Roger writing the LAWmag
Dec 2012

Collaborative Law: Divorce Without Angst

I work as a family law lawyer.

I am a mediator, a collaborative lawyer and, at times, I attend court.

On March 18, 2013, when the Family Law Act becomes the law in British Columbia (see Family Law Tsunami to Hit British Columbia), I will be a family dispute resolution professional. And I will continue to work as a mediator, collaborative lawyer and I anticipate, at times, I will still attend court.

I have been working as a lawyer for twenty-five years and throughout the last twenty-five years, I have been an advocate. However, how I advocate has changed. While mediation was and is a valuable resource in my legal tool box, it is collaborative law that is, in my view, the most exciting area of law.

Mary MouatWhen I first started talking about collaborative law with people, I had to stress that it didn’t involve lawyers wearing French berets, smoking Gitanes, and having furtive conversations in dark bars. Not that those are bad things, mind you.

As collaborative law became more mainstream, the next myth to be debunked with colleagues was that this is something all [good/competent ... fill in the blank with positive word] lawyers have been doing for years and that no formal documents, or heaven forbid, more training, was needed to do what he or she was already doing.

The next issue was cost. Surely having all these professionals involved was going to cost too much. No mention was made about the cost of a Courthouse, which includes overhead, judges, clerks, sheriffs and others.

Further, no mention was made about the cost of having a lawyer, no matter how skilled, kind or well intentioned, charging an hourly rate for providing some services for which she or he has no particular training. I am very fond of pointing out that not only am I the most expensive counselor my client can have - I'm also the worst.

So why do I think collaborative law is an exciting process? What isn’t exciting about a process that is client-centric - a process that is designed by the clients, for their own particular family ... a process designed to build on their strengths and address any weaknesses - has to be the best process.

In a world where people define themselves by individual statements, be it a tattoo or stickers on the back of their car, shouldn’t this world offer the client individual, personalized legal solutions?

Is collaborative law the answer for everyone? Of course not and not for the reasons that people assume.

settlement hands © koszivu - Fotolia.comIt isn’t money or violence that precludes a collaborative process. It is capacity.

I see dispute resolution is being on a continuum. For the purposes of resolving issues arising from the end of an intimate relationship (i.e. in most cases), the number of people and the level of need is what moves the continuum from two people negotiating settlement at their kitchen table at one end, to a bitter, costly winner-takes-all ten day Supreme Court trial at the other.

Collaborative law isn’t necessary for everyone. If two consenting, well-informed people have come to an arrangement or settlement that works for them, they simply need one lawyer, acting for one of them, to prepare a written separation agreement and another lawyer to provide independent legal advice.

If two consenting, well informed people have come to an agreement on some or most but not all issues, then a lawyer/ mediator might be the right resource.

What happens if communication is the issue between our two well informed people? Or if there are issues of violence? What if one person has more social and economic power?

Assuming the people have the capacity (a key word) and willingness to take part in the collaborative process and they have the proper team to support them, then the collaborative process may well be the right process.

So what is capacity, or, more to the point, what limits capacity? It could be a mental health problem, an addictions problem or some other barrier that prevents a person, even with appropriate supports, from taking part in a negotiated settlement.

Collaborative law is not all-or-nothing and it shouldn’t be marketed to clients or to counsel as the best or only option. It is an option and a viable one.

It is an option that isn’t new. Collaborative law has been around since 1990. We know who started it (Stu Webb) and where it started (Minnesota) and why it started (clients needed something more). Collaborative law is a recognized and proven option.

It is an option that that doesn’t cost more than contested court action. In fact, one of the advantages is that it often costs less financially and emotionally, especially if one factors in legacy issues so important to children caught in the middle.

It is an option that can be more creative and responsive to client needs.

And it is an option that allows the participants to ensure children’s needs are at the forefront of all decision making, something that is going to become mandatory in British Columbia on March 18, 2013.

So, why say yes to collaborative law? Because for the right families, it is the best option available.

We don’t need to limit negotiated settlements for families that have already done the work, or most of the work.

Collaborative separation professionals have the skills, the training and the resources to offer families a team to empower them to broker their own settlement, without the need to resort to litigation to do so.

About the Author: Mary Mouat graduated from the University of Victoria, Faculty of Law in 1987. Since her call to the Bar in 1988, Ms Mouat has focused her practice and now works exclusively in the area of Family Law. A qualified mediator since 1996, she is an active member of the Victoria Collaborative Law Group and the past Chair of the Victoria Alternative Dispute Resolution Section. Mary has been active in a variety of professional organizations, including chair of the Law Foundation of British Columbia, 2009-2010.

Posted in Family Law

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