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Collaborative law nears maturity
By Donalee Moulton

April 06 2012 issue

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Collaborative practice — ​a method of resolving disputes with the help of lawyers but without going to court — ​is gaining ground in Canada. Some of that ground, however, remains rocky.

“Collaborative law is without question the fasting growing form of alternative dispute resolution in North America,” says Christopher Fairman, a law professor at Ohio State University. “It didn’t exist as a distinct practice until the early 1990s.  In twenty years, it has spread literally throughout the world.”

Indeed, it now has its own umbrella group, and the International Academy of Collaborative Professionals boasts nearly 4,000 members in more than 200 practice groups in 20 counties, Fairman says.

The popularity of the practice is particularly focused in the area of family law, where “all collaborative communities are expanding,” says Leisa MacIntosh, a family mediator and lawyer with MacIntosh MacDonnell & MacDonald in New Glasgow, N.S.  “The growth comes from both within the legal profession, by lawyers who are encouraging colleagues to get trained, and outside the profession, by savvy consumers who are sourcing out more effective and value-based services.”

Acceptance is also evident in new legislation, such as British Columbia’s Family Law Act, which recognizes collaborative law in its definitions as a family dispute resolution process.

“Its source of popularity is the promise to resolve the dissolution of a marriage and related issues without having a court decide them,” Fairman said. “It is also attractive because open communication, voluntary sharing of information, and emphasis on creative problem-solving are hallmarks that appeal to divorcing spouses who want or need to maintain continuing amicable relationships, such as when children are involved.”

MacIntosh adds that clients are better served in the collaborative forum, where traditional and sometimes confrontational tactics of the “hired gun” are absent while skilled financial and parenting experts are available to work things out with the parties.

“Collaborative practice takes the best of everything and puts it in one package,” she says. “And although it may sound counterintuitive to some, in my opinion the collaborative forum offers one of the best opportunities for advocacy — ​where as a lawyer you help the opposing party meet his or her needs as a means of achieving the best possible outcome for your own client.”

But the road to acceptance has been bumpy — ​from inside and outside the profession.

Victoria Smith, for one, suggests collaborative practice is reaching a tipping point. “I think the resistance to collaborative practice is the belief clients sacrifice their legal rights and a good result to achieve peace,” says Smith, a collaborative lawyer and mediator with Chestnut Collaborative Solutions in Toronto.

“As a CP practitioner, I realize how challenging it is to balance that tension. Sometimes we don’t get it right. But more often we do. And we are getting better with experience and ongoing training.”

MacIntosh agrees that the collaborative process is not for every file. “The clients must want to be in the process and, thus, be truly engaged and prepared to maintain agreements. Where there is resistance to collaborative practice, it is perhaps an indicator that the movement is still maturing.

“Many litigators who obtain collaborative training are nervous to let go of the security that the courtroom provides.  These attitudes are understandable.”   

There is also a struggle to stake out clear legal ground, says Fairman at Ohio State. “One challenge is to avoid a turf war with other similar forms of alternative dispute resolution. Disagreements exist between collaborative lawyers and other collaborative practitioners, proponents of collaborative law and co-operative law, mediation advocates and collaborative professionals.  All of these ADR professionals risk limiting the expansion of the movement with needless in-fighting.”

Other issues relate to the approach of collaborative practitioners, says John Lande, law professor and senior fellow at the Center for the Study of Dispute Resolution at the University of Missouri School of Law. “Some practitioners have strong beliefs about the proper way to handle a case and are not open to clients’ contrary preferences, despite the fact that the process is often described as client-centred.  While the disqualification agreement [used in collaborative law] can promote serious negotiation, it can be abused.

“Even when it is not purposely abused, some parties feel stuck in the process because they invest so much money and emotional commitment that they don’t feel able to try another process if they are dissatisfied with collaborative practice.”

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