Extended  Consultation

Description
Extended Follow-Up
Phone Follow-Up

Mediation Service

What Mediation is
How much & How long?
Mediation-Pre-nup Method

Sample Mediation Agreement

Collaborative Practice

CP: A new form 

Support Calculation 

QDRO Service

Qualifications

FAQ

Family Law Essays

Sitemap

Directions

A. A superficial 2 description: Collaborative Law is a style of practice designed by Minnesota lawyer, Stuart Webb during the late 1980s. It turns the conventional model of adversarial representation on its head by focusing on the fact that in all areas of law the settlement rate in American courts exceeds 90% and that rate for family law cases is even higher.

It specifically rejects the notion that: "The best way to settle a case is to prepare it for trial," as unproven, suspiciously consistent with the economic self -interests of the lawyers who espouse it to the potential detriment of their clients, and within the context of family law, pernicious and arguably evil.

Collaborative Practice employs remarkably simple techniques to generate the same kind of motive force for settlement that comes from an approaching trial. The key to Collaborative Practice is so simple that experienced practitioners tend to see its potential without further explanation and to wonder "Why hasn’t someone thought of this before? Why didn’t I think of this before?"

The May/June 1979 issue of the State Bar Journal 3 contained the four-page article entitled "Child custody: A legal problem?" that began what is now referred to as the ADR Movement. It was written by Donald A. King, then a recent appointment to the Superior Court in San Francisco, and it described some extraordinary results from an unusual jurisprudential experiment.

 Prior to his appointment Judge King was a prominent Bay Area construction law attorney, who had no training, no experience, no interest, and no known aptitude in Family Law. Given the power of seniority and the nature of a family law judicial assignment, Judge King found himself handling the Family Law Short Cause (custody) calendar. How the experiment began is too long a story to tell here. The short version is that Judge King was able to get a probation officer and a social worker assigned to his courtroom. He announced a Departmental Rule requiring parents seeking a hearing over any custody issue to meet with either the social worker or the probation officer to discuss the case. The meeting was scheduled either the day before or on the same day as the hearing.

In his article Judge King reported that of the 1,300(!) cases he referred for these conferences approximately one dozen required a hearing. A second observation was that during the last six months of the experiment the number of custody trials (i.e. permanent custody issues) were required "no more than once or twice a month," whereas the comparable experience outside the experiment required "10 to 20 [trials] each week."

Although I wasn’t practicing Family Law when this article was published, I have a specific recollection of reading it and thinking: "This sounds like the discovery of the legal equivalent of penicillin." My reaction was shared by the Legislature. By January 1, 1981, every county in California was required by statute to establish family (custody) mediation services similar 4 to those described by Judge King. The success that these early mediators had with child custody cases – the most difficult and contentious issues imaginable – has lead observers to conclude, "If they can settle those disputes, conflict over mere money should hardly constitute a challenge."  

In 1995 I met Stuart Webb and heard him describe his idea for "Collaborative Law and Practice," and how the idea had become a reality in Minnesota. As with reading the King article, I have a specific recollection of thinking that the impact of Collaborative Law, on nearly every area of practice, would be significantly greater than the King version of mediation. I was so excited about the "Coming of Collaborative Law" that I met with the managing partner of most of the firms in Santa so I could feel a part of the Collaborative Revolution. The lawyers with whom I met (who didn’t practice Family Law) seemed to share my enthusiasm.

That was five or six years ago. I know of no case from Santa Barbara that’s been managed by use of the basic principles of Collaborative Practice.

Nevertheless, the concept is alive and well in Minneapolis, it’s definitely taken hold in the San Francisco Bay Area, and it is being practiced enthusiastically by a group of eighteen experienced Family Law lawyers in Ventura.

1. Zealous? How many clients really want "zealous" representation? Most of us have learned how to practice law by observing others and then by doing it. There’s a theory of contract law that best predictor of whether a court will enforce a contract is not the degree by which it conforms to rules of law but rather the degree to which it embraces the traditions, customs, and practices of the business in which it’s made. Few of us attempt to create new ways of practicing law. At most we might adopt or work out a few variations after we get a good feel for the principal theme. When  accepting a "litigation case" we know in advance that there will be law and motion work, discovery, continuing settlement efforts, possibly some sort of an ADR referral and perhaps more or less "trial preparation" almost always terminated by settlement rather than trial. In other words the client is "represented zealously within the bounds of the law." 5 Zealous  representation might be just the ticket when fighting against a superior force and the bills are being paid by someone else or the lawyer is working pro bono (whether s/he knows it or not), but this is not what a client needs when the "issues" are problems looking for solutions rather than contests to be won or lost, and when every penny paid for attorney fees reduces, in absolute fact, what’s available to fund a settlement, and where the parties, like it or not, are going to have to do business with each other after the shooting is over and their lawyers disappear to zealously advance the interests of the next client.

Some clients might opt for gentle, efficient, smart representation over "zealous" if given a choice. It’s this choice that Collaborative Practice offers.

The ingenuous vehicle that distinguishes a Collaborative Practice from one where a genuine attempt is made to settle cases sooner rather than later is the Collaborative Representation Agreement, to which all the lawyers and all their clients are parties. The agreement pre-empts the default job descriptions of the attorney-role and the way it’s supposed to be done. The contract provides that the clients are hiring their lawyers to not litigate, to not prepare for litigation, but to settle the case, which is what’s almost certainly going to happen regardless of what the representation agreement says. Having defined the attorney’s task, the agreement gives its mandate some teeth by providing, in effect: ‘If any of the parties or any of the lawyers feel the need to ‘go to the law’ all the lawyers are fired. They have failed to perform the task they undertook, so they’re all failures and they’re all losers (but they’ll still get paid for the work they’ve done.) The case will be turned over to new, "trial" counsel for all parties. Sometimes the potential substitution has been arranged in advance and the  identity of successor counsel is known to all; otherwise the new lawyers are selected and retained as the original lawyers withdraw.

Collaborative Law is a synthesis of at least five different ideas and developments concerning law and practice that have received considerable attention during the last ten years.

1. ADR. The first, of course, is the ADR movement, a direct result of the success of court- based mediation and the private mediation that followed in its wake. Lawyers who have participated in successful mediations get the direct experience of satisfaction that comes from participation in the creation of an "organic" settlement, which is one that develops and grows from the activities of the parties and counsel and which is distinguished from an "imposed" settlement, the origins of which are essentially coercive: ‘If you don’t settle the [potential] consequences could/will be…’

Lawyers who have had positive experiences with mediation are likely to see that many of the techniques used in mediation are radically different than those used in a litigation practice, but are also the same at a deeper level. Two of the central aspects of mediation are: (a) Control and design of process; and (b) Persuasion. Thus, the professional task of the lawyer and the mediator are very similar, but mediation uses a new set of tools. While litigators aren’t likely to abandon the way they do business, positive encounters with mediation or other forms of ADR are likely to make them open to other innovations and to examine conventional assumptions about the law and to be especially sensitive to the ways those assumptions unnecessarily limit what can be done with the way it’s practiced.

2. Reflective Practice. A notion called "Reflective Practice" was developed by Donald Schöen, a professor at MIT. His academic associations gave him a legitimacy that might not have been accorded similar work done at a less distinguished university. In any event, Schöen’s two books, The Reflective Practitioner (1984) and Educating the Reflective Practitioner (1990) promote the idea that a professional practice is usually something that the practitioner develops and improves during the course of a career, and that most of the improvement is not the result of conscious and deliberate decisions and actions. There is a large research literature suggesting that excellent practitioners are usually unaware of and can’t accurately describe many or most of the attitudes and activities that have lead to their professional excellence.

Schöen’s "reflective practitioner" evolves his or her own "Theory of Practice," which is a mental construct which, at least in theory, reconciles one’s deepest personal beliefs and values with professional things one does and believes at "lower levels of abstraction" (e.g. principles of practice, techniques of practice, and the "moves" that are the operational components of technique).

The practicality of Schöen’s work is open to question, and its implementation is problematic. But the idea of a "praxis" that can be deliberately and systematically improved and harmonized with one’s maturing values and attitudes is a welcome one. Professions are institutions; institutions provide stability and predictability; resistance to change promotes both. Students at professional schools and professionals attending their Continuing Education Classes are beginning to hear that they can and should take personal responsibility for their manner of practice and that they shouldn’t be bound or constrained by the dictates of convention until it’s been subjected to their own critical examination.6 There is at least some hope that the collision of these two values will result in a synthesis that allows for stability and an attitude toward innovation that’s neutral if not receptive.

3. The Harvard Law School’s "Program On Negotiation" (PON). A review of the current course catalogues from the country’s leading law schools confirms that there hasn’t been a significant change in the law school curriculum for at least thirty years. In fact the PON at Harvard has not had a big impact on what its students study for three years. Nevertheless, it is a significant commitment by a major institution to the proposition that negotiation is a skill that can be taught and learned. A skill that must be learned by lawyers, should be learned by other professionals, and can be learned by anyone else. The popular success of Getting To Yes ensured the Program of a well-publicized start, the Program’s brief courses at Harvard, and its specially designed courses given throughout the country and presented to a wide variety of groups, cause the public to appreciate the lawyer’s essential role as a "peacemaker," perhaps at the expense of the role of zealous advocate.

4. Unbundling of Legal Services. The term "unbundled services" comes from medical economics and refers to a billing practice that breaks what has been conventionally treated as a single medical procedure into a bunch of Little Procedures.

This adds a lot of lines to the billing statement and the sum of the charges for the Little Procedures is always greater than the "usual and customary fee" for the Big Procedure. The term’s connotation is negative, which must mean that it was coined by those who pay the bills rather than by those who send them.

‘Unbundled legal services’ has a positive connotation. It provides an alternative to the "full service firm" providing "full service" on the all cases it accepts. Forrest Mosten, a true pioneer of the law, has a delightful slide show featuring both exterior and interior views of various kinds of law firms ranging from those who pay their new associates $175,000 a year to those operating on a month-to-month rental of a storefront. Mosten demonstrates persuasively that these photographs not only allow us to induce what kind of law the firm practices but also how it practices. Mosten probably knows and understands the market for legal services as well as anyone, and he claims that there is a huge potential demand for limited legal services.8  This demand will come from people who now go without legal services, but, he claims, it will also come from sophisticated clients who are willing and able to pay for what they get. They will require more by way of legal services than they do now, but they will 8 want them in a variety of packages from a variety of providers. Less and less will corporate clients be willing to simply "turn over" a case to a selected firm, expecting the firm to "handle it."

The "unbundling" and repackaging of legal services presents both a challenge and opportunity. There will be limits to how small a particular "bundle" can be as well as constraints on the composition of new bundles. There will be a continuing demand for traditional legal services. But now is a particularly opportune time for the appearance of alternative methods of practice.

5. Responses to technological advances. Last week Ray McGregor, our county Law Librarian showed me, in less than five minutes, how one can: (a) Access and print virtually any reported decision or statute; (b) Access and print all the California jury instructions; and (c) Access, complete and print the California Judicial Council Forms, ready to be filed with the court. All of this is free and available to anyone, anywhere with access to the Internet. 9 A law office with shelves and shelves of case reports signals something quite different to the discerning client than it did just a few years ago. Technology offers new choices. It makes certain tasks much easier to perform than ever before. Relentlessly, it will force lawyers to abandon some of their old ways. For this discussion, the nature of the changes is not important. What’s significant is the fact that developments in the recent past that affect the manner in which a law office can or must be managed have been unprecedented, and the changes that are taking place have the effect of enhancing opportunities to practice law in ways that have never before been tried.

1. The American Bar Association just published Collaborative Law: Achieving Effective Resolution in Divorce without Litigation. 10 I believe it’s the first book on the subject. Its author, Pauline H. Tesler, is a distinguished Bay Area Family Law attorney and a founder of the "Bay Area Collaborative Group." She says that Collaborative Law has taken hold in places other than San Francisco and Minnesota and that interest in it is spreading throughout the United States, Canada, and Europe. But we need not rely on second or third hand reports from afar. In April, 2001 the ADR Section of the Santa Barbara County Bar Association invited two Ventura lawyers to speak on their experience with Collaborative Law.

2. Ventura. Donna Santos and David Schwartz are both well-known, busy Ventura Family Law practitioners. Mr. Schwartz told us that he first heard about Collaborative Law in October, 1999. He and another Ventura lawyer went to San Mateo for a one-day training in December, 1999. By January 20, 2000 he had selected fifteen other attorneys and induced them to meet to hear about the concept and to discuss the possibility of starting a group in Ventura. They brought Stuart Webb to Ventura for a one-day training in late February. They brought another trainer to Ventura for a two-day training during the summer of 2000 and used a third trainer for two half -day sessions during the early fall. By the end of September, 2000 they established and staffed an office and have been in business ever since.

Mr. Schwartz was emphatic when he told me that he’s never been a "mover" or a "shaker" and has never wanted to be either. He said that the energy he had to put the group together and to keep it moving came from his enthusiasm for the idea of collaborative practice and nothing else. Since the initial meeting in February, 2000 only one of the "Original Sixteen" has left (for personal rather than professional reasons), and two more were added early on. In April, 2001 Mr. Schwartz estimated that each member has invested a total of about $5,000 in the enterprise. One of the issues developing within the group is a difference in opinion as to whether it should be open to new membership. Apparently, all the members would welcome and support the creation of a second group. Some would be inclined to open the original group to new members; others feel that group cohesion is very important and has be promoted by the fact that they have all done exactly the same training at the same times.

3. Santa Barbara. It would give me no satisfaction to see Collaborative Law sweep the United States, fulfilling my 1995 prediction, if Santa Barbara were somehow missed or left out. I’ve practiced here for twenty-five years and in spite of my best efforts to figure it out, I know of no way to tell what kind of changes are likely to take or what kind of activity is likely to effect change. Thinking that it might add some cache to a training program, initial inquiry was made at the Harvard Law School to see if it might be possible for a group of Santa Barbara Family Law lawyers to "attend Harvard" next summer for a week of Collaborative Law training. It might be. But if the kind of interest and enthusiasm that inspired Ventura’s Group of 18 is present in our own Family Law Bar, its expression has been subdued.

So, this article is a call for leadership; zealous leadership. And because escaping one homicide-suicide pact after another takes its toll over time, we need a couple of young, zealous leaders.

_____________________________________

1 This article was written by one author and edited for public consumption by the other. An unabridged version can be found at burkefamilylaw.com.  

2 Section C-2, below, could serve as an Executive Summary.

3 I’ve heard the account of this "experiment" a number of times and have taken liberties in filling in factual gaps that appear in the original article. Judge King was elevated to the Court of Appeal. He is now retired and is the reigning guru of California Family Law. The title of this article was provocative and it was followed by an article written by Justice King for the California Lawyer entitled: "No Justice in Family Court" (November , 1994).

4 The method employed by Justice King was not really mediation as most of us think of it now. The couple would be told that the court employee with whom they were meeting prior to the hearing, would make a recommendation to the court if an agreement was not reached. If, at the end of the session, there was no agreement, the couple was told in advance what the recommendation would be. When custody was mandated, each county was given a choice between "recommending mediation" or "confidential mediation." San Francisco and Ventura are among the "recommending counties;" Santa Barbara and Los Angeles are "confidential counties." The potential for coercion and other due process issues are addressed by, T. Grillo, "The Mediation Alternative: Dangers for Women, 100 Yale Law Journal 1545. Ms. Grillo’s critique is of the San Francisco custody mediation procedure, but she fails to make clear the fact that her complaints are about a mediation process "with teeth," rather than what is generally understood as "mediation."  

5 Those in the State Bar’s CLE Compliance Group One have been reminded recently that the phrase "to represent his [sic] client zealously…’ is not a part of the California Rules of Professional Conduct. Rather, it comes from Canon 7 (Section EC7-1) of the ABA Model Code of Professional Responsibility. The choice of the word "zealous" is peculiar. The history of the Zealots is an interesting one that’s 2000 years old and a matter of academic controversy. For this footnote it’s more than sufficient to say: (a) The first definition of "zealot" provided by the several dictionaries consulted always included the word "fanatic;" (b) The Zealots were fanatic about the occupation of Palestine (especially Jerusalem); (c) They were ready and willing to kill or be killed in defense of their beliefs; (d) One of the reasons their history controversial stems from the fact that their principal historian, Josephus Flavius (a.k.a. Joseph ben Mattathias) was a Zealot himself and wrote from his inside experience. His credibility is questioned by some, because he was a party to a suicide-homicide pact in 66 CE in which he arraigned to be one of the last two to die. Somehow he managed to live and to write history until 95 CE. I wonder if it is this Flavian form of zealousness that attorneys are suppose to emulate.  

6 In Santa Barbara, UCSB Professor (Emeritus) Stewart B. Shapiro has been writing, teaching, and conducting workshops throughout the country on "Reflection in Practice" for the last decade.

7 Getting to Yes: Negotiating Agreement Without Giving In (1991) by Roger Fisher and William Ury (1987) was followed by Fisher’s Getting Together: Building a Relationshipthat Gets to Yes and Getting Ready to Negotiate: The Getting to Yes Workbook (1995, with Danny  Ertel); William Ury has written Getting Past No (1993). Amazon lists a number of other books exploiting the "Getting to Yes" theme, which include: (1) Three Steps to Yes: The Gentle Art of Getting Your Way, (2) Getting to Yes in Fund Raising, (3) Breaking the No Barrier: The Billion Dollar Battle Plan for Getting to Yes, (4) Getting Tough Customers to Yes!, (5) Getting Your Kids to Say No in the ‘90s When You Said Yes in the ‘60s, and (6) His Little Instruction Book for Getting Her to Say Yes…More than Once a Month. The last book has been through two editions and remains in print. It was written by Cinthia [sic] Milner and Robin Sexton and gets a 4½ star rating from Amazon customers.

8 Mosten, Forrest Unbundling Legal Services (ABA: 2000). See also his Complete Guide to Mediation: Cutting Edge Approaches to Family Law Practice (ABA: 1997) 

9 countylawlibrary.com  

10 Tesler, Pauline H. Collaborative Law: Achieving Effective Resolution without Litigation (ABA: 2001).

11 Custody mediation was instituted by statute and in spite of the benefits the court receives from their (exhausting) work, the mediation staff has never received the support they need. In 1990 I attended a conference put on by the Administrative Office of the Courts and heard one of the Santa Barbara judges, after several years on the bench and experience with the court's mediation process, asked, "Which are we, recommending or confidential?"

"Children in the Middle," a much needed educational program for parents going through a divorce took three years of planning and meetings before it went into effect in. To this day there exists a tension between the program which, by necessity, is administered by a not-for-profit corporation established for the sole purpose, and the court concerning administrative support (or the lack thereof).

In contrast, in the early 1980s the use of "support tables" was the subject of controversy throughout the states. This was a time when some of the Superior Court judges' meetings were public. The subject of the use of support schedules was on the agenda once and their use was approved without any discussion.