Overview of the FRSC model
The FRSC model is focused on the primacy of the parents' voices. It supports their effort to guide themselves and their children through the disruption of divorce or separation toward a future carved out of a series of assisted conversations. The conversations take place with members of a team that includes the parents, their attorneys (if any), a mediator, a Family Consultant who is a mental health professional, a Team Coordinator, and sometimes an attorney for the children.
FRSC is based in greater informality than we expect in the traditional court. The informality includes "conferences" with the Judge rather than hearings, relaxation of the Rules of Evidence, and flexible interaction of a collaborative interdisciplinary team.
There are no trials in FRSC, no motions, no pre-trial conferences. Instead, there are team meetings and Court Conferences. The team is focused on making sure that the needs of each family member are addressed so that the family can transition from one household to two with each person getting what they need to the greatest extent possible. FRSC is designed to help the parents achieve their divorce or separation without becoming enemies and optimally with an improvement in their communication skills. The whole team is responsible together for maintaining that emphasis. For us as attorneys, the shift at the outset from a focus on the rights of the individual client to the needs of everyone in the family forces us to examine some of our deepest professional assumptions.
FRSC and legal ethics
We are steeped in the gladiator model of law practice. We are trained in a system in which we advocate for individual rights on the poles of the spectrum that separates Plaintiff from Defendant. We count on the Judge to determine which of our polarized views is legally correct or which solution achieves fairness for the parties.
In family law that model (though sometimes necessary) often works to the disadvantage of both parents and the children. This is so because very often both parents (even angry parents) wish they could work together in the ongoing project of parenting their children into adulthood. Often that goal is superseded by the goal of vindicating individual rights to the detriment of the other parent in a perceived zero-sum game.
If parents glide automatically into the gladiator system at the beginning of their divorce, the traditional system can derail their wish for a collaborative future. This happens when the early stages of the process are clad in words and actions of competition, adversarial positions and sometimes downright hostility. And it happens even though statistics show that most divorcing parents reach an agreement by the end of the process. It is the process itself that can poison the hope for that collaborative future.
How can an attorney shed the cloak of the gladiator without running afoul of the legal requirement in Massachusetts for zealous advocacy? In Hampshire's FRSC program, there are 3 ways to think about this:
1. The client requests the FRSC form of advocacy.
Before filing in the Specialty Court, both parents and any attorneys filing an appearance sign a consent form to participate in FRSC. The Consent to Participate includes a description of the FRSC model, a commitment to participate in mediation, a description of the parent's participation in the process, and a description of the non-traditional lawyer's role. As long as the parent has had a full opportunity to consider the pros and cons of the traditional process and of FRSC - that is, as long as the parent's decision to participate in FRSC is knowing and voluntary - the FRSC attorney for the parent is providing zealous advocacy because the attorney is following the explicit instructions of the client.
2. The model has been approved by the Massachusetts Trial Court in its very acceptance of the Specialty Court.
You may want to review the application the Hampshire Division submitted for approval of the Specialty Court and the acceptance of the application signed by then Chief Justice of the Trial Court Paula M.
Carey and then Court Administrator Harry Spence.
3. The Board of Bar Overseers reviewed Probate and Family Court Standing Order 1-10.
Hampshire's Standing Order contains a description of the lawyer's role that is similar to the role of the FRSC attorney. While the FRSC lawyer's role differs in some respects from the more limited role described in the Standing Order, there are significant parallels, especially that the focus of the Standing Order, like one of the main focuses of FRSC, is on the needs of the family members. The BBO was satisfied that nothing in the Standing Order violated the lawyer's obligation of zealous advocacy. When the Standing Order was first adopted, the Court consulted the BBO to ensure that attorneys practicing in the Hampshire Division were fully in compliance with their ethical obligation of zealous advocacy to clients. Some members of the bar may recall that a representative of the BBO appeared at a bar conference in Western Mass and assured the assembled attorneys that their work as described in the Standing Order was in compliance with the mandate of zealous advocacy. More recently, a number of Judges from the Massachusetts Court of Appeals visited FRSC and came to the same conclusion.
If you learn anything during the FRSC process that leads you and the parent you represent to believe that it is inappropriate to continue in FRSC, the process establishes a method for opting out. For example, you might consider opting out if the parent you represent finds that the process just doesn't feel right or if you discover that one parent or both are struggling with significant life challenges (mental illness, for example, or substance use disorder, or severe intimate partner violence) and cannot use this participatory method effectively.
In the FRSC model, even with its emphasis on needs, the rights of individuals are not forgotten. They are simply arrived at in a different way. The agreement the parties reach (or the decision the judge may have to make) in FRSC is subject to the same laws of fair outcome that guide traditional cases. But the journey toward the agreement or judgment takes place without allegations of fault, with fewer procedural formalities, with greater openness regarding facts, and with a commitment to a joint search for solutions. The "victory" at the end of the process is not of one parent against the other but of the parents together against the looming risk that, if they become enemies, their children will suffer.
The tasks of the FRSC lawyer
The FRSC lawyer has 4 main responsibilities.
1. Introducing FRSC to your client.
You should use your own professional judgment to determine whether or not to offer FRSC as an option for each person with children who seeks your help for divorce, modification, paternity or guardianship. If the parent expresses an interest in FRSC (or in trying to solve the legal issues in a non-adversarial way), you should be ready with sufficient knowledge about the FRSC method to describe it to the parent. Some of FRSC's main characteristics are:
- a focus on the needs of each family member (as opposed to the rights) with both lawyers participating in discussions about each family member's needs (including those of the other parent and the children as well as the represented parent)
- the parents' voices are primary and the lawyer takes a quieter position as counselor and coach
- open sharing of information among all members of the cross-professional team
In helping a parent prepare for participation in FRSC, it is crucial for the lawyer to review the details of the form called the Consent to Participate that the parents and all members of the support team, including the lawyers, sign before the family joins FRSC. Reviewing the very detailed provisions of the Consent is a useful method for zeroing in on the requirements of FRSC that both parents and their lawyers must agree to if they choose this model.
2. Giving Legal Information to the Parent.
The FRSC parent needs the same kinds of information that you normally address with parents beginning traditional family litigation, such as the law of divorce, property distribution, debt, spousal support, health insurance, child support and parenting. In FRSC, even though the parents will be speaking for themselves more than usually happens in the traditional court, they still rely on their lawyers as the principal source of legal information on which they can base the decisions they will work on in the FRSC process.
You may also give your opinion with regard to the parent's rights in the circumstances as you understand them. In the FRSC context, though, you may not leap at the outset to tell the parent what you think they can "get." You will need to find effective language for describing the way you and the parent will be part of the Team's effort to listen to and respect the perspectives of both parents. You will be supporting the parents' work in solving the issues and in learning to co-parent together if possible. You will need that same new effective language for letting the parent know that you will be representing the parent, not in a "versus" environment, but looking out for that parent's rights and needs in a series of civil conversations toward an agreement both parents can live with.
3. Counseling/Coaching/Supporting.
Because the parents' voices are the primary voices in FRSC, the attorneys will talk less than we usually do. For example, the parents attend the Initial Parenting Consultation with the Family Consultant without their lawyers. In the Court Conferences, the judge talks directly to the parents and expects to receive the greatest amount of information directly from them. This is not an easy adjustment for us as attorneys. We become supporting players rather than the leads in this drama. We have to plan ahead, helping the parents get ready for these events. We have to think about how we will help them move toward language that will not inflame; how they can avoid angry descriptions of the flaws of the spouse; how you will work together to provide and foster ideas that will open up possibilities for productive discussion rather than demands for "bottom lines." We help prepare the parent for mediation and for Court Conferences. We sit back in those conferences and give the parents the floor. When we do speak in the Court Conferences and other meetings, we do so with restraint, with respect for both parents, with suggestions framed with language we hope both parents can "hear." We remain guardians of the parent's rights-but more collaboratively.
Here are just two examples of the FRSC approach:
The tone and the vocabulary of your discussion with the parent you represent may differ from the tone and words you might use in the traditional system. For example, in FRSC you might not talk about "getting the house." Instead, you may talk about "What are your housing needs?" "What are your spouse's housing needs?" "Do you have ideas for ways that both of you could be adequately housed?"
Similarly, your strategy may differ. You might ask about the facts of the family financial situation that may be unknown to both parents (or to one) and consider ways that the parents could cooperate to get those facts - rather than launch into formal adversarial Discovery.
There are many other examples of nuanced opportunities for you to use your legal counseling skills in place of your litigation skills.
4. Communicating with the Team.
Openness and transparency are hallmarks of FRSC. The lawyer's confidential relationship with the represented parent remains intact in the FRSC process, but if there is information relevant to a sound resolution of an issue in the divorce or modification (regarding money, property, parenting or any other issue), FRSC expects that the information will be disclosed so that the team can deal with it openly. The process requires completed financial statements at the outset so that the parents can discuss the requirements of Rule 410 and make a reasonable plan for the exchange of any needed information. Part of the lawyer's responsibility is to ensure that updates in financial and other information are disclosed to the team in a timely way.
In addition to substantive openness, the team needs consistent sharing of procedural information. After each team meeting, the Team Coordinator or other team member may send a brief summary to the full team setting out agreements reached, issues you're working on, date of the next meeting, etc. For example, if the Family Consultant and the parents decide to meet together for one or more sessions following the initial interview, it is important that the Family Consultant communicate that decision to the full team. Similarly, if the parents decide to suspend mediation for a while, they should let the whole team know of that decision. Or if one of the lawyers learns that a vacation schedule of one of the parents will affect a decision the parents have to make immediately, the lawyer should alert the full team. There are many more examples, but this kind of information exchange is the key to effective team functioning. Although there might be exceptions, the rule of thumb in FRSC is this: Aside from private confidential communications, any communication you make in regard to FRSC process or content should be made to the entire team. Note that it is very important to become familiar with the unusual provisions of the Consent to Participate in regard to confidentiality.
The Crux of the Matter for Lawyers
Two professional characteristics will help attorneys practice in FRSC: patience and curiosity.
We need patience because it is very, very hard to sit quietly and listen through a series of meetings when our own ideas are not the main focus. We meet early (and sometimes often) in FRSC because the Court expects each member of the team to be a learner in the process - to learn from each other about what particular family members need. We try to learn early so that each team member can respond wisely in discussions and be instrumental in assisting the parents' progress toward agreement. And that's where curiosity comes in.
It is useful to recognize that in traditional cases, we almost never know much about the other parent's story until much later in the process - or we know it only through the perspective of the parent we represent or through hurried motion sessions. We always run the risk that we will immediately side with the parent we represent and then be surprised in a later hearing when the family reality is not as one-sided as we suspected - and a whole lot more complex.
FRSC gives us a chance to see the complexities of the family early on so that we can shape ideas for solutions in a realistic context and with everyone's suggestions. If we stay open to that learning, we will be able to assist both parents in understanding the other parent's perspective, to figure out ways to talk about it that will enable real communication, and to make good use of all the resources that the team can provide.
Here's one more way to look at it: In FRSC just about the only thing missing from the traditional system is the "versus," the tone of an adversarial arena. All the other functions of the zealous advocate remain in place - though at a lower decibel level. Information-giving, information-getting, negotiation, analysis of individual rights, review of agreements for fairness all remain fully intact.
Summary
In FRSC, the parents and the child are at the center of the process. All the other members of the team, including the parents' lawyers, share the obligation to support the primacy of the parents' voices and the focus on the needs of all family members. The attorney's role is to give information; to assist the parent to take part in the FRSC events to the best of the parent's ability; to encourage and demonstrate a willingness to listen and learn about the needs and perspectives of both parents and the child; and to review the decisions the parents are making to be sure they are fair under the law and under the specific family's expressed wishes. The Court encourages the attorneys who practice in FRSC to model the best forms of effective communication for the parents to observe, emulate and adopt as their own.