boston—Copley Square is a study in contrasts. At the south end sits the stately Boston Public Library, founded in 1848 and built “for the people and dedicated to the advancement of learning.” Directly across the park is the historic Trinity Church, under restoration during my recent visit. Towering over the church is the John Hancock building, a glass box whose opaque windows and shape (a large dollar bill) suggest that it was built by capital, for the advancement of capital. Between these extremes are hotels, one of which, the Westin, was hosting the fifth annual International Academy of Collaborative Professionals (iacp) conference. My wife was attending as a collaborative lawyer; I was in attendance as a somewhat distracted observer.
The conference began with the United States election campaign in its stretch drive, and the day before Boston’s beloved Red Sox took the field against the St. Louis Cardinals in the World Series. Adversarial talk was everywhere. In Copley Square “Reverse the Curse”—it had been eighty-six years since the Red Sox had won it all—duked it out with “Hawkish Bush versus The New England Dove.”
Directing his venom at St. Louis, one pedestrian combined the two issues: “St. Louis is nothing but a gateway to the fucking Bible belt, a Bush town.” To him, the BoSox, with their shaggy hair, ill-fitting uniforms, and errors in the field, were quintessential Democrats. The Cardinals, clean-shaven, smooth-swinging, quiet assassins, were obvious Republicans.
Inside the conference hall, the talk was less colourful but no less ardent. Against the backdrop of President Bush’s faith-based family values initiatives, hundreds of “collaborative professionals” from across North America (and a few from overseas) had gathered to talk about divorce. If Bush offers no exit strategies for war in Iraq, and few for distressed couples needing sanctuary from each other, the iacp delegates focused squarely on making divorce amicable and finding dignified solutions to failed marriages. Regarding the law, one delegate told me, “The adversarial system was enshrined long before divorce was possible, to say nothing of legal. Today, divorcing couples are simply being subjected to the wrong system.”
The keynote speech was delivered by Professor Robert Mnookin, author of Beyond Winning: Negotiating to Create Value in Deals and Disputes and one of the world’s leading experts on dispute-settlement mechanisms.
I doubt Professor Mnookin would have succeeded on the street—where the approach to conflict resolution is more along the lines of “Pahk the cah, ya moron!” and, middle-digit-raised, “So, sue me!”—but, inside, the delegates lapped up the gospel of “interest-based” (as opposed to “rights-based”) settlement procedures, in which divorcing couples and their lawyers pledge in writing to resolve differences without going to court. In fact, one of the attendees, Ross Foote, a district court judge from Alexandria, Louisiana, who left the bench last summer after nearly fourteen years, was there pursuing a dream: to shut down family courts everywhere. Echoing the sentiment, David Carter, a lawyer from Medicine Hat, Alberta, said: “Collaborative family law is what’s done in my town. It’s amazing.”
Simply put, collaborative family practice involves two lawyers and their divorcing clients sitting down to hammer out an agreement, and to continue meeting (often assisted by family therapists and accountants) until a resolution is reached. To Stu Webb, a Buddhist from Minneapolis and founder of “the movement,” the approach is “taking off because courts are the last places most divorcing couples and their children should end up. Sure, we all have a revenge instinct. Look at how George Bush is using his. But is following it in anyone’s interest? ”
Judging by year-to-year growth, collaborative law appears to be a gathering storm. With 460 delegates, the Boston conference had nearly twice as many attendees as last year’s affair in Vancouver.
And to those believing that this is some coastal liberal conspiracy, it must be noted that Texas, The Lone Star State, boasts over 1,000 fully trained collaborative lawyers and, in 2001, the state enacted a statute naming collaborative law a legitimate alternative to litigation. At the Boston conference, the Collaborative Law Association of Alberta ordered 12,000 promotional brochures.
According to lawyer Brad Hunter, a dedicated collaborative-law trainer from Regina, Saskatchewan, many family lawyers are opting out of litigating cases because of years of unsatisfying results, unhappy clients, and burnout from competitive courtroom proceedings. But Julie Macfarlane, a law professor at the University of Windsor, in Ontario, and one of the conference presenters, offered a cautionary note: “The notion of the autonomous individual is deeply ingrained in our culture and collaborative practice must deal with this fact.”
Indeed, in cases where individuals feel their rights have been trampled, when emotions are raw, trust absent, and the taste of revenge sweet, traditional hard-nosed litigation might be the cleanest approach.
If cheerleader Ross Foote is busy telling one and all (including judges) that divorce is about “families in transition and shouldn’t be litigated in courts,” Macfarlane is more measured. Just the same, after three years of studying collaborative practice, and closely following sixteen cases in particular, she calls it “the most significant development in family law in decades” and is sanguine about its future.
While yoga was on offer and some of the conference workshops had New Age, crystal-ball-gazing titles, one essential principle underpins the growth of “the movement”: in divorce and child-custody matters, a future-oriented, interest- based approach makes sense; a backward-looking, rights-based approach does not.
Collaborative law’s founder, Stu Webb, and its proselytizer, Ross Foote, hail from Minnesota and Louisiana, respectively. Both argued that with Bush trying to reunite families along faith-based lines, the mainstream always looking askance at new-fangled experiments, and, in these times, promoters of non-adversarial peacekeeping open to charges of being woolly headed idealists, the movement must remain grounded.
Next year, the conference is scheduled for Atlanta, Georgia, the heartland of family values. Could be interesting.