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Building trust

Collaborative negotiation is a style of practice

People negotiating at corner of table

Collaborative family law, whose goal is to settle cases without going to court, can not only produce better results for clients, but also a better experience for the lawyers themselves, say proponents.

"It avoids the anger and the entrenchment of negative feelings that litigation provokes," says John-Paul E. Boyd, a senior family lawyer who practises in both Alberta and British Columbia. "It's aimed at the family as a whole instead of advocating for one client and being blind to the larger issue."

In collaborative law, the parties and their respective lawyers sign an agreement to work together to find solutions. The agreement also mandates complete disclosure. If the parties later decide to litigate, the lawyers must withdraw, and the parties must find different legal counsel.

Nancy Cameron, a Vancouver-based family lawyer and author of the book Collaborative Practice: Deepening the Dialogue, explains the reasoning behind this process: "It creates confidentiality through the whole negotiation process, and it also changes the environment because people aren't having to strategize. The aim is to create a safe environment in the room for the clients so they know I'm not ever going to cross-examine the other side, and we work to build rapport."

The trust between the two lawyers is essential to the process, and so is the requirement to ensure full disclosure, agree both Cameron and Boyd.

"If I find out that my client is withholding information, then my obligation is to terminate the collaboration agreement and notify the other side – and that signals that this is not suitable for the collaborative process," says Cameron.

Boyd says that he prefers to call the process "collaborative negotiation," as it is not an area of law but a style of practice.

But Boyd adds that family law is uniquely suited to collaborative practice.

"A family law case has different qualities than a regular civil law case," says Boyd, who works as an arbitrator, mediator and parenting coordinator. "The key difference between family law and other areas of civil law is that the people who are involved in a family law dispute have a continuing relationship with each other -- a relationship that endures past the final decision."

Unlike civil cases, the cause of action in a family law case continues to evolve, he adds.

"In civil cases, the cause of action is closed by the time you get to trial. It was a car accident that happened 10 years ago, it was a shareholder who was oppressed at a meeting three years ago," says Boyd. "In family law matters, there is no closed set of facts. The facts continue to evolve all the way up until the time of trial and beyond."

As well, family law is generally looking at the future, while regular civil actions deal with past events.

"The goal in civil cases is to provide an order for restitution that puts people in the position that they would have been in had it not been for that event," explains Boyd. "But with family law, the court isn't looking backwards, it's looking forwards. What's the best arrangement for the children looking forward? How much does someone need for support going forward?"

Boyd says that resolving family law disputes in court can be destructive for the family, because it's an adversarial system that can undermine the relationship between people who have to continue to work with each other despite their differences.

"In the collaborative context, you can deal with really, really hard stuff like cognitive impairment, addiction, even things like family violence, in a way that avoids the polarization of positions and encourages the adults to work together."

It can sometimes be difficult for the two parties to sit in the same room and negotiate, Cameron admits. But it's still much less difficult than litigation. "It's less intrusive. It's private because it's not in a courtroom and there is no court file and no other people listening."

Collaborative practice is also generally more expeditious and less expensive, she adds.

"From the beginning, lawyers are taking a holistic view of the case, which includes their client's well-being in addition to their legal interests," says Boyd. "The goal of collaboration is to resolve a family law dispute in a way that leaves the parties as whole as possible, and best equips them to work with each other in the future."

For the lawyers involved, collaborative practice is "far easier on your stomach lining," Boyd says with a laugh. "You don't have to look at the fax machine in terror, worrying that you are being served with a short-leave application. There isn't the stress of appearing in court. There isn't the same kind of all-or-nothing outcome."

Cameron agrees, adding: "From a lawyer's perspective, it's a much nicer way to practise. You have more control over your calendar. You're not getting served with notice of motion when you're going on holidays."

Cameron and Boyd agree that working with opposing counsel trained in collaborative practice can be a better experience for lawyers as well.

"Lawyers who are collaboratively trained approach each other in a cooperative and collegial manner," says Boyd.

"The other cool thing about the collaborative process, which really distinguishes it from litigation, is that you get to involve other people in the process. Sometimes you have mental health coaches to work with the individual parties to help them address the emotions involved in the bargaining process, their feelings about the separation. And the lawyers have the ability to speak directly to the mental health professionals," he adds.

However, Boyd does caution that it can be more emotionally draining than other forms of legal practice.

"You are more engaged in the process. You are required to think not just about your client but about the other party and (it) can be more intense "about the other party and (it) can be more intense."