Collaborative law nears maturity
DONALEE MOULTON
ollaborative 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 reso-
lution in North America,” says
Christopher Fairman, a law pro-
fessor at Ohio State University.
“It didn’t exist as a distinct prac-
tice until the early 1990s. In
twenty years, it has spread lit-
erally throughout the world.”
Indeed, it now has its own
umbrella group, and the Inter-
national Academy of Collabora-
tive Professionals boasts nearly
4,000 members in more than
200 practice groups in 20 coun-
ties, Fairman says.
The popularity of the practice
is particularly focused in the area
of family law, where “all collabora-
C
tive communities are expanding,”
says Leisa MacIntosh, a family
mediator and lawyer with MacIn-
tosh 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 pro-
fession, 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 relation-
ships, such as when children
are involved.”
MacIntosh adds that clients
are better served in the collab-
orative forum, where trad-
itional and sometimes confron-
tational 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 counter-
intuitive 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 achiev-
ing 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 real-
ize how challenging it is to bal-
ance 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 col-
laborative process is not for every
file. “The clients must want to be
in the process and, thus, be truly
engaged and prepared to main-
tain agreements. Where there is
resistance to collaborative prac-
tice, it is perhaps an indicator that
the movement is still maturing.
“Many litigators who obtain
collaborative training are nerv-
ous 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 col-
laborative lawyers and other col-
laborative practitioners, propon-
ents of collaborative law and
co-operative law, mediation
advocates and collaborative pro-
fessionals. All of these ADR pro-
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fessionals risk limiting the expan-
sion of the movement with
needless in-fighting.”
Other issues relate to the
approach of collaborative practi-
tioners, 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 agree-
ment [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.” n
I think the resistance
to collaborative
practice is the
belief clients sacrifice
their legal rights and
a good result to
achieve peace.
“
Victoria Smith, Chestnut
Collaborative Solutions
