Innovations in Family Law Practice innovations in Family Law Practice Edited by Kelly Browe Olson and Nancy Ver Steegh © 2008 Association of Family and Conciliation Courts Madison, Wisconsin www.afccnet.org Series Editors: Linda B. Fieldstone and Wendy Bryans Editors: Kelly Browe Olson and Nancy Ver Steegh Design and production: Nola Risse-Connolly 2008 10 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, record- ing, or any information storage or retrieval system, without permission in writing from the publisher. CONTENTS Preface 7 Introduction 9 Chapter 1: The Ineffective Family Lawyer 13 Andrea Kupfer Schneider & Nancy Mills Chapter 2: Collaborative Practice 29 Susan A. Hansen & Gregory M. Hildebrand Chapter 3: Cooperative Negotiation Agreements: Using Contracts 63 to Make a Safe Place for a Difficult Conversation David A. Hoffman Chapter 4: Family Law Self-Help Centers 87 Pamela Cardullo Ortiz Chapter 5: Unbundling Legal Services to Help Divorcing Families 117 Forrest S. Mosten Chapter 6: The Evolution of the Family Court Duty Counsel Program 155 in Ontario Carmelo Runco Contributors 169 Appendices: Chapters 2, 3 and 5 have electronic appendices available online. To access the appendices, go to: http://www.afccnet.org/resources/resources_professionals.asp PREFACE Since 1963, the Association of Family and Conciliation Courts (AFCC) has con- vened a wide range of professionals dedicated to improving the lives of children and families through the resolution of family conflict. AFCC members are bound by their strong commitment to education, innovation and collaboration in order to benefit communities, empower families and promote a healthy future for children. Through educational programs, publications and the Internet, members discuss how best to help families resolve conflict, especially those experiencing separation and divorce. AFCC’s interdisciplinary approach has contributed to it being a leader in the development of initiatives in areas including mediation, custody evaluation, par- enting coordination, and parent education. Above all, AFCC members are inno- vators who are accustomed to sharing their expertise with colleagues. The Innovations Series is designed to enable AFCC members to share practical infor- mation about programs, processes and ideas that are emerging in the practice of family law. Each book in the Innovation Series has been edited, and each chapter written, by thoughtful and experienced practitioners who have given generously of their time in order to contribute. We are deeply honoured to have worked with all of them. We hope that a chapter in this series will spark an idea for a new program in your community or help improve the functioning of an existing program. And, of 7 8 innovations in Family Law Practice course, we hope that you will continue your connection with AFCC by finding ways to share your own innovative ideas with our community through future pub- lications and educational programs. The better our work and the more we learn from one another, the greater our contribution will be to the communities, chil- dren and families we serve. Wendy Bryans, LL.B and Linda Fieldstone, M.Ed. AFCC Innovations Series Project INTRODUCTION The practice of family law and the role of the court system have changed dramati- cally during the last thirty years. In response to this new legal landscape, lawyers and family court professionals have begun to improvise and innovate. This book features a handful of programs and unconventional responses developed by cre- ative and committed practitioners in the United States and Canada. Each chapter highlights a particular practice but when read together, the chapters form an inspiring guide to the development of new legal processes, implementation of new professional roles, promotion of family self-determination, and innovative responses to scarcity of resources. The transformation of the family court system has been fueled, in part, by changing societal values and expectations. As divorce became more common, social scientists studied the impact of divorce on children and concluded that chil- dren fare better when parental conflict levels are low1 and that, absent abuse or high conflict, children benefit from continuing contact with both parents.2 At first blush, these twin goals seemed at odds: how could courts reduce conflict levels while simultaneously encouraging more contact? Although research shows that most parents are eventually able to cooperate for the sake of their children,3 they are often helped by participation in programs such as parenting education and mediation that encourage parents to fashion their own future parenting arrange- ments while also teaching specific techniques for conflict resolution. As a result of this research, courts moved away from designating a “winning” or “losing” parent and, when possible, promoted more cooperative parenting styles, sometimes including shared custody. At the time of divorce, parents were encouraged to restructure family relationships rather than making a “clean break.” In fact, the goals of divorce were themselves redefined. As one commentator wrote, the new “successful” divorce requires parents “to work through their anger, 9 10 innovations in Family Law Practice disappointment, and loss in a timely manner and terminate their spousal relation- ship with each other (legally and emotionally), while at the same time retaining or rebuilding their parental alliance with and commitment to their children.”4 Goals such as these were incompatible with the traditional adversarial approach to divorce that was often more focused on assessing blame than on reducing con- flict and fortifying relationships. In fact, in one study 71 percent of divorcing par- ents reported that use of the court process escalated distrust and conflict “to a fur- ther extreme.”5 In another study, 50 to 70 percent of litigants experienced the legal system as “impersonal, intimidating, and intrusive.”6 As alternative divorce processes became available, families often preferred them. For example, in one study, 77 percent of mediating couples expressed sat- isfaction with the mediation process while only 40 percent of couples reported sat- isfaction with the adversarial divorce process.7 Similarly in another study, 85 per- cent of mediating couples believed the process was fair while only 20 to 30 per- cent of couples using a traditional court process viewed it as fair.8 In this context lawyers began to question the place of zealous advocacy and the use of “courtroom combat” tactics in family cases. Some lawyers concluded that interest-based problem solving approaches to divorce held more promise for fami- lies.9 In their chapter on “The Ineffective Family Lawyer,” Andrea Schneider and Nancy Mills present empirical data concerning the effectiveness of such negotiation styles and the extent to which family lawyers have adopted (or not adopted) these techniques in practice. Some family law attorneys embraced interest-based problem solving approach- es so fully that they developed new models of practice based on them. In their chapter on “Collaborative Practice,” Susan A. Hansen and Gregory M. Hildebrand explain the collaboration process and provide valuable tips for practice. While supporting the goals of the collaborative model, David A. Hoffman advocates instead for use of “Collaborative Negotiation Agreements.” As divorce became more expensive and some parents became disillusioned with the traditional adversarial process, courts reported a sharp increase in the number of unrepresented parties. In fact, an Oregon study found that at least one party was unrepresented in 80 percent of family cases.10 At the same time, family courts experienced increasing caseloads in an environment of declining resources.11 In light of these trends, Pamela Cardullo Ortiz presents a detailed look at Maryland’s pioneering family law self help program aimed at assisting pro se par- Introduction 11 ties. Some divorcing couples seek some, but not all, of the services traditionally provided by lawyers. In the chapter on “Unbundling Legal Services to Help Divorcing Families,” Forrest Mosten explores the benefits of tailoring the lawyer- client relationship to meet the specific desires and needs of clients. Finally, Carmelo Runco provides an insider’s view of the Canadian Duty Counsel program that combines various attorney roles and legal services under one roof. He speculates about the future of delivery of legal services and the need for closer ties to social service providers. Special thanks go to these generous authors for taking time away from their busy practices and professions to share their substantial creativity and expertise. We hope that this book will spark new ideas for your own “innovations” in the practice of family law. Kelly Browe Olson Nancy Ver Steegh References 1. See Joan B. Kelly and Robert E. Emery, Children’s Adjustment Following Divorce: Risk and Resilience Perspectives, 52(4) FAM. REL. 352 (2003); Joan B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce, A Decade Review of Research, 39(8) J. AM. ACAD. CHILD ADOLESCENT PSYCHIATRY 963 (2000). 2. See Joan B. Kelly & Michael Lamb, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 38 FAM. & CONCILIATION CTS. REV. 297, 300 (2000). 3. Carla B. Garrity & Mitchell A. Baris, Caught in the Middle 27 (1994) (25 percent of parents ease