BarTalk October 2003
Volume 15, Number 5

The new kid on the block

by Lisa Alexander & Nancy Johnson

The Associate Chief Justice of Alberta, Allen B. Sulatycky, summarizes the dilemma in a letter to all family litigants in Alberta: “Before you rush into court, stop and think about what you really wish to accomplish. If you feel a need to punish your spouse or partner, or to feel supported, the court system will not satisfy such needs.”

Collaborative Family Law (CFL) was introduced to the B.C. bar approximately three years ago, so it isn’t really new anymore. However, many lawyers have either not yet heard of it or do not have a clear understanding of the process.

CFL is the brainchild of Stu Webb, an experienced Minnesota family law lawyer who was so disillusioned by the effects of litigation on his clients that he felt he either had to come up with a better process or quit practising family law. He developed CFL in 1990 and the concept spread quickly. The International Association of Collaborative Professionals (IACP) was formed; this year the IACP’s 4th Annual Networking Forum for Collaborative Professionals occurs October 17-19 in Vancouver. For more information on the Forum, visit www.collabgroup.com.

Far from being a happy-clappy “let’s hold hands” exercise, CFL is a skill-based, innovative and multidisciplinary process for resolving family matters without going to court. Instead of husbands and wives hollering, “Talk to my lawyer!” and slamming down the phone, or worse yet, lawyers slamming down the phone on each other saying “We’ll see you in court”; the process encourages the parties to communicate with each other. This is done through a series of four-way meetings between the lawyers and the clients. The process also draws on the skills of therapists, counselors, financial specialists and child specialists to address issues that may arise for the family. This multidisciplinary approach allows clients to tackle their divorce comprehensively and not just legally. When clients can focus on their emotional issues, they tend to arrive at speedier resolutions on their legal issues.

At the outset, the separating couple and their two lawyers enter into a contract (the “Participation Agreement”) wherein everyone agrees not to proceed to court during the process. If agreement is not achieved and one party wishes to proceed to court then 30 days notice is given, and both lawyers must resign. A collaborative lawyer cannot take the case to litigation if the negotiation fails.

For lawyers, the collaborative process holds a unique challenge: that of putting egos and the need for control aside. Neither the lawyers nor the courts are the decision-makers in this process. Instead, solutions uniquely suited to the family are crafted by the most informed people in the team: the clients. Lawyers are no longer gladiators; instead, we are guides. Clients are assisted to look beyond immediate emotional and financial turmoil toward a long-range view of the family and the results.

CFL groups have emerged and spread quickly across Canada. The largest per capita memberships are in the Western provinces. The founding Vancouver group has 45 lawyer members, 16 therapists (divorce coaches) and three financial professionals. Of those 45 collaborative lawyers, approximately six practise collaborative law to the exclusion of litigation. The Okanagan Collaborative Family Law Group was founded in 2000, following an energizing presentation by Nancy Cameron of the Vancouver group. Both the Vancouver and the Victoria CFL groups have “collaborated” with the Okanagan group by sharing their experiences and precedents. The Okanagan group has 23 lawyers, six mental health professionals and two financial professionals. There are also CFL groups in Victoria and the Lower Mainland. Other CFL groups are forming around the province.

Training requirements for groups vary. Most CFL groups require 40 hours of mediation training plus two days of specific CFL training. Advanced CFL courses are offered on an as-needed basis. There are essentially two models of CFL training offered in B.C., multi-disciplinary and lawyer-only.

CFL is gathering support at many levels. It is taught at UBC in the Faculty of Law and is open to third year law students and graduate Psychology students. It is on the curriculum at the mandatory “Parenting After Separation” course in Alberta. In Alberta, the insurers provide rebates to lawyers with CFL training. Some provincial law foundations provide grants to various CFL groups to help promote the concept (SK $25,000). The Law Foundation in PEI provides each lawyer with $200 toward CFL training. In the NWT lawyers receive free CFL training.

Although statistical analysis is in its early stage, anecdotally it appears that about 90 per cent of collaborative files result in enforceable agreements. This is done at a much lower cost than in the traditional paradigm, often as much as 50 per cent lower. The process is also generally much faster, as it is limited only by the pace that the clients set. The real savings, however, are often in the emotional realm. Children are not used as pawns and reputations are not dragged through the courts. Those savings are incalculable.

Collaborative Law Web sites
For more information on collaborative law in Vancouver, call 604-878-1498 or visit www.collaborativedivorcebc.org. In the Okanagan, visit www.collaborativefamilylaw.ca.

Lisa Alexander is a member of the Vancouver Collaborative Law Group. Nancy Johnson is the Co-Chair of the Okanagan Collaborative Family Law Group.

This article originally appeared in the October 2003 issue of BarTalk and is reproduced here with permission of the authors and the Canadian Bar Association, British Columbia Branch.