HUNTER‐GATHERER COLLABORATIVE PRACTICE

This article describes the development of a practice group based on a hunter‐gatherer model, with the mission of providing high quality collaborative divorce services, with an emphasis on protecting children and divorcing partners, and expanding access to middle‐ and lower‐income families. The practice group professional disciplines include law, mental health divorce coaching, co‐parent coaching, financial analysis, and case administration. These professionals have collectively associated their individual practices to address challenges facing their collaborative practices. With common purpose, the practice group builds skills, generates client base, nurtures trust, and lays a common knowledge base. Collaborative divorce teams formed from its members serve divorcing families with efficient, cost‐conscious, interest‐based negotiation processes that protect children and help parties productively move on with their lives.     

WHAT SHOULD FAMILY LAWYERS KNOW? RESULTS OF A SURVEY OF PRACTITIONERS AND STUDENTS1

The contemporary practice of family law demands that lawyers know far more than the law. Results of a recent survey of professionals and law students suggest that today's family lawyer needs knowledge and skills that are often missing from law school curricula. Survey respondents emphasized the importance of strong interpersonal skills like listening, negotiation, and working with clients in emotional crisis, as well as keen understanding of financial issues in family law, the impact of separation and divorce on children, and the ethical dimensions of family law practice. Law students held contrasting views to law faculty and to practicing attorneys on a number of measures, ranking adversarial courtroom skills as more important and placing less emphasis on skills, knowledge, and attributes related to ethics.     

Family Peacemaking with an Interdisciplinary Team: A Therapist's Perspective

Interdisciplinary teams provide an unparalleled opportunity for peacemaking in families within the consensual dispute resolution continuum. This interdisciplinary environment was born out of the integration of Collaborative Law, in which lawyers limit the scope of their services to settlement by way of a signed agreement, and Collaborative Divorce, a team approach to divorce services that includes a lawyer for each party along with a Collaborative Divorce Coach for each party, a neutral financial specialist, and a neutral child specialist. Taken together, Interdisciplinary Collaborative Practice supports the resolution of legal issues out of court as well as addressing any emotional, relational, or behavioral problems that create obstacles to the successful resolution of the separation process.

Key Points for the Family Court Community:
• Collaborative Practice creates legal representation in a consensual environment limiting services to settlement negotiations by way of a written agreement.
• The International Academy of Collaborative Professionals includes 5,000 members in twenty‐five countries.
• Legal representation in a consensual environment together with interdisciplinary teams create endless possibilities for dispute resolution processes.
• Collaborative Lawyers, Collaborative Divorce Coaches, child specialists, and financial specialists can create custom‐fit interdisciplinary teams that work together out of court to support families through marital transition.
• Interdisciplinary teams are family centric, bridging appropriate disciplines and resources to the needs of the family to address the vast majority of divorce‐related problems.
• Divorcing families are moving targets, learning and evolving through the process.
• Therapeutic teams support families with more complex relational, emotional, and mental health problems to find resolutions out of court.
• Divorce is a mainstream event in Western culture; we need supportive processes to encourage the best possible outcomes for all family members, especially the children.

     

COLLABORATIVE PRACTICE IN THE CANADIAN LANDSCAPE

This article looks at the growth of collaborative practice in Canada in the last decade and the legal and Canadian cultural underpinnings influencing this growth. Government recognition of and support for collaborative process has come from both the federal and provincial governments. Statutory support in family law statutes and in ethical standards for lawyers encourage alternate dispute resolution and have helped normalize consensual dispute resolution options. The article also looks at decisions from Canadian courts relating to the practice of collaborative law, including the confidentiality of collaborative process negotiations as set out in the participation agreement and the standard of care necessary for collaborative lawyers.     

Hiring Teams,Firms, and Lawyers: Evidence of the Evolving Relationships in the Corporate Legal Market

How are relationships between corporate clients and law firms evolving? Drawing on interview and survey data from 166 chief legal officers of S&P 500 companies from 2006–2007, we find that—contrary to standard depictions of corporate client‐provider relationships—(1) large companies have relationships with ten to twenty preferred providers; (2) these relationships continue to be enduring; and (3) clients focus not only on law firm platforms and lead partners, but also on teams and departments within preferred providers, allocating work to these subunits at rival firms over time and following “star” lawyers, especially if they move as part of a team. The combination of long‐term relationships and subunit rivalry provides law firms with steady work flows and allows companies to keep cost pressure on firms while preserving relationship‐specific capital, quality assurance, and soft forms of legal capacity insurance. Our findings have implications for law firms, corporate departments, and law schools.     

FITTING THE FORUM TO THE FAMILY FUSS

This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem-solving process. Collaborative law involves a written "disqualification agreement" between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law.     

GOING TO COURT AS A LAST RESORT: ESTABLISHING A DUTY FOR ATTORNEYS IN DIVORCE PROCEEDINGS TO DISCUSS ALTERNATIVE DISPUTE RESOLUTION WITH THEIR CLIENTS

This Note advocates for the creation of a uniform ethical requirement that all attorneys in divorce proceedings involving children inform their clients about alternative dispute resolution (ADR), particularly mediation and collaborative law. By emphasizing cooperation and negotiation among the divorcing parents, both mediation and collaborative law offer these would-be litigants the opportunity to move forward with their parental duties long after the divorce is finalized. Using the ABA Model Rules of Professional Conduct as a template, this ethical requirement will ensure that clients are fully informed of the availability of ADR and of the chance to forgo potentially unnecessary litigation. Ultimately, the implementation of an ethical requirement holds the potential to minimize the impact of divorce on children by facilitating the process of moving forward for the family as a whole.     

Co-optation,competition and resistance: mediation and divorce professionals in Israel

This paper investigates the development of family mediation in Israel within the theoretical framework of the competition between professions (Abbott, 1988; Shamir, 1993), and the co-optation model of Coy and Hedeen (2005). It describes the formal institutionalization of family mediation in Israel and examines the claims made by lawyers, therapeutic mediators, and lawyer-mediators about the nature and boundaries of their professional enterprise and their goals and practices. Based on 254 questionnaires, semi-structured taped interviews and professional documents, our study found differences in the way the professionals construct the nature of the competition over mediation. While lawyers describe mediators as invading their realm of divorce practice, therapeutic professionals view mediation as a new field of knowledge which they are claiming as their own, in competition with legal professionals. Moreover, although elements of Coy and Hedeen's (2005) co-optation model were useful in describing the developing relationship between the divorce professionals, we found different strategies of resistance at each stage of the process.     

To Disclose or not to Disclose? That is the Question in Collaborative Law

Collaborative Law (CL) is a dispute resolution process increasingly used in family law and divorce designed to encourage problem solving negotiations by parties represented by counsel. Many states have adapted legislation to authorize and facilitate CL and thousands of lawyers have been trained in the CL process. CL lawyers and participants sign a Participation Agreement in which they agree that the lawyers will be disqualified if the CL process terminates without settlement. They also promise full and voluntary disclosure of information. The extent of the obligation of disclosure is, however, unclear. Through analysis of an extended hypothetical divorce settlement negotiation, this article advocates that CL lawyers and clients should assume an obligation to disclose material facts without a request from the other side. Traditional legal ethics, based on an adversarial framework, requires only disclosure of information when requested by another party. In addition, in traditional legal ethics, a lawyer cannot disclose information obtained in the course of the lawyer‐client relationship without the client's consent even if material to the negotiation. Some authority regulating CL, however, suggests that CL participants and counsel should disclose material information without a specific request even if a client does not want the information disclosed. In that situation, the CL lawyer should encourage the client to disclose the information but if the client refuses to do so, withdraw from the representation. This Article reviews the arguments for and against an obligation of affirmative disclosure in CL. It suggests that affirmative disclosure obligations should be the subject of discussion between CL participants and lawyers and that CL Participation Agreements should be drafted to establish a clear obligation. Finally, this article identifies key areas for further discussion and research on CL disclosure obligations.     

Law Students on Interdisciplinary,Problem‐Solving Teams: An Empirical Evaluation of Educational Outcomes at the University Of Denver's Resource Center for Separating and Divorcing Families

Models of lawyering in separation and divorce disputes are evolving to emphasize interdisciplinary collaboration, problem solving, alternative dispute resolution, and changes in legal education that reflect these changes in practice. At the University of Denver's Resource Center for Separating and Divorcing Families (Center), supervised law and mental health graduate students worked as a team to provide assessment and service planning, mediation, therapy, and agreement drafting to parents. Evaluation results showed client satisfaction, and that students acquired new knowledge, skills, and values in line with a collaborative, problem‐solving orientation. Strengths and weaknesses of the model are considered.     

Divorce Israeli Style: Professional Perceptions of Gender and Power in Mediated and Lawyer-Negotiated Divorces

This study examines how the power of women is constructed by divorce professionals in a divorce process that is governed by rabbinical family law, the egalitarian ideology of the recently established family courts, and the growing use of mediation in divorce disputes. It is based on 254 questionnaires and 57 interviews with lawyers, mediators, and lawyer-mediators. We found that except for a minority of women lawyers, practitioners claimed that women were not disadvantaged by family law, and that mediation does not adversely affect weaker parties. However, their reactions to hypothetical situations indicated that rabbinical law does matter for women's bargaining power, and for lawyers' recommendations for mediation. This study reveals the complexities of the social construction of gender and power in divorce negotiations and the role of women professionals in empowering divorcing women.     

Legal Elites and the Shaping of Corporate Law Practice in Brazil: A Historical Study

Brazil today has a legal market that allows for foreign lawyers and foreign firms, but existing regulations are restrictive. Foreign lawyers cannot practice domestic law or litigation, nor can Brazilian‐licensed lawyers working for foreign firms or partnering with foreign lawyers. This was not always the case, however. Until 1963, there was little regulation of the legal profession. Beginning in 1913, elite US lawyers traveled to Brazil, with some even becoming prominent domestic practitioners. They partnered with local elite lawyers (who maintained their domestic privileges) and served as key brokers for US businesses seeking market entry. Drawing on the elite theory literature, and on ethnographies, interview data, and over 1,000 pages of rare Portuguese and English archival sources, this study's thesis is that sophisticated US and Brazilian legal elites capitalized on the lack of regulation to advance their financial interests, and in the process transformed Brazil's corporate legal sector.     

Nature versus Nurture: A Comparison of Russian Law Graduates Destined for State Service and for Private Practice

This article explores the mind‐set of Russian law students on the cusp of graduation. Drawing on a 2016 survey, the analysis finds that, despite having taken different paths to their degrees, the respondents share a confidence in the Russian courts that distinguishes them from Russians without legal education. Within the sample, a natural division is evident between those who plan to go into state service and those who plan to go into private practice. Aspiring state lawyers are more likely to support the policies of the Putin regime, even when they preference politics over the letter of the law. This strongly suggests that the tendency of judges and state lawyers within the criminal justice system to work as a team to ensure convictions is not solely the result of workplace incentives, as had previously been assumed, but is an element of a worldview that these lawyers share that predates their legal education. Aspiring private lawyers, by contrast, are consistently more skeptical of the state. To the extent that they are later coopted by the state, as studies of criminal defense lawyers suggest, such behavior would likely be the result of a desire to endear themselves to investigators and prosecutors in order to ensure further appointments to represent indigent clients.     

Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.     

Courting Compliance: Case Managers as “Double Agents” in the Mental Health Court

An ethnographic study of four Midwest mental health courts was focused on how case managers influence the judicial response to offender noncompliance. Mental health courts, which bear little resemblance to traditional work group models, are staffed by teams of legal and social service professionals working collaboratively toward reducing recidivism and community reintegration for high‐risk offenders. Few studies, however, have explored how treatment providers practice their trade in this new court organization. I investigate how case management professionals, working at the intersections of the social welfare and criminal justice systems, leverage courtroom decision making that results in greater leniency or enhanced punishment. The findings suggest that mental‐health‐court case managers act as boundary spanners in terms of their strategic use of resources to facilitate treatment goals. I conclude that case managers act as “double agents” challenging the state to advocate for clemency while enforcing client rules to uphold the integrity of the court.     

Mediation,financial remedies,information provision and legal advice: the post-LASPO conundrum*

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.     

Older women and intimate partner violence: effective interventions

Women above the age of 60 who have experienced intimate partner violence (IPV) have specific needs compared with younger victims. More research is emerging that assists counselors and other helping professionals with identification of these needs and aids to promote the mental health and well-being of this population. Professionals must consider the generational values held by older IPV victims and understand how values may impact decision making. Integrating safety planning and risk assessment into the counseling process is vital. Older IPV victims may seek counseling for posttraumatic stress or depressive symptoms as a result of the abuse. Others may participate in counseling for issues unrelated to IPV. Therefore, a thorough assessment process should include questions related to relationship dynamics so that the counselor has a complete understanding of all factors impacting the client's functioning. Helping professionals must also have an understanding of available community resources, as well as barriers that these clients face as they take steps toward recovery from trauma. This research uses qualitative analysis of case studies to assist helping professionals in understanding the most effective interventions when working with this population.We found that a contextual approach focusing on the restoration of self-confidence is a constructive means of initiating recovery from trauma.     

The Role of Western Religious Values in Peacemaking for Divorcing Families

Peace (wholeness and integrity) is to be sought as the highest goal in the divorce process, affecting not only the divorcing couple but their family and community as well. The value of “community” found in the three major Western religious traditions suggests that more than just the immediate family should be involved in crafting divorce settlements and that the involvement of clergy may aid in the divorce process, especially in providing rich religious metaphors and exempla to promote peaceful negotiations. Other religious values such as “humanity in the divine image,” “love,” and “the fullness of time” can be useful in working with the divorcing couple to allow their stories to be told, provide time to sort out their complex emotions, and help reduce the impulse to see the other solely as an enemy to be eliminated in battle. “Sin and atonement” can serve an important role in restorative justice, while “the delayed arrival of the divine kingdom” provides a reasonable way to assess what determines success, both for the divorcing couple and for divorce professionals.

Key Points for the Family Court Community:
• Religious values found in Judaism, Christianity, and Islam can be consciously utilized to help divorcing couples separate more peacefully.
• Providing opportunities for each spouse to be fully heard and seen is a crucial component in helping to bring more peace into the divorce process.

     

Family Values: How Children's Lawyers Can Help Their Clients by Advocating for Parents

Children's lawyers too often view themselves as standing in opposition to parents in dependency proceedings. In this article, the authors argue that child advocates do a disservice to their clients by not using their considerable skills, role advantages, and moral authority to actively help parents. Noting that areas of common ground far exceed those places where the children's bar and the parents' bar might part company, the authors contend that children's lawyers have an obligation to actively fight for parents' rights. In particular, spending time early in a case to ensure that appropriate reunification services are being offered is well worth the investment, as it redounds to the benefit of all parties. Several concrete practice tips are offered regarding how children's lawyers can better serve their clients by regularly advocating for parents.     

EXPANDING COLLABORATIVE DIVORCE THROUGH THE SOCIAL SCIENCES

Since collaborative law was first proposed, collaborative practitioners have expanded its concepts and methods as it has grown in acceptance by professionals and the public. This article addresses how collaborative law can further expand its theoretical and practical base by drawing from social science perspectives on negotiation, conflict resolution and third‐party interventions. It also explores how collaborative practice draws upon two prevailing models of negotiation, the strategic problem‐solving and the social‐psychological model, and demonstrates how tools from each model can be used at different points in a collaborative case's lifecycle.