Law Times

PAGE 10 FOCUS November 10, 2008 • Law Times hard data showing that it saves clients money, says a University of Windsor law professor. "We don't have any more re- No hard data that collaborative law saves money T BY GLENN KAUTH Law Times he practice of collabora- tive family law is grow- ing, but there's still no of a conflict, you don't necessarily feel like sitting down and having a nice, cozy, constructive dialogue. What you want when you're in a conflict is someone to tell you you're right, and the other guy is a schmuck," says Macfarlane. Nevertheless, practitioner Ed- search, and this is a big gap," says Prof. Julie Macfarlane, an expert on alternative dispute resolution. Macfarlane first identified the is- sue back in a 2005 report for Justice Canada. Since then, she says a lack of cases to study has prevented more exhaustive research on whether col- laborative family law, which aims to settle divorce and separation cases through co-operative and respectful negotiation rather than litigation, actually saves money. In part, that's because not enough people have been jumping on the collaborative law bandwagon. "I think for lack of a better word that selling collaborative law faces many of the same problems that selling mediation has, which is that when you're in the middle ward Gareau says that despite the lack of hard proof, collaborative family law generally does reduce the time required to deal with a case and hence legal fees. "I've seen it borne out from practical experience from the files I've had," he says, noting that collaborative family law offers other benefits, including con- fidentiality for the parties. Besides, he adds, because it's the clients who typically drive the process with each having lawyers available to provide advice, they're the ones who dictate how fast ne- gotiations proceed. "They can control the pace at which matters are dealt with," he says. "Cost is one thing, and speed and efficiency are another thing, but there is a human dynamic as well that is interesting. In this pro- cess, the clients do a lot of talking themselves. As a result, at the end the parties can communicate with each other a lot better than they could at the beginning." For her part, Macfarlane accepts the notion that keeping cases out of court through a process which aims to find a mutually acceptable solu- tion for everything ranging from custody and access matters to prop- erty division likely saves time and money. But the risk is that in some cases, the time it takes to get to that point can be just as long as litiga- tion, particularly in cases where the parties — often at the recommen- dation of their lawyers — bring in experts like financial advisers and psychologists to help them. "It seems that in some ways this would probably be a no-brainer that it's a less expensive process if it requires fewer pieces of paper to be generated and generally concludes in a shorter period of time than a court divorce," she says. "We prob- ably don't need research to do that. "But what we don't know is how often collaborative cases — because they really do value this idea of consensus, and that takes a while to form — might actually take lon- ger than going to court and having someone tell you who is right." Despite the challenges, Gar- eau, the president of the Ontario Collaborative Law Federation, says the idea is catching on in the province, with 17 practice groups now set up across Ontar- io. "Also, the practice groups are growing in size," he says. But for Macfarlane, the emerg- ing phenomenon faces other chal- lenges. In particular, Canadian practitioners have yet to fully re- solve the ethical concerns about the disqualification clause, a key element of collaborative law con- tracts that commits the lawyers to withdrawing from the case should settlement negotiations break down and the parties decide to go to court. In the United States, she notes, the issue has sparked intense debate. In Colorado, for example, the state's bar association issued an ethics opinion arguing that by entering into a collaborative agree- ment with the opposing side, law- yers were violating their duty to act only in their client's best interests. Federation of Law Societies National Family Law Program July 12 - 15, 2010 • Victoria British Columbia CALL FOR PAPERS Planning for the National Family Law Program in 2010 is now underway. We request your input. We extend an invitation to you to submit a proposal for Papers/Presentations under the following guidelines: 1. Four copies of a one page outline of topic(s), format of presentation and estimated time for the presentation or workshop. 2. Your agreement to provide an original written paper on the topic(s) by May 15, 2010. 3. Your agreement to participate in other presentations as workshop leader or panelist if required. 4. Please include four copies of your curriculum vitae with your submission. Your proposal must be received no later than May 30, 2009 Please submit your Family Law proposal to: Heather Walker Program Co-ordinator P.O. Box 244 Woodville, ON K0M 2T0 e-mail: nationalfamilylawprogram@sympatico.ca Note: Presenters will receive a contribution toward travel and accommodation expenses. National Family Law Program 2010 I wish to receive more information about the program when available. Please send this form to: Heather Walker - Program Co-ordinator National Family Law Program Federation of Law Societies P.O. Box 244, Woodville, ON K0M 2T0 Phone: (705) 879-3082 (messages) Fax: (705) 374-4131 E-mail: nationalfamilylawprogram@sympatico.ca Name: _______________________________________ Firm: ________________________________________ Address: ______________________________________ City: ________________________________________ Province: _____________________________________ Postal Code: __________________________________ Telephone #: ( Fax #: ( "I think that there is concern that in providing a different retain- er agreement from anything that is ordinarily offered in traditional le- gal practice, there is concern about two things," says Macfarlane. "One is that there may be cases that are inherently unsuitable for that ap- proach. For example, if you have a party that may not be very good at negotiating in their own interest or there may be a history of violence, one concern is that this is a very particular way of reaching a reso- lution, and it's important to have good screening to make sure that the inappropriate cases don't find their way into this process. "The other issue is that given the extraordinary dimension of the disqualification clause, there needs to be some sort of special respon- sibility on collaborative lawyers to really explain to their clients what the possible consequences of that might be. This has been an issue of informed consent." Macfarlane notes that the pro- fession in the United States has struck a special committee to con- sider possible rules for collaborative lawyers on informed consent but she doesn't expect to see a similar process here. "We're less keen on having rules than most of these other countries are," she says. Gareau also doesn't expect the is- sue to spark much debate in Cana- da and says he has no problem with the disqualification clause. "Most parties understand that the role of the lawyer in the collaborative pro- cess is different than the role in tra- ditional positional bargaining." The clause, he adds, "is a way of having everybody commit to the process," meaning that, "We're all committed to a resolution that meets the needs of both parties. We do that without the spectre of court hanging over your head." But Macfarlane adds the col- laborative law movement faces two other key challenges: the lack of a formal accreditation process for practitioners as well as the ten- dency by some lawyers to adopt a stringent and ideological approach to collaborative law that may not match the enthusiasm of clients. "There's a kind of press for orthodoxy which creates, I think, a lot of unnecessary arguments about [whether] we do it this way or we do it that way," she says. "I think that the collaborative move- ment needs to just embrace a lot of diversity and assume that individ- ual clients will negotiate and con- tract with individual collaborative lawyers who won't all do it exactly the same way." Gareau, however, argues that )_____________________________ ) __________________________________ E-Mail: ______________________________________ www.lawtimesnews.com the client-centred approach that lies at the heart of collaborative law mitigates against that problem. He adds that creativity and flexibility are precisely what make it work, particularly since the freedom from traditional legal structures allows for solutions that a court might not otherwise consider. For example, a couple might negotiate a settlement that allows for child-support payments that are less than what the guidelines set out in exchange for a commit- ment that the payer will do more with the kids. "We don't control the process and we don't control the result," says Gareau, adding, "In the col- laborative process, it's what the client wants." LT

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