support and aid participants In understanding the larger meaning of the event and one's own place in it. In Joseph Campbell terms, these ceremonies help people fit themselves and these events into their own personal myths. No such traditions have evolved to support people through divorce, though most people will experience divorce either directly or in their immediate families during their lifetimes, most people go through divorce without the help of mental health professionals. See Austin Sarat & William Felstiner, Law and Society in the Divorce Lawyer's Office, 20 Law &: Soc'y Rev. 93 (1986). The divorce lawyer is the de facto priest assigned the full cultural weight of bringing clients through this intensely destabilizing experience, and the trial is the only ceremony offered, Divorce for us is a set of legal issues; for our clients, it is a multidimensional experience that begins long before and ends long alter the legal divorce, Including emotional, spiritual, physical, financial, familial, relational, and ethical dimensions. Generally, there is no other professional assisting clients through this complex experience, and generally, we lawyers deal with this complex transition by defining most of it as irrelevant,

¹²One commentator observes:

[L]itigation itself is often demeaning, as litigants attempt to exaggerate each other's flaws and reopen old wounds in order to win points for themselves. Further, the process is disempowering as it forces the parties to place their fates in the hands of their attorneys and the court. In the process, the family's resources are expended and depleted with no beneficial outcome for the child or the parents.

Weinstein, supra note 8, at 133, Despite the fact that children need extra attention from their parents during the upheavals of divorce, they get less because litigation drains the personal and emotional, as well as financial resources of their parents. Judith S. Wallerstein & Joan Berlin Kelly. Surviving the Breakup: How Children and Parents Cope with Divorce 30 (1980). Andrew Schepard puts it this way:

Despite a child's overriding need for conflict management, the prevalent adversarial model of courtroom confrontation rewards parental conflict . . . . Precisely when children need parents to lessen the degree of hostility and behave cooperatively, the specter of courtroom combat--and especially the conflict over the vague legal standard of the "best interests of the child--encourages conflict. The adversarial process encourages parents to denigrate one another, rather than to cooperate on the essential task of postdivorce child rearing. . . .[T]he custody dispute also drains resources from limited marital assets at a time when those assets could better be used to preserve the family's standard of living.

Andrew Schepard, War and P.£.A.C.£.: A Preliminary Report and a Model Statute on an Interdisciplinary Educational Program for Divorcing and Separating Parents", 27 U. Mich. J.L. Reform 131, 145-47 (1993).

¹³See Roseby, supra note 10.

¹⁴Cf. Marygold S. Melli et al., The Process of Negotiations: An Exploratory Investigation in the Contest of No-Fault Divorce, 40 Rutgers Law Rev. 1133, 1143-44, 1160 (1988).

¹⁵See supra notes 8 and 9. Also illustrative are the conclusions of clinical law professor Alan Lemer, Law and Lawyering in the Workplace: Building Better Lawyers by Teaching Students to Exercise Critical Judgment as Creative Problem-Solvers, 32 Akron L. Rev. 107, 114-117 (1999).

¹⁶See Hosticka, supra note 8.

¹⁷A fair analogy in the medical field would be the failure to advise critically ill patients about the range of treatment options and the risks commonly associated with each--a failure most lawyers would consider to be at least arguably malpractice. Surely our own standard of care requires no less. See, e.g., Robert P. Cochran, Jr., Must Lawyers Tell Clients About ADR? Arbitration J., June 1993, at 8.

¹⁸For a vivid judicial snapshot of what is wrong with court-based family dispute resolution, see the comments of family law judge Anne Kass, in Clinical Advice from the Bench, 7 J. Child & Adolescent Psychiatric Clinics N. Am. 247, 2S1-S3 (1998):

(T)oo few judges and lawyers have examined their personal beliefs, attitudes, and expectations about family matters in any depth, and that leaves them vulnerable to becoming emotionally entangled in divorce and custody cases, sometimes quite unconsciously. . . . What does reach their conscious awareness is that they are extremely uncomfortable, but they haven't the skills to reflect on their discomfort through introspection. In short, family law has the propensity to diminish objectivity and blur boundaries for judges and lawyers and thus cause emotional overload.

Worse yet, the art of "building and maintaining appropriate boundaries is missing from legal education. so we find lawyers and Judges who assume the inappropriate roles of rescuer and avenger.." Communication about hard facts is often "tied to fault and blame," and lawyers and judges communicate in "linear and triangular patterns with little understanding that doing so causes misinterpretations, suspicion, and confusion." Id.
Janet Johnston and Vivlenne Roseby deplore the faulty reasoning involved in asking courts and judges to

take on and resolve family dilemmas that other professionals and the community at large have failed to resolve--cases that attorneys have failed to negotiate and mediators have failed to settle, for families that counselors and therapists have failed to help. Inexplicably, there is an assumption that judges have some special capacity to resolve the most difficult, the most complex of all family problems. Is it any wonder that family court assignments for judges are so unpopular, so often avoided, and usually staffed by rotating assignments to prevent burnout?

Janet Johnston & Vivienne Roseby, In the Name of the Child 223 (1998).
Retired California Court of Appeals Justice Donald M. King made the point more succintly: "Family court is where they shoot the survivors." King, address at New Ways of Helping Children and Families Through Divorce, a conference sponsored by Judith Wallersteln Center for the Family in Transition and University of California, Santa Cruz; Quail Lodge, Carmel Valley, CA (Nov. 21, 1998).

¹⁹We do, of course, settle many cases, but we do so in a litigation-driven matrix in which much of the harm of adversarial wranglIng has already occurred before settlement discussions begin. In recent years, mediation has been an option, but for many (though certainly not all) couples, it may provide insufficient protection and controls to be a wise dispute resolution choice. For an example of a feminist critique of mediation which includes some cautions about who should not mediate. see Penelope Eo Bryan. Reclaiming Professionalism: The Lawyer's Role in Divorce Mediation, 28 Fam. L.Q. 177, 193-207 (1994).

²⁰There is, however, an important difference. If the phyiscian's treatments should cause additional harm to the patient, the patient with the fatal illness does not survive to chastise him. Family law clients who are injured by the dispute resolution process selected or imposed by the lawyer will live to mull about whois to blame for the pain they experienced.

²¹See generally Stephen Erickson, ADR and Family Law, 12 Hamline J. Pub. L. &; Policy 5 (1991); Bruce Winick, Integrating Preventive Law and Therapeutic Jurisprudence:A Law and Psychologica1 Approach to Lawyering, 34 Cal W.L. Rev. 15 (1997).

²²See supra notes 8, 9, and 15.

²³See Deborah Rhode, Ethical Perspectives on Legal Practice. 37 Stan. L. Rev. 589 (1985); Richard Wasserstrom, Lawyers as Professionals:Some Moral Issues, 5 Hum. Rts. 1 (1975); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63 (1980); Rand Jack & Dana Crowley Jack. Moral Vision and Professional Decisions: The Changing Values of Women and Men Lawyers (1989); Richard Zitrin & Carol M. Langford, The Moral Compass of the American Lawyer: Truth, Justice. Power, and Greed tl999).

²⁴What the better family lawyers understand, after some years in the practice of law, is that in reality there are very few angels hiring usto represent them and very few devils on the opposing side. As the saying in the San Francisco legal community goes, "Snow White rarely marries Hitler". The vast majority of our clients are simply good people golnc through a very bad time in their lives, and sooner or later most of us realize that casting their stones in black and white, win-lose terms does their families no service.

²⁵The family law client, from this perspective, looks to the lawyer and the court system to assuage unbearable narcissistlc wounds. Roseby, supra note 10.

²⁶First, it is costly to spend any tIme with a lawyer, and. therefore, paying money to report good news probably does not occur to clients. Second, meetings with the lawyer tend to be painful and fraught with anxiety and therefore are to be avoided if possible. Third, clients too absorb the domlnant gladiatorial model. Lawyers are hired, warriors who go to battle for you against a demonized spouse. Why call on them for assistance when a hired gun isn't needed?

²⁷If they are reflective and mature, they may look back with a mixture of shame, remorse, regret, and guilt at their own contribution to a "bad divorce." If they are, by nature, more primitive in emotional development, they may carry forward from the wreckage of their divorce a permanent, unchangeable plcture of themselves as victim and the ex-spouse as demon, a stance that thwarts their own personal growth and the emotional development of any children of the marriage.

²⁸According to one large malpractice carrier, Lawyers' Mutual Insurance Company, "[E)xperience has shown us that a cross-complaint for malpractice is not an unusual concomitant to a fee dispute between attorney and client." 10 Law. Mutual Ins. Co. Bull. (1995).

²⁹Gardner, supra note 10, observes that the stresses of litigation can produce rage so extreme it induces serious urges to murder, a risk recognized by the Califomia court system in installing metal detectors at the entrance to many family law departments. See Weinstein, supra note 8, at 133 n.178.

³⁰Joseph Bellacosa, A Nation Under Lost Lawyers, 100 Dick. L. Rev. 505 (1996); Mary Jordon, More Attorneys Making a Motion for the Pursuit of Happiness, Wash. Post, Sept. 4, 1993.

³¹Set Association 01 American Law Schools, Report of AALS Special Commiltee on Substance Abuse in Law Schools, 44 J. Legal Educ. 35,41-46 (1994); Connie J. A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological ConcernS Among a Sample of Practlcing Lawyers, 10 J. L. &c Health 1,45-58 (1995-96).

³²Stuart Webb describes his Inspiration simply. He was so fed up with family law and its inconsistency with hia personal ethics that he decided he would simply have to stop practicing law. Then it struck him that if he was willing to give up law altogether, there was no reason why he couldn't first try to reshape what was wrong about it and see if he could devise a mode of family law practice that made more sense to him. Pauline H. Tesler, Collaborative Law: Where Did It Come From, Where Is It Now, Where Is It Going? I The Collaborative Q. I (1999).

³³Groups of collaborative lawyers formed in California and Ohio in the early 1900s. By the mid-1990s, several experienced collaborative lawyers were offering training around the country. In northern Caliiomia, a parallel development among financial and mental health prolessionals called "collaborative divorce" emerged, opening for the first time the possibility of a welltrained interdisciplinary team oflawyers and other divorce professionals working in collaboration to help couples achieve a settlement entirely outside the court system, with all the benefits of sophisticated professional advocacy and support. Stuart Webb and the author are now offering training in conjunction with the originators of the collaborative divorce model, for interdisciplinary groups of lawyers, financial professionals, and mental health professionals. (See Collaborative Divorce: A New Interdisciplinary Model on page 226 of this issue; also see the collaborative divorce web site at Collaborativedivorce.com for information.)

³⁴The model first emerged in connection with divorce, but it can be applied in any situation where preservation of an ongoing relationship between the parties is an important objective. This article focuses on the model as it is applied in divorce and other family law matters, but it certainly should be considered an option in probate and commercial matters as well.

³⁵Positional bargaining is most easily described as horse trading, or "Mediterranean marketplace" bargaining, which proceeds via choreographed presentation of a sequence of unreasonable positions, always moving closer toward an intermediate reasonable compromise that often can be predicted by looking at the parties' opening positions. Some theorists also describe and avoid "Scandinavlan bargaining" (in which a party decides what is the right and fair outcome, proposes it, and refuses to deviate from it, because it is fair and right), and "Sovlet Cold War bargalnlng" (in which ultimatum. and threat replace reasoned negotiations). Interest-based bargaining is more complex. The lawyer works with his or her client to examine how a given goal or objective will help the client, and why, and whether there are other ways that could also achieve the same or better ends. The lawyer does not bring the issue to the bargaining table until it can be explained persuasively why the client needs whatever is being sought, and why the other party ought to consider it a reasonable goal. The collaborative process includes commitment to respect the legitimate settlement objectives of the other party, and to attempt to find winwin solutions that achieve the legitimate goal of both whenever possible. Those commitments give rise to the primary importance of working first with one's own client to be sure that true interests, not artificial negotiating posltlons, are being presented.

³⁶I am indebted to my colleague, Laurence Wilson, for giving me permission to use and adapt this theoretical framework. The actual work of retooling in the four stages is subtle and fascinating, and it cannot be mastered from reading an article or book. Trainings that include role-playlng and critique are the most efficient way to learn these skills. It can be done independently through a combination of working with trusted colleagues and studying with mental health and communications professionals, but the learning curve will be considerably slower, and more of the learning will be via trial and error.

³⁷See Ronald I. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 Colum. L Rev. 509 (1994).

³⁸It is Important to emphasize that the clients are not giving up their right to have their dispute adjudicated in court. Either party can terminate the collaborative process and go to court at any time. The lawyers, however, cannot go with them. In this respect, collaborative law is a "limited purpose retention. " That being so, it is particularly important that the retention agreement is drafted clearly and that the clients fully understand and agree that should they go to court. they will need to retain new counsel.

³⁹It is effective but is not for all clients. In the family mediation model most prevalent in Northern California. attorneys do not participate directly in the process and are not present during mediation. Where there are significant imbalances in financial sophistication. negotiating skill, or emotional comfort about the divorce, or if serious emotional disturbance is present, it can be difficult for a neutral mediator to maintain the level playing field that is essential if a fair agreement is to result. Either an unfair agreement may result. or one or the other of the parties may perceive the mediator as biased and the process may end. Consequently, mediation may be best suited for the higher functioning divorcing spouses. those who are capable of handling conflict and strong feelings without losing their ability to negotiate.

⁴⁰One client of mine, a successful forensic physician with a well-honed suspicion of lawyers, was especially delighted with this aspect of collaborative law. "If you guys can't solve the problem. you're out of a job!" he chortled. The lawyers, of course, tend to emphasize how effectively collaborative law provides incentives for difficult clients to behave reasonably. Both are true.

⁴¹I attribute this to the fact that effective collaborative lawyer model and demonstrate good problem-solving skills and succeed in soliciting both spouses' positive participation in that process. Where there is a residual core of positive affection between the parties--and that is often present, but extinguished early in the conventlonal iegal process--successful, cordial problem solving together sometimes moves couples to try again.

⁴²Collaborative law requires basic honesty, self-respect, and at least a modicum of respect for the other spouse. It is inconsistent with active domestic violence and with certain kinds of mental illness and character disorders. For the process to work wen, both parties need to trust the other's fundamental honesty as to assets, debts, and income; both need to take considerable personal responsibility for their own behavior; both need the ability to control emotions under stress sufficiently so that unacceptable outbursts do not fatally undermine the process. Further qualities correlated with successful collaborative representations include that each party value integrity, civility , and a mutually fair outcome more than getting the biggest share of the pie above all else, and that each party be able to prlortize, and to take ultimate responsibility for devising and accepting their own terms for settlement. Not all clients can do these things. Nor can all lawyers engage in the sele-examlnation. self-criticism, and retraining to undo the instinctlve, unreflectlve behavior of the career gladiator. Further, there will always be clients who prefer not to take so much responsibility for their own destinies, who would rather turn their cases over to lawyers and judges. And, from time to time (but probably far less often than we might imagine), there will be, with all the good faith that could be desired, still an issue that cannot be resolved except via third-party decision making. There are ways consistent with the collaborative process to contain resolution of thoSe disputes and avoid runaway litigation, but discussion of them is beyond the scope of this article.

Live help from 9:00 am to 6:00 pm M-F MST.