Collaborative Law

A new alternative to dispute resolution, “Collaborative Family Practice“, is now the third resource in a lineup consisting of litigation, mediation, and collaboration. And like mediation, its closest neighbor, it is distinguished from litigation by employing non-adversarial techniques.

In a collaborative practice, the clients themselves conduct settlement negotiations with the lawyers by their sides so that client ownership of the process is combined with legal protection. These negotiations often take place during four-way meetings in which the lawyers act as advisors to the clients instead of taking charge of the process. The lawyers are present more as negotiation exemplars than as actual negotiators; when they do negotiate, they stop short of taking control away from their clients.

If the parties can’t reach agreement, then the lawyers must withdraw, and neither they nor any member of their firms may represent the clients in subsequent litigation. This is to ensure that there is no “holding back”: the participants are committed to reaching a reasonable settlement, and there’s no room to maneuver for litigation leverage. The lawyers’ attitude, which they must demonstrate to their clients, is that there will be no cross-examination later — not even a thought of it. The matter will settle.

Lawyers can bring to the negotiations their knowledge of the law, their ability to analyze problems in the legal context, and their experience in generating options to solve them. These attributes make vital contributions to the success of the collaborative approach. But collaborative law requires additional skills; for most lawyers, these are new skills. Having renounced the possibility of litigation, one cannot employ adversarial techniques — such as threatening to “go to court” — to advance the negotiations. One must find other means of persuasion; in a collaborative practice, the means of persuasion swing 180 degrees to adopt cooperative strategies.

The four participants, with the clients themselves as the principal negotiators, work cooperatively to reach a mutually acceptable resolution of the issues. In order to carry out their roles, the clients usually require a crash course in communication skills and the rudiments of interest-based negotiations. Only so much of this can be instilled across the desk in the office; it is better learned by observing the lawyers at work in the actual negotiation sessions. This is the key to collaborative practice: the lawyers, through their own communication and their assistance in the negotiations, demonstrate how to resolve conflicts and reach agreement. Knowing that they’re modeling techniques for their clients, the lawyers must be careful to act in the way they want their clients to act.

The collaborative method has an immediate appeal to many lawyers. Instead of using confrontation tactics and intimidating demands, the method reaches for the basic goodness in the individuals and looks for win-win solutions. Instead of accepting a byproduct of bitterness as the almost inevitable result of the process, it aims to create a renewed respect for — or a better understanding of — the other party, and a general feeling that the agreement was a job well done. And hopefully, the lessons learned about dignified conflict resolution will carry over to solve future problems.

Of course, not all negotiations will end in agreement, but most will — simply because of the determination of all participants (including the collaborative lawyers) to reach that goal through fair and open dealing. But if, despite all this, settlement eludes them, the parties will have the satisfaction of knowing that they made every reasonable effort, and that the lack of success was not for want of trying. They’ll also have a clearer understanding of the issues involved so that if the matter must be litigated, they’ll be in a better position to instruct their trial counsel on the crux of the case — saving both time and money.

James MacDonald is a retired-partner of the family law practice at MacDonald & Partners in Toronto. He was Chair of the Steering Committee on Collaborative Family Law (Toronto), and was the founding chairman of the national family law section of the Canadian Bar Association and founding president of the Family Mediation Service of Ontario.