What is Collaborative Law?
Collaborative law is a process, used mainly in family disputes, where the parties and their lawyers make a formal commitment to resolve the dispute outside the litigation process in an atmosphere of trust and collaboration. Lawyers are hired to reach a settlement and if the process breaks down, the lawyer must withdraw from the case.
While collaborative law has been growing across the United States in the last several years, it is still new to Canada. Groups of collaborative lawyers are being formed across Canada, including groups in British Columbia, Alberta, Manitoba and Ontario.
How Does the Collaborative Law Process Work?
The parties and lawyers undertaking a collaborative law process sign a participation agreement setting out their obligations. Typically these agreements include the following provisions:
Collaborative approach - Lawyers and parties pledge to work together in a respectful and cooperative manner to resolve the dispute.
Lawyer Training - Lawyers participating in the process often undergo special training in the collaborative approach. In many of the groups, such training is mandatory.
No litigation - Lawyers and parties agree not to use litigation or the threat of litigation, as long as the parties are in the collaborative process.
Automatic disqualification - Lawyers will withdraw from the case if it cannot settle collaboratively or if they or their client breach the participation agreement. Other lawyers must be retained if the case goes into the litigation process.
Disclosure - Parties and their lawyers agree to disclose information or material needed to assist the parties in achieving settlement. Some agreements provide only for disclosure of information or material requested by a party. This is to prevent parties from inundating one another with paper. The goal of this approach is to provide parties with the information they believe they need to resolve the dispute.
Experts - Parties may agree to use joint experts, including mental health professionals, child specialists and financial counsellors.
Confidentiality - Parties agree that any information or material disclosed in the Collaborative Law process, that is not otherwise subject to discovery under rules of court, will not be used in any court process.
Process - The parties and their lawyers agree to use four-way conferences (meetings of the parties and their lawyers) to work through the issues. These meetings are a central feature of the collaborative law process. They tend to be business-like but more informal than most other proceedings involving lawyers and their clients. At these meetings everyone works hard to find a resolution that is acceptable to both parties.
Why Chose a Collaborative Law Process?
Lawyers committed to settlement - Lawyers must be as committed as the parties to settle the dispute. Instead of focusing on adversarial tactics and skills, this approach requires lawyers to deploy their problem-solving skills in the search for a fair resolution to the parties' dispute.
Preserves relationships - Unlike the litigation-based model, which can easily exacerbate the emotional turmoil of family disputes, collaborative law can work to preserve and enhance relationships which may be ongoing, especially if there are children involved.
No reliance on third parties - The parties are not relying on a third party to impose, or even facilitate, a resolution. This can result in settlements that are more enduring.
Reduces cost - Avoiding litigation reduces the costs of resolving disputes.
Reduces time - Avoiding litigation reduces the time spent resolving disputes.
Collaborative specialist - The process allows parties to take advantage of the skills of lawyers trained in both advocacy and collaborative skills. If the parties decide to resort to litigation, they can then turn to a litigation specialist. The process also provides for other professionals to help couples with their emotional needs and to help them to communicate during a difficult period.
Continuity - The process creates continuity between the process of arriving at a settlement and the signing of a formal agreement. In mediation, for example, lawyers may not be involved in the process until an agreement has been reached.
Finding out More
If you are interested in using the collaborative law process or in finding out more about collaborative law, check your local yellow pages for lawyers practicing collaborative law.