Beyond Collaborative Family law
Over the last decade a great deal of attention has been given to Collaborative Family Law as the ADR alternative to family litigation.
The process starts with an agreement (Participation Agreement) not to go to court, and to negotiate an interest based settlement without the intervention of a third party adjudicator. A specialized team of coaches, whose skills range from emotional therapy, to financial planners and child experts, supports the parties. In the event that the process fails, the parties and professionals are required to withdraw, and the parties start afresh on a litigation track.
The clear advantage of the Collaborative approach is that it preserves relationships between the parties. Hard fought court battles seldom leave the participants with a positive feeling about their opponent. Where there are children, the coercive impact of partisan conflict holds minimal benefit.
So given the obvious advantages of collaboration rather than confrontation, why has it not expanded into other areas of law?
In her October 2010 article, Growing Pains, published in Canadian Lawyer Magazine, Judy van Rhijn analyzes the lack of success in transferring Collaborative Practice from family law to more general practice.
Ms. Rhijn’s most notable example of the expansion of collaborative law practice is the formation of the Collaborative Estate and Trust Lawyers Society of Alberta (CETL).
In 2003, a group of Trust and Estate lawyers organized the CETL after they recognized similarities between the parties in matrimonial disputes and estate disputes involving family members. Both are often characterized by emotional based decision-making.
The Alberta experiment seems to have died an uncertain death. While a number of lawyers list their membership in CETL on their websites, the group itself has no web presence.
Despite a great deal of effort, CELT has failed to thrive. Similar attempts have met with equal success.
Ms. Rhijn identifies the major stumbling block as the need for the professional teams to withdraw if the process fails. Anne de Villars, co-founder and president of CETL, states in the article:
“The thing halted itself because of the requirement that if it doesn’t work you have to get off the file.” Ms. de Villars then reported, “In the collaborative law community, there is some discussion whether that clause is required. Maybe it’s not a hallmark in Estate Law.”
Other groups of lawyers have attempted to customize the Collaborative Process and apply it to their local environment with varying success.
The restrictive nature of the Participation Agreement is a major factor affecting the expanded application of the Collaborative Law process. However, training is also a factor. Despite the efforts of the International Academy of Collaborative Professionals (IACP) – Collaborative Family Law’s governing body – there is very little training outside of the family law domain.
Before going into too much analysis of why collaborative practice is not spreading to other areas of law, it is worth reconsidering the original question:
So given the obvious advantages of collaboration rather than confrontation, why has it not expanded in to other areas of law?
The first problem is the lack of empirical evidence to support the efficacy of Collaborative Family Practice. The “obvious advantages” are anecdotal and mainly propagated by proponents of the process.
The second problem is the widely varied definitions of Collaborative Process. As Ms. de Villars notes, some key aspects of Family Collaborative practice may not be transferable to other areas of law.
For most Collaborative Family Law practitioners, the mutual withdrawal clause is key to the process, because it acts as both a carrot and a stick. The carrot is the desire to keep “your team” together and not waste the money already spent. The stick is the fear of losing your supports and facing a full-scale litigation action.
The theory is that the coercive nature of the mutual withdrawal clause motivates the parties to reach settlement. However, this view ignores the front-end motivation to avoid full-scale litigation.
Like many ADR options, Collaborative Law’s weakness is the inability to impose finality. There are also some value based issues which cannot be negotiated and require third party adjudication.
In family law, a child’s attendance at private school is often such an issue. It is very difficult to negotiate with a parent who is ideologically opposed to private school. In estate cases, a particular chattel, often jewelry, cannot be negotiated, as the emotion value and the uniqueness of the item cannot be quantified or replicated.
Some practitioners are experimenting with med/arb, or straight arbitration, to give the parties certainty around final determination. However, there is opposition on the basis that arbitration runs contrary to the fundamental idea that the parties will settle their dispute without recourse to a third party adjudicator.
Collaborative Law’s strength is that it embodies the commitment to settle disputes without resorting to full-scale litigation. Its weakness is that it is an all or nothing approach.
For Collaborative Law to become a dominant ADR model, it will need to deal with practicality of the Participation Agreement, and develop a mechanism for resolving non-negotiable issues.
For Ms. van Rhijn’s article, please follow the link below:
Michael Butterfield JD, C.Arb, C.Med
Collaborative Lawyer and Mediator