"There is no winning in family court; there are only degrees of losing," stated the Honourable Mr. Justice Harvey Brownstone of the Ontario Court of Justice at a Halifax "Divorce Fair" in January of 2010. Justice Brownstone was in Halifax promoting his book, titled "Tug of War," described as “a judge's verdict on separation, custody battles, and the bitter realities of family court."
As one might gather from the title, Justice Brownstone encourages men and women experiencing a family separation to consider all possible settlement alternatives before going to family court. Recently, a group of family law lawyers in Fredericton have formed "the River Valley Collaborative Law Group" to offer such an alternative.
A Brief History of Collaborative Law
Collaborative law was parented in 1990 by Stu Webb, a family law lawyer in Minneapolis, Minnesota, who walked away from his family court practice and advised his clients, colleagues, and friends that "he was a settlement lawyer only” and that he “would no longer be taking cases to family court." The practice of collaborative law has developed and grown in North America, quickly becoming an established and approved alternative to going to court in Canada.
The Process of Collaboration
In a collaborative law process, each person has a lawyer to provide legal advice from the beginning. The participants must have a willingness to act in good faith and work together to find solutions. The process fosters a respectful environment that supports the participants to speak freely and confidently about the issues. The collaborative law process uses interest-based negotiation techniques, where the participants are encouraged to discuss their circumstances and their interests, rather than taking positions and making demands from the outset.
To begin, a participant and their lawyer meet to discuss the collaborative law process and the terms of participation. If there is an agreement to proceed, the participants and their lawyers sign a legal agreement confirming they will not go to court or use threats of court to solve their problems. In agreeing not to proceed to court, both participants can feel more confident in expressing their concerns and issues without fear of the discussions being repeated before a judge.
No person can be deprived of their right to take a family problem to the family court. Therefore, a participant in the collaborative process can withdraw from the process, but they cannot thereafter be represented in court by their collaborative lawyer or a member of that lawyer's firm. This rule puts the focus on settlement.
The participants to the collaborative agreement agree to share relevant information freely between each other. They may agree on the use of outside experts to solve specific problems, such as property appraisers or child care professionals. All information shared is kept confidential unless both participants agree otherwise.
The lawyers and the participants schedule a series of four way meetings. Each participant is invited to identify their concerns and issues. The goals of the negotiation are established. The participants determine what information will need to be obtained to resolve the family law issues. Immediate problems are discussed and temporary solutions are proposed. The issues and concerns of the participants become the agenda items for future meetings.
Participants are free to consult with their lawyer privately and at any time, whereby they will provide necessary legal information. Frequently, the lawyers will meet privately to discuss how problems within the negotiation may be solved. The lawyers help the participants generate as many options as possible to move toward a final settlement. Ideally, an agreement will be reached.
The lawyers are the guardians of the process. The participants are responsible for the negotiation. A collaborative solution is a solution which, as nearly as is possible, meets the interests of the parties in the solution of common problems. It is more than a compromise.
Have a Say in the Outcome
Participants who make their own agreements are far more likely to respect those agreements. They will also develop negotiation and conflict resolution skills which can be applied to future concerns. This is particularly important as parents need to meet the developing needs of their children. A court struggle and a court order may not be the basis of future cooperation.
Members of the River Valley Collaborative Law Group are experienced family law lawyers who are trained in the collaborative law process and interest-based negotiation. We have all joined the International Academy of Collaborative Professionals (IACP). There is a wealth of information on the collaborative process to be found within the IACP website.
Rowan McGrath Lawyers strive to foster a workable and affordable alternative to a court action in Fredericton. Most participants in the family court system, the judges, the lawyers, and family social workers, encourage settlement whenever possible in family matters. At the conclusion of a trial, the lawyers walk away from the battle. The participants and their children are left with the consequences. So don't litigate, collaborate. Go online for contact information concerning the River Valley Collaborative Law Group or call Rowan McGrath Lawyers for additional information.