Collaborative Law-Responses to the Letter by David Hart (Vol 16, No 4)
I have been practising family law for the past 34 years (10 of which were in Ontario and the last 24 in B.C.), and in addition, I am the founder and past Chair and current Treasurer of the Collaborative Family Law Group in Victoria.
The Collaborative Groups throughout the province are interdisciplinary and our Victoria Group comprises more than 50 lawyers, health professionals and financial advisors who have had specialized training in dealing with this new dynamic. Our mission statement is as follows: “We encourage and promote a new process to create positive solutions for people in conflict and families in transition.”
In David Hart’s letter, he is attempting to compare apples and oranges – a traditional, position-based approach where the lawyer is in control, which should be contrasted to the collaborative process which is based on transparency, is interest based and the traditional solicitor-client privilege may be waived to serve the process. The clients and their helping professionals work together as a team to create not individual solutions but solutions that work for the entire family. The clients retain control of the process and it is they who determine what is fair rather than what the lawyers feel is fair.
The Collaborative Law Participation Agreement creates a safe and supportive environment for each client’s objectives and concerns to be identified, recognized and respected. It has been said that a lawyer in this process is acting 60 per cent on behalf of the client and 40 per cent on behalf of the process so that the type of strategizing and manoeuvring that often occur in traditional negotiating is minimized, if not eliminated.
In terms of cost, our research and resource person in Victoria has canvassed the 38 lawyers in our Group and overall, the average has been approximately $4,000.00 for each client which is still significantly less than the Court option.
I am presently working on my 58th case where a Collaborative Law Participation Agreement has been signed and of those, I would estimate that no more than 10 per cent were not capable of being resolved by the CLF process, and in fact, in one instance the parties reconciled.
Robert J. Klassen
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David Hart implies that collaborative process does not include “the advice of competent and experienced family law lawyers.” This is not the case; an important part of collaborative practice is the advocacy of experienced and competent family lawyers.
Hart appears to argue against collaborative law (and mediation) based on his clients that have been unable to resolve all issues in one of these processes. Collaborative law uses the parties’ resources for one purpose, settlement. Rather than assume no one should try collaborative law because some couples do not resolve all issues in this model, I would prefer to see a professional dialogue about how we can better screen clients. Screening allows us to assess client needs at the very beginning of our relationship with our client, and offer a process option (mediation, collaborative law, or litigation) that best serves their particular needs. Clients that can benefit from a non-adversarial model can be offered a settlement-focussed process from the beginning.
Hart suggests that collaborative law is the new “flavour of the month.” This may be. On the other hand, this may also be a cliché that demeans the voluntary work of hundreds of practitioners across North America working to develop and promote this option. These professionals believe the public wants more process options when going through divorce, and that the 95 per cent who settle deserve an option that is 100 per cent devoted to settlement. I believe that our profession can benefit from a spirited discussion which recognizes that we serve a diverse public, and that as lawyers we bring a diversity of skills and personal values to our work. If we work together professionally, we can develop a choice of process options that are uniquely suited to the many different kinds of families who find themselves working through the complexities of divorce.
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These letters were published in the October 2004 issue of BarTalk.