The confrontational scenario of two former lovers who are now feuding adversaries duking it out in a courtroom over children and assets is itself being increasingly challenged.
Alternative dispute resolution methods such as mediation and arbitration are prime for family law, which sees a high proportion of people trying to find resolution without the assistance of a lawyer.
But one of the lesser-known alternatives is the collaborative law practice, which allows parties to negotiate a suitable settlement while avoiding litigation, with the support of a team. It is now being taught in some law schools.
The consensual process, developed in the United States in the 1980s, sees the two parties agreeing to the shared goal of reaching an out-of-court settlement in a supportive context. And its appeal is growing into the mainstream, says Deborah Graham, a collaborative family lawyer and mediator in Toronto.
“The shift we’ve seen over the last decade is that people who initially came into this process 10 or 15 years ago had very high trust, very high communication skills between them, a lot of shared goals and so it was a supportive context for that. Now what we’re seeing is people who are intensely betrayed, very devastated, not mutually agreeing to end a marriage, but it is the choice to find a place in themselves that can step up and still work in a consensus-building process,” says Graham.
The process sees the lawyers, working from an agenda, present the legal model at the meeting. The parties, after consulting counsel as well as finance and family professionals, start generating options for resolution, ultimately leading to an agreement that is put into a separation agreement. A resolution might be achieved in a meeting or two or it might take a series of meetings.
The collaborative practice acknowledges that the law, on its own, may not be enough for some families, says Nicola Savin, president of the Ontario Collaborative Law Federation and partner at Birenbaum Steinberg Landau Savin & Colraine LLP where her family law practice includes the collaborative approach as well as litigation and mediation.
Collaborative law is based on the idea that family law raises issues and problems distinct from other forms of legal disputes because it involves financial and emotional issues in addition to legal issues. So the collaborative approach includes jointly retained financial and family professionals, as well as the lawyers, all trained on the collaborative model.
There are 19 practice groups in Ontario with about 500 trained collaboration professionals. In Toronto, there are about 100 trained collaborative professionals, 75 of whom are lawyers.
“In some respects, the emotional issues are more important to the people than the legal ones,” says Savin.
“The collaborative process allows you to customize your resolution to fit your own individual family’s needs and your own individual goals and concerns.
“So, instead of phone calls and letters and court documents going back and forth, the parties actually sit down with their counsel and everything happens at the table.”
Discussions can be difficult, Savin adds, so it’s helpful for someone trained to manage the emotion in the room so that the discussion is focused and ensure it is productive and follows the agenda.
That family professional is also instrumental in working out the parenting plan with the parents, which is presented to counsel to vet. As advocates for their clients, the lawyers work through the stumbling blocks.
The role of the “financial neutrals” is to provide advice on income and business valuation issues and gather the financial information.
“And I do find that the parties are more open to believing the veracity of the information if it’s provided by someone other than the other side’s lawyer,” says Savin. It also has the benefit of saving money and time, she adds.
Family lawyer Nicolle Kopping-Pavars considers herself a peacemaker and quickly attached to the collaborative approach, finding it to be one with integrity, when she moved to Canada, establishing her own practice in Markham, Ont. She now returns to her native South Africa to teach it to lawyers there.
She appreciates the team approach and the ability to deal with emotion as the couple works toward a legal resolution that begins with a participation agreement to agree to the process and agree that courts will not be part of the process, which remains confidential. So the spectre of going to court cannot cast a shadow over the discussions.
“The realness and the emotion of separation — collaborative law allows that to come to the table, whereas litigation and courts don’t allow it to come to the table, and then people stay in that litigation mode because their voices and their interests and their goals and their feelings are never addressed,” says Kopping-Pavars.
But those who are not prepared to voluntarily make full, accurate, honest and timely financial disclosure are not good candidates for the collaborative approach, says Graham.
The next layer is weeding out those who are clearly motivated to use this process in an abusive way — starve their spouse out or maintain the status quo.
“When I try to help people choose between mediation or collaborative, a lot of my assessment [is] about where they’re going to be a better fit, how much support and coaching are they going to need from an ally, an advocate,” says Graham.