A Tale of Two Cities: Starting Your Own Collaborative Law Group
By Jennifer Jackson, JD and Timothy Martin, JD (2003, Collaborative Review, Volume 2, Issue 1)
So you’d like to start your own Collaborative Law practice group? Collaborative lawyers in San Mateo and San Francisco have recently started practice groups in their respective counties, and have been willing to share their growing pains with the Quarterly. As they see it, the process looks a bit like this (San Mateo comments in italics):
Getting the Band Back Together: Organize a Core Group
Before you make any public pronouncements or issue invitations to join your group, form a small (six or seven people) core group of like-minded individuals to develop the principles, rules and documents for your practice group as a whole. The reasons for this are: a) it is easier to make decisions in a smaller group and b) the core group can present the rules and requirements of your practice group to the larger group as a fait accompli, rather than getting into a lot of wrangling en banc (which lawyers are naturally good at). Treat the development of your practice group like you would a case that you don’t want to end up on the "back burner". Schedule a series of regular meetings, with an agenda for each meeting. Someone should be in charge of reminding everyone else about each meeting, and someone should be in charge of recording the decisions you’ve made.
On reflection, the core group in San Mateo simply got the ball rolling in terms of forming the group. From that point on, the group as a whole was divided into sections focused on a given topic, such as marketing or forms.
Our "forms" subset will develop a proposed form, such as the "Agreement to Collaborate" and distribute it to all members prior to a monthly meeting. The group as a whole then approves, critiques, or rejects the proposed form. Once it is word-smithed to the majority’s satisfaction, the form is adopted by the group and all members are expected to use it.
Adopt a Mission Statement
Developing your mission statement will help your core group to organize the structure of the practice group around shared goals. Here’s the Mission Statement from the San Mateo Group, which the San Francisco Group has stolen for itself:
The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interests of parties and their families in Family Law matters to commit themselves to a process whereby they resolve their differences with minimal conflict and no litigation. The Collaborative Law process is designed to empower the clients to fashion agreements that address their unique concerns and produce results more creative than, and superior to, those experienced by clients in the adversarial process The Collaborative Law process relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well-being of the parties and their children.
This Collaborative Law Group aims to provide the substantive and procedural training to each of its members so that they may offer the Collaborative Law Process to their clients as an option for resolving their Family Law matters. In addition this Collaborative Law Group is committed to providing a legal community that will carry out the goals of Collaborative Law and provide a network of attorneys who are qualified to practice Collaborative Law.
Decide Whether Your Group Will be Private or Open
The first decision your core group should make is: will your group be open to anyone who wants to join? Or will membership be by invitation only to a limited number of local attorneys? There are pros and cons to each approach. Those who favor the closed group approach feel that they need to be able to vouch for every other member of the group, and that the closed group enables a more unified approach that delivers the Collaborative Law product as advertised. The downside to this is that the group usually ends up being quite small, resulting in training that is more expensive and difficult to arrange; further the commitment level sometimes diminishes when a person is invited to join rather than takes the initiative himself or herself to join a group. Those who favor the open group believe that the strict requirements for continuing membership in terms of trainings and case conferencing can’t help but improve the practice of family law in their counties. The membership tends to be larger and made up of people who have come to the group of their own accord, rather than "by invitation only" (However, the open groups are having their own share of commitment problems). It is easier and less expensive to arrange training for a larger group. The downside to this approach is that quality control is more difficult, and there is a greater likelihood that the collaborative model might be corrupted. Both the San Francisco and the San Mateo county Collaborative Law practice groups have chosen to be open groups.
The two key documents you must have in place before your larger group forms are the Collaborative Stipulation/Agreement and the Principles and Guidelines. Don’t reinvent the wheel. You can find model documents at the AICP webpage ( Even so, your core group should review the models and revise them to suit your own styles. The process of developing your own set of documents will help you focus on what Collaborative Law is all about. Keep in mind, however, that Collaborative Law is a specific model of practice (See Chip Rose’s article *), and that you should not change the substance of the documents and still call what you are doing Collaborative Law. The key document is the Collaborative Stipulation or Contract/Agreement, which binds clients and attorneys to staying out of court. Without this provision, you may be practicing cooperatively, which is great, but you are not doing Collaborative Law. Both the San Francisco and the San Mateo groups have chosen to use the Collaborative Agreement, but allow for the use of the stipulation when the situation might call for it (such as clients who need the security of an extra-binding document, or where a petition has already been filed and a court document isn’t a novelty to your clients.)
Will Your Group Align With the Bar Association?
Will you be an adjunct of your local bar association or will you be independent? The advantages to being a part of your local bar association are that they will collect your dues, send out your notices, arrange for places for you to meet, arrange for MCLE credit, and so forth. The disadvantage
is that many bar associations collect fees for the bar association generally, will apply your fees to the "pot", and will not allow you to disburse your own fees as you see fit. Some counties will impose their own standards on the group, and every training, meeting, and notice will have to be submitted and approved in advance. Neither the San Francisco nor the San Mateo groups is associated with local bar associations, preferring to have more administrative and internal control. However, the Sonoma Collaborative Law practice group is an arm of their local bar association, which is working very well for their group.
How Will Your Group Coordinate With the Court?
Why get the Court involved? The idea is to keep people/cases out of court. Nonetheless, the San Francisco group felt it was important to let our judges know that we were working on a model that keeps people out of court. But be sure that the Court’s role does not include third party decision-making.
Find out what else you can do for the Court, and what the Court can do for you (which, in the case of many groups, is nothing!) The San Francisco core group met with the presiding family law judge before their first organizational meeting, with encouraging results. She was and remains wildly supportive about the concept; she immediately designated her own department as the Collaborative Law Department such that all collaborative stipulations and judgments will come directly to her. She has given the group the use of her courtroom for its regular monthly meetings. She has written an endorsement of the concept for use in the groups’ materials and on its webpage. She and one of the other family law commissioners attended the first organizational meeting of the group, giving Collaborative Law the enthusiastic imprimatur of the court. In return, the group is sponsoring a low-fee collaborative panel, which will be one way its members who are new to Collaborative Law can get experience, help folks who would otherwise be pro-pers, and thereby assist the Court with its pro-per litigant load.
What are Your Requirements for Membership?
Distinguish between requirements for membership and requirements for continuing membership. Will you have requirements that your members must meet before they are included in the group roster? Or will you give new members a grace period in which to fulfill their requirements? Does your group believe philosophically that mediation training is a prerequisite or will strictly collaborative law training suffice? Will you limit your group to members of your own county? Are you limiting your membership to attorneys? Bear in mind, a lot of MFCC’s/LCSW’s do mediation. Further the "Collaborative Divorce" (as distinguished from the "Collaborative Law" model we are addressing in this article) model uses many professionals. Because this particular model has its own unique structure, developing a "Collaborative Divorce" group will is addressed in a separate article (*). Unless you are connected with your local Bar Association, you will need to set a dues structure for printing notices, maintaining a webpage, mailings and the like.
San Francisco has chosen to view each membership as probationary and renewable each year predicated on whether or not the member has met the requirements for the year. The preliminary requirement is one intensive mediation course taken within the past ten years or within nine months of the member’s joining the group. The annual requirements for continuing membership are:
Purging Your Membership
This is the most difficult of all decisions, one that gets postponed and ignored even when the standards are in place. The easiest method is to enforce the criteria for continuing membership. Then the group’s risk is limited to one year of an offensive member if the membership generally is limited to one year. There will be members of your group who don’t make the cut each year, and if they don’t, you must be firm or the group will fall apart. So be sure the membership agreement specifies that this is the case.
The more difficult situation will be when members are hard to collaborate with, don’t want to practice the model, or just don’t know how. This will wreak havoc in your group, and will damage the public perception of Collaborative law, not to mention making your own lives miserable. So what do you do? The San Francisco group has set up a panel of mentors who have done at least five collaborative cases and who have had formal collaborative law training. These panelists will be available at any attorney’s request to sit in on a collaborative law meeting and to debrief the lawyers afterward. The mission of the panel is to provide guidance, not to sit in judgment. However, if more than three complaints are lodged against the same lawyer, the member will be reviewed and the group has the ability to vote the member out. The procedures for a private group should be very well-defined, as it is probably more difficult to "purge" a member who has been specifically invited to join. Most groups’ experience with this has been that members who are unwilling to devote the necessary time for the training or to follow the model get bored with it and drop out of sight. It is still necessary to define procedures and follow them.
The San Mateo group foresaw that a major problem would be discharging members who failed or refused to conform to their group rules, e.g. regarding training or forms. Members are all lawyers, familiar with and wedded to due process; to avoid the problem, our membership terms are for twelve months, running from December 31 of one year through December 31 of the following year. The group elects members for the following year as part of its December meeting agenda. Our roster inserts for our brochure are headed by "Members for the year XXXX". Each Membership Agreement carries with it a term that a member will not hold him/herself out as a member for any year after the term of membership unless s/he is actually elected as a member for that year.
Training Your Members: How Do You Implement Your Mission Statement?
Have a plan in place before your first organizational meeting for mandatory initial training for the group as a whole, perhaps a facilitator for the first organizational meeting. There are at least three trainers that we know about, and they will go just about anywhere to get your group started. The Collaborative Divorce Group offers biannual trainings for the team approach; Pauline Tesler and Stu Webb offer training in the Collaborative Law model at these trainings. Stu will also come out to speak to your group and to provide training in a variety of areas, often with Pauline. Chip Rose has put together a series of four trainings to take groups from their formative stage through advanced role-playing of all aspects of collaborative law from the first meeting, emergency situations, de-briefing with the other lawyer, preparing your client, etc.
What role will your group play in training your members? How often will you meet? What will be the agenda for your meetings? Will you sponsor your own ongoing trainings after the initial series (with someone like Stu, Pauline or Chip).
The San Francisco group will have at least nine meetings a year in the courthouse for the hour or hour and a half immediately preceding the family law section meetings. The first half of the meeting will be devoted to case-conferencing one case with the attorneys involved. The second half of the meeting will be an open discussion. The core group will rotate leadership of each meeting for the first year, so that a different person will lead each meeting, choose the discussion topics, and choose the case for case-conferencing. They have not selected their initial training program as yet.
The San Mateo group is about to have its third of Chip Rose’s trainings, which are going very well. The sites and timing of the trainings are very important. We’ve been using a room with a private club, with lots of windows. A lunch and snacks are included in the cost. We use Fridays, from 9:00 a.m. to 4:30 .m., so that participants can get free of the office completely, and switch their frame of mind away from the "lawyer-as-warrior" mind set.
Getting Started: The First Organizational Meeting
When your core group has made all of the above decisions about the group, it is time to throw it open to the public or to invite the rest of your members to join. If you are starting a private group, this decision has some interesting aspects. How big will your group be? Will you have an absolute cap? An absolute minimum? Will you be inviting members because of their reputations in the community, their ability to attract cases and their ability to add stature and respect to the group? Or will they be chosen simply because they have a proven record of cooperative lawyering? Or will you allow lawyers to self-select? Sometimes, the formation of the group can be the opportunity a litigator is looking for to change the style of his/her practice from litigation and competitive negotiation to collaboration with its core of cooperative negotiation. Moreover, bear in mind it takes two (lawyers) to collaborate. You need a good-sized group from which the public can select.
Ideally it would be some combination, but there will be some folks who would add immeasurably to the group but might be relatively unknown, and some prominent folks who won’t have the energy to keep up with the training or won’t have the commitment to the model that you will need to succeed as a practice group. Be sure you know what your criteria is, so that you don’t wind up trying to herd goats uphill to get anything done in your group. For the open group, it is a matter of getting the word out.
The San Francisco group arranged the meeting time and place with the judges, and then put a paragraph in the section newsletter announcing the meeting. Since several members of the core group are in the same office, their staff faxed an announcement (which we have published for your review) to every member of the Family Law section the week before the meeting. Approximately 25 people attended the first meeting, and another ten or so lawyers have committed to join who could not make the first meeting.
Getting the Word Out to the Public
The question we hear the most from wannabe collaborative lawyers is: "where do the cases come from?" This of course is a topic for another discussion, but is relevant to the commitment of your practice group to advertising- both financially and in terms of personal time and effort. How do you get the word out to the public? Generally, public awareness of Collaborative Law is growing through published books newspaper articles being written about some of our members, the dissemination of this journal, the inclusion of collaborative law in general ADR and family law seminars, radio shows, and law review articles. Specifically, groups have several options. The cheapest and easiest is if one of your members is Internet literate. A nice looking website, well-registered and well-published with links to other family law pages and resources is not expensive to maintain. The website should include the collaborative documents for downloading, articles for people to read, a list of your members with whatever blurbs they would like to include, and other resources for the visitor to your site. Most groups have designed and printed their own brochures, which set forth a description of the model, the principles and guidelines, the advantages of the model over other ways to proceed, and a list of members. These brochures can be handed out to clients (or two of them: one to convince their soon-to-be-former-beloveds of the merits of the model), mailed in bulk to schools, churches, libraries, and therapists.
There are also collaborative groups forming within collaborative groups whose members make substantial financial commitments to marketing. An example of this recent "ad group" trend is the No Court Divorce group (Nocourtdivorce.com) in Santa Clara county. This is a small closed group within the larger Santa Clara Collaborative Law community who have pooled their resources to do intensive marketing such as an ad in the telephone directory, newspaper ads, a website, and so forth. A collaborative group in Los Angeles has hired a public relations expert to promote its group.
Frankly, getting a group started and then maintaining it takes a lot of leadership and effort, but is incredibly rewarding. You will be the cutting edge; you will be the leadership who is evolving the practice in your area. But you can’t do it alone. You will need a small, dedicated core of people whether your group is open or closed to keep the ball rolling, so choose wisely!