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Collaborative Family Law - Part I
Collaborative family law is designed for clients who wish to resolve their differences with minimal conflict and without litigation. Part I of this article discusses this distinct alternative dispute resolution ("ADR") process. Part II, which will be published in the December 2001 issue, will address the disqualification stipulation, ethical issues surrounding collaborative law, and the skills necessary to practice collaborative law.
One such approach is a promising "new" method of ADR collectively dubbed "collaborative law." Founded in the early 1990s by Minneapolis attorney Stuart G. Webb in response to his own growing dissatisfaction with a litigious family law practice, collaborative law has spread across the country and into Canada.3
Collaborative law, in all its forms, operates under the stated goal of providing a context "whereby couples can successfully resolve their divorce issues through a collaborative process, benefiting themselves, their children, their families and society as a whole."4 In collaborative law, lawyers, clients, and neutral experts, such as child specialists, mental health experts, vocational counselors, and financial consultants, work together exclusively toward settlement. If the matter should go to litigation, the lawyers and experts, by prior stipulation, are disqualified from the case. Collaborative law moves the focus away from the threat or expectation of a courtroom battle to a mandate that the parties, assisted by a professional collaborative team, resolve the complex trade-offs to meet their reasonable objectives and, thus, maximize their autonomy and priorities in crafting their own compromised resolutions.
Collaborative law models put the parties, lawyers, and other specialists to work as a single problem-solving unit with the expectation that, not only are the parties themselves best able to gauge their individual values and needs within the family context, but that most parties are more willing, and therefore more likely, to abide by their own promises than by edicts imposed by a court.5 In addition, a court-imposed resolution may often maximize legal principles that might seem arbitrary or unfair within the context of the parties' family. This spirit of collaboration may also establish a positive tone for continuing post-divorce family relations by building effective communication and negotiation skills, while avoiding the increased animosity and pain often associated with court battles.6
While some collaborative practitioners speak of this new model with the soul-stirring language of a religious conversion,7 collaborative law is not for all divorces, all clients, nor even all lawyers. Some divorces require litigation. For example, cases involving domestic violence or the inability of one or both parties to fully disclose information are not good collaborative candidates. The same is true of divorces in which the spouses have become so polarized that it is impossible for them to agree on important or even trivial issues; thus, the court must decide for them.
The conventional court system still has its place, and sometimes cross-examination is required to ascertain the truth. However, in cases involving two basically reasonable people who are going through the emotionally unreasonable time of severing their marriage - with the avowed hope of not making things any worse in the process - collaborative law is a promising alternative.
In the application of collaborative law, lawyers would be retained by the parties as legal advisors or "in association." Operating under an ADR paradigm, neither attorney would be considered the attorney of record in the proceeding, and both would be disqualified from becoming the attorney of record for either party if the dissolution is litigated. Notwithstanding, the attorneys could appear as counsel of record solely for purposes of filing the paperwork required by the court, such as the separation agreement, decree, child support worksheet, and transfer documents agreed upon by the parties. After completion, the attorneys would be authorized to withdraw.
It is anticipated that most of the work will be done before the initial pleadings are filed. For the collaborative law model to work post filing, statutory and rule changes will be required, not the least of which is that the court must agree that counsel is counsel of record only for the purposes of completing the paperwork, allowing the attorney to automatically withdraw upon case completion.
Few spouses enter into a dissolution with more than the barest idea of what is entailed or even what their legal rights and expectations might be. Family lawyers' extensive experience with divorce proceedings and processes (legal, financial, and emotional) and problem-solving abilities are invaluable, if not essential, to achieving an equitable dissolution. While counsel is not out of place in mediation,10 the collaborative family law's team synergy of parties, lawyers, and neutrals brings into play new dimensions of combined creative problem-solving and professional collaboration, which typically are not available in a mediation setting.
A number of local attorneys, financial specialists, and mental health professionals have begun work on a Colorado Collaborative Family Law Professionals ("CCFLP") group. This "umbrella" organization is compiling a list of interested attorneys and "neutrals," and will continue to hold informational meetings. Committees have drafted a mission statement and have started outlining formal principles and ethical guidelines, membership criteria, and retainer and stipulation verbiage.13 CCFLP members are investigating possible rule and statutory changes, while addressing malpractice concerns. Mediators, financial experts, and mental health professionals have also begun compiling resources and training for team neutrals.
It is hoped that the professional members of a collaborative team will be associated with the CCFLP or an affiliated group. Also, while length of family law experience required for CCFLP membership is still under debate, it is agreed that members and affiliates will be required to have some specific collaborative law training.14
Collaborative family law is a highly promising ADR option attempting to address these issues, allowing practitioners to better serve individual clients and their individual circumstances - especially those parties already seeking alternatives to the traditional court system.
NOTES
1. Under ABA Code of Professional Responsibility ("Code") DR 7-101 [originally enacted in 1969], an attorney was instructed to represent a client "zealously." Although Canon 7 of the Code required zealous representation to be "within the bounds of the law," reports from disciplinary cases noted that some attorneys appeared to equate "zealousness" with "overzealousness." [Hazard and Hodes, The Law of Lawyering: A Handbook on the Modern Rules of Professional Conduct § 1.3.101, 2d ed. (New York, NY: Aspen Pubs., Inc., 1990) at 70.] The "lack of fit between 'zealousness,'" id., and the proper quality of representation in non-adversarial situations has proven troublesome. However, the ABA Model Rules of Professional Conduct ("Model Rules") eliminated the term "zealously," referring instead to "competence" (Model Rule 1.1.) and "reasonable diligence and promptness" (Model Rule 1.3).
2. American Academy of Matrimonial Lawyers ("AAML"), Bounds of Advocacy: Goals for Family Lawyers (2001) at: www.aaml.org. (Preliminary Statement: "Effective advocacy for a client means considering with the client what is in the client's best interests and determining the most effective means to achieve that result. The client's best interests include the well being of children, family peace, and economic stability. Clients look to attorneys' words and deeds for how they should behave while involved with the legal system. Even when involved in a highly contested matter, divorce attorneys should strive to promote civility and good behavior by the client towards the parties, the lawyers and the court.").
3. "What is the History of Collaborative Law?" Collaborative Law Institute at: www. divorcenet.com/mn/mnfaq01.html; click on FAQs.
4. Basics of Collaborative DivorceSM Interdisciplinary Divorce Team Training (San Francisco, CA: International Academy of Collaborative Professionals, Jan. 2001).
5. See Pearson and Thoennes, The Benefits Outweigh the Costs in Divorce Mediation: Readings (Chicago, IL: ABA, 1985) at 94 ("[S]uccessful mediation clients are less likely to report problems with their court orders and more likely to report that their spouses are in total compliance."). See also Guffman, "For Better or Worse, Till ADR Do Us Part: Using Antenuptial Agreements to Compel Alternatives to Traditional Adversarial Litigation," 12 Ohio St.J. on Disp. Resol. 175 (1996).
6. AAML, supra note 2 ("An attorney should attempt to resolve matrimonial disputes by agreement and should consider alternative means of achieving resolution."). There is substantial evidence of the destructive effect of divorce conflict on children. Id. See, e.g., Amato, "Life-span Adjustment of Children to Their Parents' Divorce" in The Future of Children: Children and Divorce (David & Lucille Packard Found., 1994) at 4; Johnston, Kine, and Tschann, "Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access," 59 Amer. J. of Orthopsych. 576-592 (1989); Kurdek and Berg, "Correlates of Children's Adjustment to Their Parents' Divorces" in Children and Divorce (New York, NY: Jossey-Bass, March 1983); Emery, "Interparental Conflict and the Children of Discord and Divorce," 92 Psych. Bull. 310-330 (1982). In addition, divorce litigation has an adverse effect on the parental relationship. See Kelly and Duryee, "Women's and Men's Views of Mediation in Voluntary and Mandatory Settings," 30 Fam. and Conciliation Ct.Rev. 43-49 (1992); Kelly, Gigy, and Hausman, "Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study" in Divorce Mediation: Theory and Practice (New York, NY: Guilford Press, 1988). Parents who litigate their custody disputes may be more likely to believe that the process had a detrimental effect on relations with the divorcing spouse than parents whose custody or support disputes are settled. See, e.g., Bowman, "Idaho's Decision on Divorce Mediation," 26 Idaho L.Rev. 547, 549-550 (1989/1990) ("Compliance with child support orders has been shown to be fifty percent higher when achieved through voluntary agreement rather than when court-ordered," citing Waddell, "Improving Child Support Payments," 8 Mediation Q. 57, 63 (Sept. 1985). See also Irving and Benjamin, Family Mediation: Contemporary Issues (Sage Publ., 1995) ("Common sense suggests that such satisfaction [with mediation processes] should be related to greater compliance with the terms of the agreement, as it was in a number of studies.").
7. Tesler, "Donna J. Hitchens: Family Law Judge for the Twenty-First Century or: How the World's First Superior Court Collaborative Law Department Came to Be," Collaborative Q. vol. 2, issue 2 (Oct. 2000) ("It's good for the courts, it's good for the litigants, it's good for their children, and it's good for the community. This is a system that empowers people to resolve their own disputes, and to do it in a more creative and more lasting manner than has ever been achieved by a court order. . . . So I favor any system that best serves families and children, and from everything I've seen so far, the collaborative law approach is THE best, and the least litigious."). See also Tesler, "Collaborative Law: A New Paradigm for Divorce Lawyers," Psychology, Public Policy, and Law, vol. 5, no. 4 (1999) ("More surprising are the reports by collaborative lawyers of unexpected, even transformative effects they are seeing in their collaborative law practices. . . . [L]awyers whose practices consist primarily of collaborative cases [anecdotally] report significant improvement in the quality of professional life. . . . [T]hey feel renewed pride and excitement in the practice of law, that enhanced creativity infuses their work, and that they envision greater potential for the role of lawyers as problem solvers generally. Put another way, collaborative lawyers find themselves becoming members of a healing profession - and in so doing, heal themselves. . . . [C]ollaborative law holds out possibilities for societal good extending far beyond the benefits that individual lawyers and clients experiencing it might report. The practice of collaborative law in its highest form parallels the advanced practice of mediation, which Donald Saposnek has described as a form of 'practical spirituality.'" Saposnek, "The Art of Family Mediation," 11 Mediation Q. vol. 5, no. 9 (1993).) Stuart G. Webb, in a letter to Judge A. M. ("Sandy") Keith, dated Feb. 14, 1990, stated: "Personally, about four months ago, I made the final moves to abandon my trial practice [which was already slanted toward settlement] to devote myself exclusively to a family law settlement practice. This means that I have unilaterally declared that I will not go to court in an adversarial matter. My practice is fun again!"). See Basics of Collaborative Divorce, supra, note 4 at n. 4.
8. Webb letter, supra, note 7.
9. Kelly, "A Decade of Divorce Mediation Research," 34 Family and Conciliation Ct. Rev. (1996) (The term mediation encompasses many divergent approaches. ". . . Advice is given/not given, lawyers are present/absent; emotions are accepted/avoided; mediators are directive/nondirective, individuals/teams; sessions are sequential/marathon, caucus/joint group/individual; and the law is presented/not presented.").
10. Tesler, Psychology, Public Policy, and Law, supra, note 7 ("In the family law context, counsel for the parties sometimes is present in mediation, but more often does not attend.").
11. Anecdotal evidence in collaborative law's favor is powerful. See, e.g., Tesler, "Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It," 13 American Journal of Family Law 215-225 (1999) ("Many lawyers who practice collaborative law report a degree of enthusiasm and gratification from their work that had long been missing."); Tesler, "Donna J. Hitchens: Family Law Judge for the Twenty-First Century or: How the World's First Superior Court Collaborative Law Department Came to Be," 2 Collaborative Q. (October 2000); or simply conduct an Internet search on "Collaborative Law" to find more testimonials. While these may be "preaching to the choir," their words resonate with this author's own experience with traditional and alternate divorce proceedings.
12. See the American Institute of Collaborative Professionals' ("IACP") The Collaborative Review, the various collaborative groups' websites, and the recently published Collaborative Law by Pauline H. Tesler (Chicago, IL: American Bar Association, June 2001). The author's initial training, Basics of Collaborative Divorce, supra, note 4, was through the International Academy of Collaborative Professionals, publishers of The Collaborative Review: http//www. collabgroup.com or write c/o Tesler, Sandmann & Fishman 163 Miller Ave., Suite 4, Mill Valley, CA 94941; (415) 383-5600; claborate@aol. com. They hold training events throughout the United States (their website has an event schedule). Stuart Webb's organization is the Collaborative Law Institute (http://www.collaborative law.org). The author admits no direct experience with other groups, but there are several linked to the IACP site, and a simple network search turns up many more.
13. For copies of Colorado Collaborative Family Law Professionals materials drafted to date (and be reminded that these are still under discussion), please contact Candace McCune, (303) 793-3400; CMcCune@pdrlaw.net.
14. The author's firm, Gutterman Carlton & Heckenbach, LLP held a Level I training featuring national collaborative law lecturer Pauline Tesler in Denver on November 3, 2001. This Level I training focused on the skills required to be part of a collaborative team, as well as how to build those teams. For information on that event and future schedules, contact the author.
15. Tesler, Psychology, Public Policy, and Law, supra, note 7.
16. Id.
17. Id., quoting Justice Donald B. King addressing the New Ways of Helping Children and Parents Through Divorce conference sponsored by the Judith Wallerstein Center for the Family in Transition and the University of California (Santa Cruz, CA) in November 1998.
Background
"Collaborative" and "divorce" are hardly words that combine gracefully. Nevertheless, "adversarial" and "divorce" are concepts that can sometimes escalate the conflict and make matters even worse. While terms such as "zealous representation" - too easily transmuted in practice to "overzealous" representation - have been replaced by "competence" and "reasonable diligence and promptness,"1 and lawyers are encouraged to consider the client's entire circumstances - material, familial, and emotional2 - lawyers, judges, mental health professionals, legislators, and interested laypersons continue to examine non-adversarial alternatives to better serve the needs of particular clients.One such approach is a promising "new" method of ADR collectively dubbed "collaborative law." Founded in the early 1990s by Minneapolis attorney Stuart G. Webb in response to his own growing dissatisfaction with a litigious family law practice, collaborative law has spread across the country and into Canada.3
Collaborative law, in all its forms, operates under the stated goal of providing a context "whereby couples can successfully resolve their divorce issues through a collaborative process, benefiting themselves, their children, their families and society as a whole."4 In collaborative law, lawyers, clients, and neutral experts, such as child specialists, mental health experts, vocational counselors, and financial consultants, work together exclusively toward settlement. If the matter should go to litigation, the lawyers and experts, by prior stipulation, are disqualified from the case. Collaborative law moves the focus away from the threat or expectation of a courtroom battle to a mandate that the parties, assisted by a professional collaborative team, resolve the complex trade-offs to meet their reasonable objectives and, thus, maximize their autonomy and priorities in crafting their own compromised resolutions.
Collaborative law models put the parties, lawyers, and other specialists to work as a single problem-solving unit with the expectation that, not only are the parties themselves best able to gauge their individual values and needs within the family context, but that most parties are more willing, and therefore more likely, to abide by their own promises than by edicts imposed by a court.5 In addition, a court-imposed resolution may often maximize legal principles that might seem arbitrary or unfair within the context of the parties' family. This spirit of collaboration may also establish a positive tone for continuing post-divorce family relations by building effective communication and negotiation skills, while avoiding the increased animosity and pain often associated with court battles.6
While some collaborative practitioners speak of this new model with the soul-stirring language of a religious conversion,7 collaborative law is not for all divorces, all clients, nor even all lawyers. Some divorces require litigation. For example, cases involving domestic violence or the inability of one or both parties to fully disclose information are not good collaborative candidates. The same is true of divorces in which the spouses have become so polarized that it is impossible for them to agree on important or even trivial issues; thus, the court must decide for them.
The conventional court system still has its place, and sometimes cross-examination is required to ascertain the truth. However, in cases involving two basically reasonable people who are going through the emotionally unreasonable time of severing their marriage - with the avowed hope of not making things any worse in the process - collaborative law is a promising alternative.
Definitions
There are times in any practice when clients, attorneys, and opposing counsel have a good working, trustful relationship, allowing them to problem-solve together. The question is: Can such a productive climate be deliberately and consistently created? According to Stuart Webb, the founder of collaborative law -I propose doing this by creating a context for settling family law matters by, where possible, removing the trial aspects from consideration initially. I would do this by creating a coterie of lawyers who would agree to take cases, on a case-by-case basis, for settlement only. The understanding would be that if it were determined at any time that the parties could not agree and settlement didn't appear possible, or if, for other reasons, adversarial court proceedings were likely to be required, the attorneys for both sides would withdraw from the case and the parties would retain new attorneys from there on out to final resolution. I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law.8(Emphasis added.)At the heart of "pure" collaborative law are the divorcing spouses and their lawyers, all of whom have signed a stipulation pledging that they will work with each other in a cooperative manner, without litigation, and toward a solution satisfactory for both parties. Asset disclosures, with complete back-up documentation, and other discovery matters are handled informally and without court process. Other experts or "neutrals" may be involved, as necessitated by the facts of each case, but are not demanded by definition. In this team process (not unlike that found in a mental health staffing or medical triage), all parties and counsel pull together to reach a negotiated solution, at the same time, conserving both the financial and emotional resources of the family. A side effect of such actions, collaborative lawyers relate, is to conserve and often bolster the emotional resources of the attorneys as well.
In the application of collaborative law, lawyers would be retained by the parties as legal advisors or "in association." Operating under an ADR paradigm, neither attorney would be considered the attorney of record in the proceeding, and both would be disqualified from becoming the attorney of record for either party if the dissolution is litigated. Notwithstanding, the attorneys could appear as counsel of record solely for purposes of filing the paperwork required by the court, such as the separation agreement, decree, child support worksheet, and transfer documents agreed upon by the parties. After completion, the attorneys would be authorized to withdraw.
"Collaborative law moves the focus away from the threat or expectation of a courtroom battle to a mandate that the parties . . . resolve the complex trade-offs to meet their reasonable objectives. . . ."
It is anticipated that most of the work will be done before the initial pleadings are filed. For the collaborative law model to work post filing, statutory and rule changes will be required, not the least of which is that the court must agree that counsel is counsel of record only for the purposes of completing the paperwork, allowing the attorney to automatically withdraw upon case completion.
Comparison to Mediation
While they share similarities, collaborative law is a distinct ADR option, which emphasizes early intervention and a team approach. In mediation, due to the need to maintain neutrality, the mediator or facilitator must be careful to "lay out the options" without actually "advising" clients.9 In collaborative law, there is a partisan mandate that, in addition to giving advice, attorneys must work with an unreasonable or upset client, defuse one-sided delays, discipline the withholding of information, and counteract other non-collaborative behavior that impedes the integrity and efficiency of the process. Mediators can serve as case managers in the collaborative law model.Few spouses enter into a dissolution with more than the barest idea of what is entailed or even what their legal rights and expectations might be. Family lawyers' extensive experience with divorce proceedings and processes (legal, financial, and emotional) and problem-solving abilities are invaluable, if not essential, to achieving an equitable dissolution. While counsel is not out of place in mediation,10 the collaborative family law's team synergy of parties, lawyers, and neutrals brings into play new dimensions of combined creative problem-solving and professional collaboration, which typically are not available in a mediation setting.
What is Taking Place In Colorado
There is no "collaborative law credential" at present in Colorado - the paradigm is still defining itself through practice, and empirical research has not been conducted.11 Those interested in the concept should discuss collaborative law models with interested peers. In addition, several established groups offer formal skills training with experienced practitioners, and there are many other resources available.12A number of local attorneys, financial specialists, and mental health professionals have begun work on a Colorado Collaborative Family Law Professionals ("CCFLP") group. This "umbrella" organization is compiling a list of interested attorneys and "neutrals," and will continue to hold informational meetings. Committees have drafted a mission statement and have started outlining formal principles and ethical guidelines, membership criteria, and retainer and stipulation verbiage.13 CCFLP members are investigating possible rule and statutory changes, while addressing malpractice concerns. Mediators, financial experts, and mental health professionals have also begun compiling resources and training for team neutrals.
It is hoped that the professional members of a collaborative team will be associated with the CCFLP or an affiliated group. Also, while length of family law experience required for CCFLP membership is still under debate, it is agreed that members and affiliates will be required to have some specific collaborative law training.14
Conclusion
The number of pro se clients in all jurisdictions continues to rise,15 and the litigious nature of conventional divorce often is criticized. The adversarial process itself has a danger of magnifying even small issues and differences, and spouses "who entered the legal process only mildly unhappy with one another can thus be forced further apart by the nature of adversarial dispute resolution, emerging as enemies."16 As retired California Court of Appeals Justice Donald B. King acerbically put it, the role of the family law court too often is to "shoot the survivors."17Collaborative family law is a highly promising ADR option attempting to address these issues, allowing practitioners to better serve individual clients and their individual circumstances - especially those parties already seeking alternatives to the traditional court system.
NOTES
1. Under ABA Code of Professional Responsibility ("Code") DR 7-101 [originally enacted in 1969], an attorney was instructed to represent a client "zealously." Although Canon 7 of the Code required zealous representation to be "within the bounds of the law," reports from disciplinary cases noted that some attorneys appeared to equate "zealousness" with "overzealousness." [Hazard and Hodes, The Law of Lawyering: A Handbook on the Modern Rules of Professional Conduct § 1.3.101, 2d ed. (New York, NY: Aspen Pubs., Inc., 1990) at 70.] The "lack of fit between 'zealousness,'" id., and the proper quality of representation in non-adversarial situations has proven troublesome. However, the ABA Model Rules of Professional Conduct ("Model Rules") eliminated the term "zealously," referring instead to "competence" (Model Rule 1.1.) and "reasonable diligence and promptness" (Model Rule 1.3).
2. American Academy of Matrimonial Lawyers ("AAML"), Bounds of Advocacy: Goals for Family Lawyers (2001) at: www.aaml.org. (Preliminary Statement: "Effective advocacy for a client means considering with the client what is in the client's best interests and determining the most effective means to achieve that result. The client's best interests include the well being of children, family peace, and economic stability. Clients look to attorneys' words and deeds for how they should behave while involved with the legal system. Even when involved in a highly contested matter, divorce attorneys should strive to promote civility and good behavior by the client towards the parties, the lawyers and the court.").
3. "What is the History of Collaborative Law?" Collaborative Law Institute at: www. divorcenet.com/mn/mnfaq01.html; click on FAQs.
4. Basics of Collaborative DivorceSM Interdisciplinary Divorce Team Training (San Francisco, CA: International Academy of Collaborative Professionals, Jan. 2001).
5. See Pearson and Thoennes, The Benefits Outweigh the Costs in Divorce Mediation: Readings (Chicago, IL: ABA, 1985) at 94 ("[S]uccessful mediation clients are less likely to report problems with their court orders and more likely to report that their spouses are in total compliance."). See also Guffman, "For Better or Worse, Till ADR Do Us Part: Using Antenuptial Agreements to Compel Alternatives to Traditional Adversarial Litigation," 12 Ohio St.J. on Disp. Resol. 175 (1996).
6. AAML, supra note 2 ("An attorney should attempt to resolve matrimonial disputes by agreement and should consider alternative means of achieving resolution."). There is substantial evidence of the destructive effect of divorce conflict on children. Id. See, e.g., Amato, "Life-span Adjustment of Children to Their Parents' Divorce" in The Future of Children: Children and Divorce (David & Lucille Packard Found., 1994) at 4; Johnston, Kine, and Tschann, "Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access," 59 Amer. J. of Orthopsych. 576-592 (1989); Kurdek and Berg, "Correlates of Children's Adjustment to Their Parents' Divorces" in Children and Divorce (New York, NY: Jossey-Bass, March 1983); Emery, "Interparental Conflict and the Children of Discord and Divorce," 92 Psych. Bull. 310-330 (1982). In addition, divorce litigation has an adverse effect on the parental relationship. See Kelly and Duryee, "Women's and Men's Views of Mediation in Voluntary and Mandatory Settings," 30 Fam. and Conciliation Ct.Rev. 43-49 (1992); Kelly, Gigy, and Hausman, "Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study" in Divorce Mediation: Theory and Practice (New York, NY: Guilford Press, 1988). Parents who litigate their custody disputes may be more likely to believe that the process had a detrimental effect on relations with the divorcing spouse than parents whose custody or support disputes are settled. See, e.g., Bowman, "Idaho's Decision on Divorce Mediation," 26 Idaho L.Rev. 547, 549-550 (1989/1990) ("Compliance with child support orders has been shown to be fifty percent higher when achieved through voluntary agreement rather than when court-ordered," citing Waddell, "Improving Child Support Payments," 8 Mediation Q. 57, 63 (Sept. 1985). See also Irving and Benjamin, Family Mediation: Contemporary Issues (Sage Publ., 1995) ("Common sense suggests that such satisfaction [with mediation processes] should be related to greater compliance with the terms of the agreement, as it was in a number of studies.").
7. Tesler, "Donna J. Hitchens: Family Law Judge for the Twenty-First Century or: How the World's First Superior Court Collaborative Law Department Came to Be," Collaborative Q. vol. 2, issue 2 (Oct. 2000) ("It's good for the courts, it's good for the litigants, it's good for their children, and it's good for the community. This is a system that empowers people to resolve their own disputes, and to do it in a more creative and more lasting manner than has ever been achieved by a court order. . . . So I favor any system that best serves families and children, and from everything I've seen so far, the collaborative law approach is THE best, and the least litigious."). See also Tesler, "Collaborative Law: A New Paradigm for Divorce Lawyers," Psychology, Public Policy, and Law, vol. 5, no. 4 (1999) ("More surprising are the reports by collaborative lawyers of unexpected, even transformative effects they are seeing in their collaborative law practices. . . . [L]awyers whose practices consist primarily of collaborative cases [anecdotally] report significant improvement in the quality of professional life. . . . [T]hey feel renewed pride and excitement in the practice of law, that enhanced creativity infuses their work, and that they envision greater potential for the role of lawyers as problem solvers generally. Put another way, collaborative lawyers find themselves becoming members of a healing profession - and in so doing, heal themselves. . . . [C]ollaborative law holds out possibilities for societal good extending far beyond the benefits that individual lawyers and clients experiencing it might report. The practice of collaborative law in its highest form parallels the advanced practice of mediation, which Donald Saposnek has described as a form of 'practical spirituality.'" Saposnek, "The Art of Family Mediation," 11 Mediation Q. vol. 5, no. 9 (1993).) Stuart G. Webb, in a letter to Judge A. M. ("Sandy") Keith, dated Feb. 14, 1990, stated: "Personally, about four months ago, I made the final moves to abandon my trial practice [which was already slanted toward settlement] to devote myself exclusively to a family law settlement practice. This means that I have unilaterally declared that I will not go to court in an adversarial matter. My practice is fun again!"). See Basics of Collaborative Divorce, supra, note 4 at n. 4.
8. Webb letter, supra, note 7.
9. Kelly, "A Decade of Divorce Mediation Research," 34 Family and Conciliation Ct. Rev. (1996) (The term mediation encompasses many divergent approaches. ". . . Advice is given/not given, lawyers are present/absent; emotions are accepted/avoided; mediators are directive/nondirective, individuals/teams; sessions are sequential/marathon, caucus/joint group/individual; and the law is presented/not presented.").
10. Tesler, Psychology, Public Policy, and Law, supra, note 7 ("In the family law context, counsel for the parties sometimes is present in mediation, but more often does not attend.").
11. Anecdotal evidence in collaborative law's favor is powerful. See, e.g., Tesler, "Collaborative Law: What It Is and Why Family Law Attorneys Need to Know About It," 13 American Journal of Family Law 215-225 (1999) ("Many lawyers who practice collaborative law report a degree of enthusiasm and gratification from their work that had long been missing."); Tesler, "Donna J. Hitchens: Family Law Judge for the Twenty-First Century or: How the World's First Superior Court Collaborative Law Department Came to Be," 2 Collaborative Q. (October 2000); or simply conduct an Internet search on "Collaborative Law" to find more testimonials. While these may be "preaching to the choir," their words resonate with this author's own experience with traditional and alternate divorce proceedings.
12. See the American Institute of Collaborative Professionals' ("IACP") The Collaborative Review, the various collaborative groups' websites, and the recently published Collaborative Law by Pauline H. Tesler (Chicago, IL: American Bar Association, June 2001). The author's initial training, Basics of Collaborative Divorce, supra, note 4, was through the International Academy of Collaborative Professionals, publishers of The Collaborative Review: http//www. collabgroup.com or write c/o Tesler, Sandmann & Fishman 163 Miller Ave., Suite 4, Mill Valley, CA 94941; (415) 383-5600; claborate@aol. com. They hold training events throughout the United States (their website has an event schedule). Stuart Webb's organization is the Collaborative Law Institute (http://www.collaborative law.org). The author admits no direct experience with other groups, but there are several linked to the IACP site, and a simple network search turns up many more.
13. For copies of Colorado Collaborative Family Law Professionals materials drafted to date (and be reminded that these are still under discussion), please contact Candace McCune, (303) 793-3400; CMcCune@pdrlaw.net.
14. The author's firm, Gutterman Carlton & Heckenbach, LLP held a Level I training featuring national collaborative law lecturer Pauline Tesler in Denver on November 3, 2001. This Level I training focused on the skills required to be part of a collaborative team, as well as how to build those teams. For information on that event and future schedules, contact the author.
15. Tesler, Psychology, Public Policy, and Law, supra, note 7.
16. Id.
17. Id., quoting Justice Donald B. King addressing the New Ways of Helping Children and Parents Through Divorce conference sponsored by the Judith Wallerstein Center for the Family in Transition and the University of California (Santa Cruz, CA) in November 1998.
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