Collaborative practice comes into its own

Many family law disputes are better resolved with a team in a non-adversarial setting, and more lawyers are offering this kind of help. As collaborative practice grows in popularity, a number of family lawyers across the country are working to launch Canada’s first inter-disciplinary organization.

Collaborative practice comes into its own
Illustration: Jeannie Phan
Many family law disputes are better resolved with a team in a non-adversarial setting, and more lawyers are offering this kind of help.

As collaborative practice grows in popularity, a number of family lawyers across the country are working to launch Canada’s first inter-disciplinary organization.

“Collaborative Practice Canada will be an organization of lawyers and other professionals working in collaborative practice,” explains Jacinta Gallant, lawyer and mediator in Charlottetown, P.E.I.

“Lawyers are organized already, but this one is devoted to public education, promotion and advocacy around dispute resolution for families.”

Currently, “we are in the process of designing our membership and consulting across the country,” Gallant says. “We hope to be launching in the fall with some kind of a Canada-wide initiative for next year.”

Collaborative practice is a form of alternative dispute resolution that takes a team approach. The divorcing couple each gets a lawyer, and they meet as one group to work through the details of the separation with a free exchange of information. Clients are educated together to avoid receiving different advice or strategies, and they aim to scrap the adversarial nature of court proceedings.

Depending on what the couple needs, the group can opt to bring in child specialists, financial advisors or mental health professionals. The process aims to advance joint interests — lawyers lose the positional stance of only looking out for their own client. Participants sign a participation agreement stating they will not go to court, but if they do, the collaborative professionals — including the lawyers — do not go with them. In Canada, British Columbia was the pioneering province with the practice starting there about 16 years ago.

Jonathan Lazar, partner at Watson Goepel LLP in Vancouver, B.C., trained in collaborative mediation 10 years ago. “The process made a lot of sense to me,” he says. Over the last few years, he’s transitioned to a full-time practice in collaboration.

He says the main difference from other forms of alternative dispute resolution is the client retains ownership over the process, with the option of various pieces of professional advice — of which legal advice is just one leg — to help them resolve sticking points.

“Lawyers might not be the right professional to ask all the questions that are involved in dissolving the family unit,” he says, adding what collaborative lawyers are trying to do is help couples have difficult conversations by putting everything on the table to talk through. “You’re building a team around the couple to come up with their own solution — completely the opposite of court.”

“Those of us who practise in this area have found how much more we can offer our clients,” says Judith Huddart, a family law lawyer at Dranoff & Huddart in Toronto. It’s not just the results, it’s the process of getting to those results, she says — collaborative practice adds more value despite not necessarily being cheaper than court, depending on individual circumstances and how many professionals are needed to help settle disputes.

“If what you want is to know you can comfortably sit down and you’ve got your backside covered because you’ve got your lawyer there to guide you as you make decisions, that’s the process you want. You can’t necessarily cost that out in ways that make sense.”

There is a risk collaboration “could backfire in a sense” when a couple fails to reach an agreement and has to pay for court in the end anyway, says Diana Isaac, associate lawyer with Shulman Law Firm in Toronto. Isaac offers her clients representation in court as well as alternative dispute resolution options, including collaborative law. Because of the collaborative agreement, that means starting over with new lawyers.

“Family law falls a lot on the facts and to have someone relearn it can be expensive,” Isaac says.

She also notes that collaboration can be “an enticing option” when a spouse or couple have high net worth or sensitive information and want to maintain privacy, not have their business in court documents in the public domain.

Huddart, one of the leaders in developing Collaborative Practice Canada, says there’s been a lot of development provincially across the country, with nine provinces having collaborative groups and many people offering the service, but “no across-the-board, national perspective on this.

“What is it that we’re trying to offer? Who are we offering it to? How do we be inclusive, not exclusive because I think that’s really important,” she says. “We met a year ago in March — a number of us on our own hook went to Calgary and got the benefit of a no-charge facilitator who works a lot with groups and really fleshed out a lot of these questions.”

The establishment of the national group is happening at an opportune time, as family law lawyers are seeing an uptick in collaborative practice’s popularity, and for good reason, they say.

“It’s more reasonable and makes more sense for the most part — it’s a rising trend and I wish it would be more known,” says Lazar, noting that despite the Family Law Act in B.C.
specifically stating lawyers have to discuss alternatives to court with clients, most referrals are coming from collaborative colleagues or former clients who had positive experiences.

Over the last few years, there’s been a shift with clients coming to lawyers with at least the knowledge of the word collaborative and specifically asking about it, he says.

Statistically, for Lazar’s practice, and for the International Academy of Collaborative Professionals, about 90 per cent of cases that start in a formal collaborative setting will settle.

“Part of my practice is training lawyers, mental health and financial professionals who want to work in collaborative practice,” says Gallant, who entered collaborative practice early while practising on Vancouver Island and started a group when she moved back to P.E.I. in 2002. She says the interdisciplinary approach is gaining ground, with most collaborative cases now including either a mental health professional or financial professional working on the case.

“There have been a lot more teaching opportunities lately, and the number of clients who choose collaborative is going up every year,” she says of P.E.I., adding that she stopped doing court hearings a year and a half ago. “The inquiries I get now to teach even just the introduction to this process are four times more than two years ago. I do believe we’ve hit a bit of a tipping point for families to discover this is a process that is really workable and adaptable to their issues.”

As for Ontario, Huddart has also seen a rise in people training in the collaborative process, but the “challenge remains bringing in the couples and helping them understand why they might choose this process over a more adversarial type [of] negotiations, which have been the standard,” she says, noting it’s a definite shift from the typical adversarial mindset for both practitioners and clients.

“I think a lot of professionals have made that paradigm shift and want to offer this, but the public awareness of this isn’t where we’d like it to be in Ontario,” Huddart says.

As much as collaborative professionals try to get it on the radar screen as an option, the government is “still very focused on mediation,” she says, noting it’s a struggle to maintain a profile that is equivalent to mediation’s.

It’s hard to get buy-in from the government — Ontario is focused on how to help unrepresented litigants in court as opposed to “what the hell kind of system do we have that we’re sending people to court that can’t afford a lawyer,” Huddart says.

“System changes come hard,” she sums up. “We have work to do here. This is why nationally we have to learn about what’s happening.”

B.C.’s recent changes to legislation have “really brought collaborative on to that radar screen, so I look at them as something to aspire to frankly,” Huddart says, adding Ontario certainly isn’t there yet. She also notes that in Saskatchewan, when they set up their collaborative group, it got the support of their law society, what she calls “a very interesting step” because no other groups across Canada have received that. It’s good to have professional groups onside, she says.

“A number of years ago, the Canadian Bar Association passed a resolution supporting collaborative, which is important because that’s our national legal association — so, on record, the national bar association is supportive of collaborative practice. We take these steps along the way, but we can always do more.”

The B.C. Collaborative Roster Society launched a pro bono project two years ago that’s done through the provincial court system. Couples coming into conferences through the court system are referred by judges to the project, Lazar says, and the vast majority of cases handled so far has been successful. The program also offers pairing of new collaborative professionals with more experienced ones to foster mentoring. Seventy-five professionals have completed the training in the model so they can provide the pro bono service, and the protocols developed over the course of the project have been shared with nearly 100 collaborative professionals in various different countries.

There are plans in the works now to expand the services into a fixed-fee model so more people can access it as an option, scheduled to launch in the next few months.

Traditionally, a couple would go to court with lawyers who had never spoken to each other before, go before the judge and make their best pitch. But in the end, the judge will dictate what happens to your children, your money — your life, Lazar says.

The collaborative process gives the clients more agency and freedom to come up with compromises that work for their family. Judges just don’t have the time — or the jurisdiction — to deal with the personal issues.

“In family law, a lot of the issues we end up addressing that are critical to resolving the issues are not legal issues,” says Audra Bayer, senior associate at MacLean Law in the Kelowna, B.C. office, noting that collaborative law provides an avenue for resolving these issues that have to be addressed in order to resolve the legal problems.

She says it’s a question of getting out of the mentality that “we as lawyers drive the process.”

“If you step back and let them think about the options and what might work for their family, I have been amazed at what they come up with,” Huddart says. “Yes, it might be a little outside the legal box, but who cares?”

Within family law, collaborative practice is now being used for prenuptial or marriage agreements. It can also be used in any area of law where relationships matter, Gallant says. That could include estate law, contract work or even labour and employment cases — areas where you have emotion and conflict and need dialogue.

Collaborative practice might not suit everyone, however. Isaac says that, when deciding if a couple make good candidates for collaborative practice, she looks for red flags such as relationships with unequal power dynamics, which are common in relationships that experience domestic violence.

Isaac also keeps an eye out for situations where it looks like litigation will be needed to compel full disclosure from one spouse or the other, noting that putting it all on the table is a requirement for any conversation to be fruitful.

“Court is the last option, but it is the option,” she says. “Think of situations where there’s urgency — a child is being abducted. You have to go to court and go right now. A spouse is financially dependent and being starved out and not getting spousal or child support — you can’t sit there and try to negotiate, they’re in dire need of support. In those cases, you will be running to court very quickly.”

Huddart agrees that the primary goal is clients’ safety, and “if we can’t provide that because of something that was happening, I would certainly send them to a lawyer for court — but, in my experience, urgent cases are few and far between.”

She points out that, even in an urgent situation, the lawyer would still have to prepare documents.

“It doesn’t happen overnight,” Huddart says.

Though the collaborative lawyers all agree litigation is an important part of the justice system and is needed to shape the law, in family law especially, there needs to be more acceptance of a different approach.

Gallant points out that the CBA Futures Report identified that the future of the law practice will be lawyers acting more as guides and partners in helping clients resolve disputes, and Bayer argues there should be mandatory training in different dispute resolution options at the law school level and greater conversation about the value of the different processes.

“We need strong litigators and we need excellent trials that advance the law, no question,” Bayer says. “But lawyers have got to be able to offer the public different types of services which may have different costs and help them get to these outcomes differently.”

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