Collaborative Law or Collaborative Practice (CP) – a focus on family members’ interests – not just the spouses’ rights
The OUTCOME – It’s all about the OUTCOME!
When a family falls apart, time passes by and a case can be settled, negotiated or litigated but, even if nothing is done, there will always be some sort of OUTCOME. In litigation, the OUTCOME is emotionally and financially expensive for the family. If it is about children, it is usually psychologically and emotionally expensive for the children, with lasting damage, reaching into those children’s adulthood.
In a way, collaborative law is about reaching an OUTCOME which is a successful OUTCOME for the spouses and their children, if any.
Nancy Cameron QC suggests the following definition for a successful OUTCOME:
How we can achieve this (successful OUTCOME) using the collaborative law process?
- Try to meet the highest prioritized needs of each client;
- Focus on protecting and safeguarding the children’s well-being and security;
- Maintain (or, if necessary repair or create) a working relationship between the clients;
- Be practical enough for the clients to be able to live with the CP process and a proposed outcome to carry through;
- Be informed enough by the legal backdrop to withstand judicial scrutiny;
- Do no harm;
[Portions of this article appear in the book Collaborative Practice: Deepening the Dialogue by Nancy Cameron, published by British Columbia Continuing Legal Education and available at www.cle.bc.ca]
The Collaborative Law Process is the people-friendly approach to dispute settlement.
Collaborative Law uses an interest-based negotiation model, where clients and their lawyers work together to resolve a dispute without going to court. The aim is to reach a fair agreement while minimising costs, delays and stress.
That does not mean that the client is not legally advised but it does mean that the collaborative lawyer engages in a different type of advocacy and advising for the client. A collaborative lawyer does give advice, which is legal and deals with the backdrop of what a court would do. Once again, Nancy Cameron QC puts it best [collaborative practitioner must provide]:
- An option about the application of the law to the facts;
- An opinion about the probable outcome if the facts were adjudicated by a third-party decision-maker [e.g. a Court];
- An opinion about the range of possible settlement outcomes considering the legislation and case law;
- An opinion about the range of possible settlement outcomes considering the highest prioritised settlement needs of each spouse;
- A discussion about what the relevant legislation sets out, with some clarification as provided by case law;
- A discussion of the interplay between process and substantive law;
- An acknowledgment that law is a vital and changing entity, particularly in relation to families and this, coupled with the diversity of individual facts, limits the number of hard and fast rules;
- A backdrop discussion to return to as a benchmark for fairness;
- A discussion about process choices and likely consequences of different process choice; and
- A discussion of process choice, related cost, (including financial, emotional and relational) and outcomed variables.
Legal advice depends on the factual information that the lawyer has, the substantive knowledge the lawyer has, and the experience the lawyer has.
The collaborative process puts substantial expectations upon the clients as well.
Expectations of Clients and Professionals in a Collaborative Law Process
- In the meeting be respectful and cooperative.
- Attack the problems and concerns at hand – not the other spouse. No insults.
- Learn about each other’s relevant information, circumstances, interests and concerns together.
- Professionals share their views including all options open to each client together with each other and their clients in 4-way meetings.
- Speak for yourself. Make ‘I’ statements.
- Listen carefully and try to understand what the other person is saying, without judging the person or the message.
- Use first names for each other and both lawyers. Avoid ‘he’ or ‘she’.
- Express yourself in terms of what is important to you, what your concerns are and what you want to talk about. Avoid positions.
- Be ready to work for what you believe is the most constructive and acceptable agreement for both of you and your family.
- Do not interrupt when another person is speaking. You will have a full and equal opportunity to speak about everything that you want to talk about.
- If you have a complaint, raise it as your concern and follow it up with a constructive suggestion about how it might be resolved.
- If something is not working for you, please tell your lawyer so your concern can be addressed. Talk with your lawyer about anything you do not understand. Your lawyer can clarify matters for you.
- Be willing to commit time to meet regularly.
- Be prepared for each meeting.
- Be patient with each other and your lawyers. Delays in Collaboration can happen, even with everyone acting in good faith.
- Remember that each party and each lawyer involved, must make full disclosure to the meeting, especially financial disclosure but, also any other fact that might be relevant to the other spouse (like, “I forgot to tell you, I’m going back to my ex-spouse” – always guaranteed to make a meeting interesting)
Collaborative law involves a highly structured process of meetings between lawyers and lawyers and their clients, as well as a child expert and a financial expert, to deal with various outcomes’ scenarios.
One of the most important aspects of collaborative law is the fact that the lawyers’ job is to facilitate the spouses to an OUTCOME the spouses and their children can live with and consider successful.