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Collaborative Family Practice

By: James C. MacDonald, Q.C.

Collaborative Family Practice is emerging as one of the alternatives to dispute resolution in family law. It becomes the third resource in a lineup consisting of litigation, mediation, and collaboration. And like mediation, its closest neighbour, it is distinguished from litigation by employing non-adversarial techniques.

In a collaborative practice the clients themselves conduct settlement negotiations with the lawyers "by their sides" so that client ownership of the process is combined with legal protection. To accommodate these negotiations, greater use than usual is made of four-way meetings. However, there is a fundamental difference. The lawyers, instead of taking charge of the process, act as advisors to the clients and are present more as negotiation exemplars than as actual negotiators. And when they do negotiate, they stop short of taking control away from the clients.

It is understood that if settlement is not reached the lawyers must withdraw, and neither they nor any member of their firms may represent the clients in subsequent litigation. This is to ensure that there is no holding back. The participants are committed to employ all available skills to reach a reasonable settlement and no room is to be left to manoeuvre for litigation leverage. Half the mind cannot be preparing to cross-examine the other party while only the other half is concentrating on reaching agreement. The attitude, which must show through to the clients, is that there will be no cross-examination -- not even a thought of it. The matter will settle.

Lawyers are able to bring to the negotiations their knowledge of the law, their ability to analyze problems in the legal context, and their experience in generating options to solve them. These are good attributes and necessary for the success of the collaborative approach. But additional skills -- and for most of us new skills -- are required to use them in this context. Having renounced the possibility of litigation, adversarial techniques to advance the negotiations such as threatening to "go to court" are not available. Other means of persuasion must be found, and in a collaborative practice the means of persuasion swing 180 degrees to adopt cooperative strategies.

The four participants, with the parties themselves as the principal negotiators, work cooperatively to reach a mutually acceptable resolution of the issues. In order to carry out their role, the parties usually require a crash course in communication skills and the rudiments of interest-based negotiations. Only so much of this can be instilled across the desk in the office, and is better learned by observing the lawyers at work in the actual negotiation sessions. Collaborative practice makes this fact the key to its method. The lawyers, through their own communication and their assistance in the negotiations, demonstrate how conflicts are resolved and agreement is reached. Knowing that they are modelling techniques being studied by their clients, they are careful to act in the way they want the clients to act.

Guidelines set out in a paper presented at the 1998 Annual Conference of the Academy of Family Mediators summarize how collaborative lawyers should discharge their responsibilities. They should:

• "Advise their respective clients of the law which applies to their circumstances.
• "Model honesty, mutual respect, dignified behaviour.
• "Guide their clients through a process of "cooperative conflict" by using disagreement as a way to find creative solutions to problems.
• "Model listening skills for each party so that the interests of both parties are promoted. Thus, they represent their client's interests while mediating the other party's interest as well.
• "Bring stability and reason to emotionally charged situations and serve as agents of reality for unreasonable clients. They aid this process by using clear neutral language both in speaking and in writing.
• "Cooperate fully with each other to provide all necessary disclosure and discovery. …
• "Understand that court involvement is not an option and refrain from using adversarial techniques or tactics.
• And the lawyers should show that they, "Are committed to finding effective ways to assist parties in reaching agreement and overcoming impasses; i.e., using mediation or neutral experts to provide a third opinion."

The collaborative method has an immediate appeal to many of us. As one lawyer at the recent National Family Law Program in St. John's, Newfoundland, enthused, "It is so healthy." It is a way of practice that is like the way we want to live. Instead of using confrontation tactics and intimidating demands, the method reaches for the basic goodness in the individuals and looks for win-win solutions. Instead of accepting a by-product of bitterness as the almost inevitable result of the process, it aims to create a renewed respect for, or a better understanding of the other party, and a general feeling that the agreement was a job well done. And hopefully, the lessons learned about dignified conflict resolution will carry over to solve other problems in life.

Not all negotiations, of course, will end in agreement, but most will, simply because of the determination of all participants, and the collaborative lawyers, especially, to reach that goal through fair and open dealing. But if, despite all this, settlement eludes them, the parties will have the satisfaction of knowing that every reasonable effort was made, and that the lack of success was not for want of trying. They will also have a clearer understanding of the issues involved so that if the matter is to be litigated they will be in a better position to instruct their trial counsel on the crux of the case so that time and money is not wasted.

Collaborative practice began in some areas of the United States about ten years ago and anyone interested in following up on the subject can get a quick start from articles immediately available on the Internet. See:

Why Collaborative Law, by Chip Rose, J.D.,
http://conflict-resolution.net/articles/rose.cfm

Turn Down the Volume by Barbara Kahn Start, Esq.
http://mediate.com/articles/stark.cfm

Collaborative Dispute Resolution: An idea whose time has come by Tom Arnold
http://conflict-resolution.net/articles/arnold.cfm

A group of family law lawyers in the Toronto area is being assembled to explore ways and means of implementing collaborative law as part of their practice. Any one interested in becoming part of this group should contact the writer by one of the means shown below

July 31, 2000

James C. MacDonald, Q.C.

Chair, Steering Committee
Collaborative Family Law, Toronto
MacDonald & Partners
393 University Avenue
Suite 2000
Toronto, Ontario
M5G 1E6.

Telephone: 416-971- 4802, Ext. 221
Fax: 416- 971- 9584
Email: jmacdonald.mbjb@ican.net

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