Twenty Years and Counting

CFLCW began it first full year of operation in 2001, twenty years ago. Diane Diel, JD was one of the founding members of the Council and its Chair in 2001. Diane recently agreed to a online interview about her experiences with not only CFLCW but her activity on the international level as a Past President of the IACP.

Excerpts from this interviewed appear in the first edition of the CFLCW Bulletin, a quarterly newsletter that debuted on April 9, 2021. Here is the complete interview.

“Clients do not wish to be the case that becomes the source of a decision from the Supreme Court, or that changes the course of legal jurisprudence. They do not want to have an interesting case. They want to have a resolution”

-Diane Diel, JD

Editor -What was the motivation behind the effort to create this organization?

Diane: The creation of the organization was driven by the passion that so many of us had to change the way divorce law was practiced.  We wanted to make sure that collaborative practice, as a practice tool - a practice modality - was available to lawyers, mental health professionals, and financial specialists. In doing so, we unwittingly took on an awful lot.
We wanted to make sure that membership was wide open. This was no “by invitation only” type practice group; anyone who took training could join, and we ambitiously thought we could travel around the state and bring in practitioners everywhere. In hindsight, we might have decided to start smaller – maybe just Milwaukee or Southeastern Wisconsin - but we chose to start big and start with the entire state. I do not know that we have ever really realized the entire state, but we certainly had those ambitions.

What was it about areas outside of Milwaukee or Madison that were challenging?

Whenever you have a smaller group of practitioners who routinely work together, the practitioners worry about upsetting their established relationships.   Collaborative Practice turned out to be more challenging than for those of us who practice in a pond that has many, many fish such as Milwaukee or Madison. In those larger communities, you see different lawyers and other professionals every day, and learning a common settlement-based process was so appealing.

Wisconsin is not the same everywhere   – I don’t know if Green Bay is the same as La Crosse as Fond du Lac - but the reasons that seemed to come out were “we are always collaborative.” Certainly if there are only a few lawyers who routinely have cases together, there is less challenge in understanding what will resolve the case and what will not resolve the case.

What was the reaction of the non-family legal community or the judiciary to the idea of a collaborative process?

The non-family law community was intrigued. In the Milwaukee area, a good number of the very first cases involved lawyers from other fields of practice. I can remember both having and hearing anecdotally about early cases that involved lawyers who understood that from their legal training and their litigation cases, the court was not the way to solve their family’s  problems at separation and divorce.

The legal community broadly was accepting of the notion that family law is different and that it required a different set of assumptions and processes for resolution in order to make any sense at all.

The judiciary was more mixed, and even today, the reaction of the judiciary tends to be a little bit mixed. I recently had a judge tell me “of course you lawyers like collaborative process, you take off out of those cases when they get difficult.”

I do not know what informed this particular opinion. And I was happy enough to be done with the zoom court hearing before that judge that day and try to come back to the topic another day.   However, I would say judges have become accepting and see the value, certainly that is true in the courts where I tend to practice.

The law schools obviously heard about collaborative. What was their reaction?

I would say that it took us probably three, four, five years to make much of an inroad into the law schools. By the time that I was president of IACP in 2010, there were lawyers teaching entire courses in various law schools, so that was like 10 more years after CFLCW was started.

At some point, many CFLCW members started presenting to family law classes at the law schools about Collaborative Practice.  Until then law schools were teaching mostly standard litigation practice, which was not very helpful for family law students.  But, those small in-roads were attempted and made early on.

Frankly, it took connections, and it took working those connections. When we knew the Dean of the law school, for example, it was easier to get a program. If we knew a law school professor teaching family law, we could bring the approach into the classrooms and introduce it.  Today, I have a friend who has taught a course on The Ethics of Collaborative Practice several semesters at Harvard Law.

Why do you think this organization was so successful at that in what was essentially a brand-new industry?

There was colossal energy and enthusiasm for establishing for a process that was going to address what we knew:  litigation is bad for families.

Litigation burnout is real. Bad experiences are real. The lawyers, mental health professionals and financial professionals who came together in the early organizational meetings were energized by the notion that here was a different way, a better way.

It was an energy that surpassed any other energy or enthusiasm for any other thing I can think of in my career. It was energy to go forward, find a way to solve family disputes in a respectful way that did not dishonor the integrity of the family unit or the way that the children would be parented.  It was so necessary.  The more we worked to change family law practice, the more energy we found.

Obviously, without the details, tell me about your first collaborative case - what worked and what did not.

I will talk about one of the very early ones that that I had. The people were very in tune with the notion of Collaborative Practice, coming from social work agency type backgrounds. They were professional and they had processed the end of their marriage and wanted specifically to find lawyers who would not take the decisions away from them.

And so we started a collaborative case.  I believe that the other lawyer and I spent probably easily five times as much time talking about the case as we could ever have billed our clients...…just to make sure that we synchronized our work and that we were being respectful of what our clients wanted.

Even though we were secretly horribly inefficient, we were presenting an aspect of efficiency and really learning how to talk to our clients in a way that was very, very different from anything we had ever done before.

The first time in one of those meetings that we had to start talking about spousal support as a group, I felt like the words were choking me. It was very difficult to bring some of these concepts that previously you could rattle off in your argument in the positional way to the other lawyer and then that lawyer would go to their client and make the case, and you would have a settlement.

In addition, when you have the people in front of you and they are questioning the concepts, feeling stressed working numbers that first time, and having hard conversations, I recall that it felt very risky and like a danger zone. And, of course, it wasn't.  The clients got it and found a way to solve it.

Another early case…. I can remember waiting for the first four-way to start. I had an office that had a little park area adjacent to the parking lot, with a picnic table. The other lawyer was in my office and we were waiting for the clients to come in as they sat at the picnic table.  They just sat there and sat there.

Finally, the other lawyer and I decided to send my assistant out to talk to the couple, and they said “give us some time.”

They eventually came into the office and said, “You know what, we've decided to try to reconcile.” And so we thought we would never have many cases in the early days because our initial clients were reconciling at really an extraordinary rate. You know, they were the people that were willing to have those difficult conversations and finding so much more common ground because of the introduction to Collaborative Practice rather than to the positional – “take half of the bank account now”—type of representation.

Fast-forwarding to today, what do you think has been the most consequential change in the process over time from the theoretical idea [of collaborative].

I think that I think that one of the major developments even internationally is that people understand now in a different way that there are many ways to build a collaborative process.

There is better understanding that one particular formula or recipe is not inherently superior to another, or that imposing the will of the team on the way the clients conduct the cases may not necessarily be a good approach.

I happened to be in touch with an IACP friend from the East Coast the other day. This colleague was talking about all of the various assumptions that used to encumber collaborative practice, such as you had to have a neutral coach in some parts of the world; or that you had to have two separate coaches in other areas. Some of those things were clear directions of different training teams that went around the country and help feed the growth of the movement, and they had very distinctive ideas about what their process should be.

I think that lawyers maybe uniquely as a group, have some need for an orthodoxy about how they do things. And so people would say, yes, that's our process. That's our system. We're going to adopt that. And we are going to find it to be inherently better than any other thing and learn it and work with it exclusively.  Now, so many years in, we have enough experience to understand that some variations in process style are fine.

When IACP adapted its definition of collaborative practice, the only core essential for a team is that there must be two lawyers and the rest of the process should be based on family's needs and the comfort levels of the practitioners in the practice group.

I think the openness to other ways of achieving the same result is the biggest development.

I would also say watch the future. In Brazil, which has just lately come online to IACP, in their traditional divorce process, a single lawyer handles most of the cases. So, under their rules of practice, an attorney can represent both parties and so Brazil is finding a struggle with the two-lawyer definition.

That Brazilian process looks to me like interdisciplinary team mediation.

Apparently, there is a core difference of the notion of representation. That is not the notion in Wisconsin; you cannot represent the opposing sides of the same lawsuit in Wisconsin. That's clearly an ethical principle. It is important to understand.  The idea of a single lawyer for Collaborative Practice violates the definition of Collaborative Practice, and yet, I think we will have to watch and wait and see.

How has your personal practice different now than it was 10, or 15 years ago in terms of collaborative cases?

It is not much different.
I am not one of the people that dropped out of litigation altogether, although recently I’m considering doing just that. I am certainly cutting back on litigation now, and the key difference for me is that my practice includes much more mediation at this point than it does litigation.

My initial consultations with potential clients are significantly different because I want to entertain the possibility of both collaborative and mediation with clients. That means I must be careful to talk process only in those initial phone calls so that mediation remains a viable option for a couple that seems able to do that.  So that might be the biggest difference.

Mediation is not regulated like litigation, or even as much as collaborative if you consider collaborative regulated. Is there a role for mediation in an organization like CFLCW?

Yes.  However, it depends on what you mean by “role.” For example, I recently talked with a person from another state and a member of a Collaborative Practice group that has a whole mediation subsection that mediates disputes between practitioners in ongoing cases. I do not think that CFLCW ever has, or should ever have, such a mediation process.

Mediation is another important consensual dispute resolution process supported by many of the same conceptual notions and trainings and learnings around interest-based negotiation. We learned from mediators as early collaborators. We learned more about how to dig out client's interests and how to focus on their interests.

Early successful CFLCW programs were brought to us by mediators who had a lot to say about focusing and finding a way to avoid the contention of divorce dispute.

So, I think that CFLCW in many ways has always supported mediation.  Learning about one process is helpful for practicing the other.  I certainly think these are matching interests and working together is helpful.

Practice groups, including some neighboring states, require as part of the membership that the practitioners complete mediation training. Wisconsin does not do that. Do you think it should?

You referenced earlier the idea of regulation of Collaborative Practice. Wisconsin has not yet adopted the IACP’s Minimum Ethical Standards or its Practitioner Standards.  It is a good time to consider doing that.

The IACP Minimum Standards for Collaborative Practitioners require “advanced mediation training” in order to promote yourself as meeting the IACP Standards for lawyers, Mental Health Professionals and Financial Practitioners.

Collaborative Practice is a powerful process with the potential to do so many amazing things for separating families.  It is so important for an organization that supports such a process supports it so that it can be incredibly successful.  And, the most professional and appropriate way to build the opportunities for success in the Collaborative Process is to ensure that its practitioners are well trained and experienced.  Mediation training helps assure successful processes.

I know that CFLCW does not police - cannot police - professionalism or regulate practice. We do it all by our definition of what is Collaborative Practice. It is about a participation agreement, and it has a professional team that leaves the process if anybody asks for a decision to be made by a judge or an arbitrator. That is all we have for regulation in Wisconsin.

I am not proposing regulation or enforcement by the organization.  I believe that setting ethical and practitioner standards and asking that members adhere to these standards is a way of articulating that the organization is about making Collaborative Practice as strong as it can be for the public.  That kind of organization shows the public that it cares about the quality of service to the public.

I really went far away from your original question, but Standards and Ethics matter to me.  It is important that we hold ourselves out as providing the education and the quality to assure that our members deliver the highest level of services.

As someone who believes in collaborative and believes in other alternatives to litigation, do you think that the way lawyers are trained and educated be changed?

I think that it is changing, and I think that change has been driven from the consumer level.  I will go even further and say that it is time to change not just legal but also judicial education.  And that lawyers and judges should work together to change processes to support all settlement processes and better court efficiency.

I believe the pandemic has changed people so that there is maybe a clearer drive on the part of many people towards resolution. Yes, there may be some people coming out of pandemic who are more contentious than ever, but I think that the majority of people coming forward are presenting to us as, “I want to find an efficient process…one that's respectful and that doesn't damage everything.”

Clients do not wish to be the case that becomes the source of a decision from the Supreme Court, or that changes the course of legal jurisprudence.

They do not want to have an interesting case. They want to have a resolution.

People today are often alert to what the law looks like. They are “50-50 aware” on almost everything, including child custody, placement, property and even spousal support. I talk to many people who articulate that they know that that the children’s time will be shared, income will be shared, and property will be divided.  What people are very much looking for in the market is a way to economize and keep the money for themselves they might have spent on fees.

So the law schools can start the education process for this new world.  But, I think that organizations like CFLCW and IACP are the best place for the kind of practical, skills based trainings that professionals need to make a shift to that practical world.  Collaborative should be a product that is more in demand than ever

If you encountered a brand-new family law graduate from the law school this afternoon, and she said to you, “what do you think I should do?” What would you tell her?

Well, other than staying really are you sure? [laughter]. I would talk about understanding consensual dispute resolution. I would talk about getting collaborative training. I would talk about finding a niche that allows what I think most of us who want to be in family law want, which is to help children and families. And the reality of that [help] in a litigation model is not there, so find the place that most realizes your personal values.  The field of family law is changing dramatically.  There are so many self-represented people today.  The challenge that young lawyer has is to find a way to be relevant to families in transition and to bring value to clients.

A member of CFLCW said to me that one of the great things to emerge from collaborative was that financial neutrals coaches and child specialists that are now part of the litigation work in many ways that they were not before.

That is exactly right.  I think the collaborative process has added a lot to the litigation, has added a lot to the mediation world, and I think it will continue to innovate. What will those innovations look like? I don' know because we have brought such a significant amount of change so rapidly starting 20 years ago.

Any final thoughts about the past twenty years of CFLCW?

I wish we had had the wisdom to avoid - at the international level - all of the conversation about models of collaborative practice.

In Wisconsin, we early on worked with just the two-coach “model” and believed it was a superior form of practice and that it was potentially the best way to do it.  And it was wonderful, and we worked to make it efficient, and it helped many people.

I wish that early on we had the good sense to adopt and embrace a very simple definition - as it exists now for IACP – and that instead of debating the approaches, had devoted time instead to figuring out how to match a process to a family.

I think that IACP has moved well beyond that now. I think CFLCW does a nice job now offering openness to all approaches. And I think that the future will be a success. And I guess sometimes when you are just beginning for better or worse, you are not given the gift of foresight. I am grateful for the chance, still, to have been a part of such an exciting time.

I find it hard to believe 20 years have passed. How can that possibly be?