Family law has historically embraced dispute resolution models. Divorce cases are charged with strong feelings and children often pay a significant emotional price in contested litigation. Experts universally agree that for children, parental conflict in a divorce is toxic. Many clients are concerned about the welfare of their children and welcome alternatives to the courtroom. When given the choice, clients will often choose a process that does not exacerbate their difficult and tumultuous situation. Domestic relation clients can now choose two different models - mediation and the collaborative law process as alternatives to litigation.

Collaborative Family Law

Collaborative Family Law (CFL) is a continuation of the trend to empower participants in the divorce process that began with mediation. It is a revolutionary approach to divorce that has quickly spread throughout the United States and Canada. Since its beginning in Minneapolis, Minnesota in 1990, lawyers in thirty states and virtually every province in Canada have adopted the use of this dispute resolution process. Texas and North Carolina have Collaborative Law Statutes, and CFL is now taught in a number of law schools. Many lawyers who engage in the process report a new level of satisfaction in their professional lives.

CFL has had a particularly powerful impact in Cincinnati. The Collaborative Family Lawyers of Cincinnati began in 1997 as a committee of the Collaborative Law Center of Cincinnati. It is one of the most successful practice groups in the county, numbering over fifty-five lawyers. Hundreds of cases have been successfully completed using the collaborative model in Cincinnati. A roster of lawyers trained in CFL and more information can be found at www.familycollaborativelaw.com, the website of the Collaborative Family Lawyers of Cincinnati. CFL organizations have been created in Northern Kentucky, Warren, Butler and Clermont counties.

By definition, a CFL case requires that a husband and wife are each represented by attorneys trained in interest-based collaborative negotiation, the choreography and structure of a CFL case and conflict resolution. There is a focus on empathetic communication and collaborative, as opposed to positional, advocacy. Counsel and clients execute a contract, called a Participation Agreement, which precludes both attorneys from representing their clients in litigation in the event the case reaches impasse, or in the event either party chooses to withdraw from the CFL process. Signing this contract binds both the parties and their counsel to the negotiation process. The contract expresses the intent of the parties to use the skills of counsel to reach a settlement without using the courtroom and focuses the participants on problem solving. Formal discovery is replaced with information gathering. Where necessary, the parties may choose to execute affidavits affirming that all relevant information has been fully disclosed.

After signing the Participation Agreement, the process requires that the participants focus on the interests of both clients, gather sufficient information to insure that decisions are made with full knowledge, create a full range of options, and then choose options that best meet the needs of the parties. The structure, along with the skill of counsel, creates a problem-solving atmosphere with a focus on interest-based negotiation and client empowerment.

The "collaborative choreography" is critical to the CFL process. A shared choreography insures that the lawyers prepare and structure the negotiations in a similar way. Most of the negotiations take place in four-way meetings with clients and counsel. The initial four-way meeting sets the stage for a problem-solving atmosphere. The clients find comfort in the knowledge that they have both been similarly briefed by counsel. Both are prepared to articulate their interests and goals. Both know that they have been given the same communications rules and both are aware that the lawyers will provide a safe framework in which they can negotiate in their own best interests. Subsequent meetings allow for the exchange of information and negotiation of the case.

The Participation Agreement makes CFL a revolutionary approach. The lawyers and clients are solely focused on a problem-solving approach. Having the "hammer" of litigation off the table changes the nature and tone of the negotiations. Additionally, in some CFL cases, mental health professionals trained in the CFL model, may join the case as Child Specialists to assist with parenting issues or as coaches to assist with communication issues. In other cases, the parties may choose to have a neutral financial planner, trained in divorce issues, join the process to analyze support, asset division and budgeting issues.

Mediation

Family law mediation is another alternative to litigation. Mediation is a structured problem-solving process in which a neutral, impartial third person assists the parties to reach an agreement. The mediator, often a family law attorney, is trained in interest-based negotiation and facilitates the discussions and manages the process to insure full discussion and the resolution of issues. The mediator may make suggestions or recommendations but the mediator does not impose his view of what the agreement should be or what the parties should do.

In this model, the parties negotiate directly with one another under the direction of a mediator. The mediator’s role is to create an environment where the parties can sit together and discuss settlement options. In the family law context, the actual mediation sessions usually do not involve attorneys. However, the parties each have their own counsel to consult in order to understand court outcomes and compare these outcomes with the options generated within the sessions. As in the CFL process, mediators often turn to associated mental health professionals and financial planners to assist families. Mediation is often used by the family law court. Judges may order the parties to mediate various issues in an effort to resolve the case without a lengthy courtroom battle. Most Shared Parenting Plans include a requirement that the parties attend at least three mediation sessions before filing motions with the court. Mediation can also be used in the CFL model if the parties reach impasse, before the parties turn to litigation. This "impasse meditation" involves both counsel and the parties in the mediation session. Mediation has proven to be effective is keeping a significant number of cases from entering the court system.

Choosing an ADR model in the family law case

Many divorcing couples with children continue to interact with one another and want to avoid the adversarial tone inherent in the litigation process. Mediation and CFL attempt to find common ground. The goal is to assist the parties in achieving better communication and problem-solving skills while still effecting a termination of the marriage. Both mediation and CFL focus on working with the dynamics of the family law case. Mediation and CFL clients are often surprised at the successful discussions that ensue during a meeting with the other spouse. These models encourage successful discussion - the mediator and collaborative lawyers work hard to help make this happen. Effective communication increases the chances of settlement.

What are the differences between the two?

In mediation, the professional conducting the process is neutral - the mediator has no allegiance to either party. The mediator's function is to create an environment to insure that the parties can successfully communicate with each other and resolve their problems themselves. The process provides a neutral trained to help couples resolve their own case in the manner that they want.

In the CFL model there is no neutral. Meetings usually involve both parties and their respective counsel. The lawyers conducting the process are aligned with their own clients and are actively involved in creating options and settlement discussions and negotiations. While clients are encouraged to generate options, the lawyers also generate options and advocate on their client's behalf.

Clients who have decided to terminate their marriage frequently say they do not want a court to make decisions that impacts their families. Clients now have the option of choosing either CFL or mediation to arrive at a resolution of property, support and parenting issues without a third party decision-maker. Both models effectively and directly empower clients to work toward resolving their own disputes.