Tag Archive: collaborative practice

1. Learning from our Clients – The requirement for a Standard Participation Agreement

   January 9, 2015 6:40 am Comments Off on Learning from our Clients – The requirement for a Standard Participation Agreement

   

   by Marian Gage

   As Collaborative practitioners we receive our most important feedback from the clients who retain us and choose this process.

   I’ve recently had the opportunity to speak with a former Collaborative Practice client about his experience with the process. He was not my client and I will call him “John Smith” although that is not his real name. It was not a good experience. It was certainly not the experience that we, the professionals, anticipate when we promote the process to potential clients. What went wrong? What can we learn from Mr. Smith’s unfortunate experience?

   Mr. Smith started out as all collaborative clients do. He chose a lawyer trained in Collaborative practice. He and his lawyer began communicating with his wife’s lawyer who also advertised herself as a trained Collaborative lawyer. But things quickly took a wrong turn when it came time to sign a Collaborative Participation Agreement.

   “(My lawyer) and I were asked to sign a collaborative agreement that excluded any disqualification clause and demanded mandatory arbitration if we failed to come to an agreement in 6 months.”

   The “disqualification clause” Mr. Smith refers to is the standard provision in the Collaborative Participation

   Agreement that provides that if either party terminates the process and begins litigation both parties must “start from scratch” with new lawyers and the collaborative lawyers participating in the process may not transition to a litigation process with their clients. Among other reasons this is intended to be a disincentive to litigation.

   Those of us familiar with the practice know that this is not only odd but in direct contrast with a process that has the goal of encouraging dialogue and negotiation without the threat of litigation looming in the background.

   Mr. Smith agreed that requiring all clients and lawyers to sign a standard participation agreement would provide clarity about the process up front. In his words, “I was blindsided by the process and would have known more quickly what I was up against if this was the standard practice.”

   Mr. Smith’s lawyer, a well-respected Collaborative family lawyer, attempted to continue negotiations in a “collaborative” manner.

   According to Mr. Smith, “they (his wife and her Collaborative lawyer) were highly aggressive and combative and I was forced to move to a litigation lawyer…my lawyer had continuing difficulties with the other lawyer and we were very close to going to court. I finally signed an unequal agreement to cut my losses.”

   This is not the way we profess to practice, however, there are lawyers who have taken the training that allows them to sell themselves as Collaborative family lawyers. If our clients find themselves in a process with such a lawyer they, like Mr. Smith, will likely have a miserable experience. This tarnishes the reputation of a process we are trying to promote as a better way to resolve family disputes.

   As professionals working in this area we have no control over the lawyer our client’s spouse or former spouse chooses (nor should we) and we have to work with what we are given. If the other lawyer is not prepared to uphold the basic tenets we learn are so important to the process, sometimes the best we can do is explain this to our clients so that they do not walk away thinking that what they experienced was, in fact a Collaborative process.

   For clients seeking out Collaborative family lawyers it is important to ask a potential lawyer how long he or she has practiced in the area, what training they have as a Collaborative practitioner, how many recent cases he or she has done where the parties signed a Collaborative Participation Agreement and what the practice means to him or her.

   Collaborative practitioners are at odds as to how much regulation and oversight this practice area requires. I will not comment on that in this article. Mr. Smith’s case highlights the need for Collaborative lawyers to insist on a standard Participation Agreement that sets out a true Collaborative process.

   By Marian Gage, B.J., LL.B, AccFM
   Berry Gage
   Family Law & Mediation
   165 Cross Avenue, Site. 301
   Oakville, ON
   L6J 0A9
   Tel: 905-338-7941
   Www.bgfamilylaw.ca

2. Moving On…

   February 19, 2013 2:57 pm Leave a Comment

   

   By Marie Nickle

   We have to accept, as Collaborative Professionals, that the Collaborative process is not a panacea.  There are many individuals who simply just want to remain in conflict and all the helping to communicate and constructive problem solving we, as conflict resolution experts, can muster will not work.  There is one simple condition needed to assess whether the Collaborative Process is fitting for the case and that is whether the parties are ready to move on from the conflict.  Simple, in that this is the one condition needed, yet not so simple to ascertain.  Of course, most will say they are ready to move on, but behaviour will dictate otherwise.  Absent influence, intimidation, and so on, a party’s readiness to be objectively reasonable is the indicator as to whether that party is ready to move on from the conflict. As lawyers advising our clients, it is as equally important to direct our clients correctly on process, as on the substantive legal issues. If the Collaborative process is the right process, then the client needs to know.  However, the client also needs to know if it is not.  Regardless, due to the last twenty years of sweeping ADR (Alternative Dispute Resolution) trends, lawyers need to be apprised of what is out there so they are in a position to properly advise and be responsive to their clients’ needs.  This has resulted with more up-front work needed by the lawyer with the client.  This simply forms part of the new way to practice law, and in particular, Family Law.  If done well, the lawyer will understand whether the client is truly ready to move on…or not.

   Marie Nickle is a lawyer and mediator.  She also trains lawyers and other professionals in the Collaborative Process of Dispute Resolution.

   Marie B. NickleThe Galleria 204-1715 Lakeshore Rd. West Mississauga, Ontario L5J 1J6

   Profession: Family Law Lawyer, Mediator, Collaborative Trainer Tel: 905-823-1232 Fax: 905-823-7104 mariebnickle@bellnet.ca www.mbnlegalresolutions.com

3. Client Satisfaction and the Collaborative Law Experience

   June 25, 2012 3:12 pm Leave a Comment

   

   Jessie Lamont & Fareen Jamal

   By Fareen L. Jamal and Jessie Lamont

   Lawyers report the practise of family law litigation to be particularly toxic. The Collaborative Family Law Process creates a more desirable working environment for those lawyers inclined toward problem solving, as opposed to vitriolic litigation. But do clients have the same level of satisfaction with the collaborative process as experienced by collaborative lawyers?

   The International Academy of Collaborative Professionals (“IACP”) recently published their findings following extensive research [Linda Wray, “IACP Research Regarding Collaborative Practice (Basic Findings”), The Collaborative Review 12 (2012): 8]. Statistics reflect that the collaborative process is primarily employed by middle to upper middle class, educated divorcing spouses with children, most of whom use some form of the interdisciplinary approach (that is using financial, family or other professionals) in their seperation. Although the vast majority (86%) of these cases settle within approximately eight months through the collaborative process, there is a small percentage of cases that do not settle or are unsatisfied with the process.

   In terms of actual client satisfaction, approximately three-quarters of all collaborative clients polled in the IACP Professional Practice Survey reported being extremely or somewhat satisfied. Even more notably, the satisfaction clients felt for the process slightly outweighed their satisfaction with outcome.

   Clients indicated that they were satisfied with the manner in which their personal respect and respect for their viewpoint was maintained, the manner in which matters were clearly explained, their concerns and confusion addressed, the effectiveness with which their lawyers communicated, and the assistance they received with the development of their parenting plans and options for various issues.

   Collaborative Family Law creates and nurtures a “safe space” for clients who are frequently, at their most vulnerable, addressing a drastic change in their lifestyle, and experiencing intense emotions.

   Separation and divorce present a number of challenges and the success and satisfaction rates of any legal processes are important to consider.

   Seek out personal experiences of collaborative clients and lawyers before selecting the approach you wish to take. Self-examine what you truly seek from the process, and determine what your goals are. Collaborative Family Law may create an increased chance for desirable outcomes and, throughout the entire process, the greatest degree of client satisfaction.

   Fareen Jamal                                                 Jessie Lamont
   Bales Beall LLP                                              Bales Beal LLP
   2501-1 Adelaide Street East                       2501-1 Adelaide Street East
   Toronto, ON                                                   Toronto, ON
   M5C 2V9                                                        M5C 2V9

   Tel:  416-203-4538                                     Tel: 416-203-8591
   Fax:  416-203-8592                                    Fax: 416-203-8592
   fjamal@balesbeall.com                                jlamont@balesbeall.com

4. ANGER!

   March 16, 2012 2:39 pm Leave a Comment

   By Beverley Martel

   The Collaborative Process is based on full disclosure and mutual respect. Parties and their lawyers sign a Participation Agreement acknowledging that written and oral communication between the parties will be respectful and constructive. At the first meeting the lawyers will discuss “rules of conduct” such as politeness, no interrupting, no name calling and others.

   A collaborative four way meeting, attended by the parties and their lawyers, is seen as a “safe” place to negotiate a Separation Agreement. But what about the angry souse? Is there a place for anger at the collaborative table? How do parties negotiate in a civil manner when one or both of the parties is openly hostile?

   Many couples who are “separated” continue to live under the same roof, usually for financial reasons. Until the issues of support and division of property are resolved it may be impossible for one or both to purchase (or rent) separate accommodation. The laws of Canada recognize that a married couple may be living under the same roof and still meet the criteria of living separate and apart that allows them to seek relief under the Divorce Act or applicable provincial legislation (in Ontario, the Family Law Act).

   Obviously, where there has been a breach of trust, especially in cases of infidelity, living under the same roof is stressful. Tempers flare, in the home and at the collaborative table.

   Counsel can help the parties handle their emotions and can “model” civil, respectful communication. Coaches can be employed to assist either or both parties to deal with hostility. A third party neutral or facilitator can help everyone move past the anger that may be impeding communication and thwarting potential settlement.

   Regardless of their social or financial status people in the midst of a relationship are emotional, sometimes overtly hostile toward one another. Mel Gibson made headlines when his telephone calls to his estranged girlfriend were made public. Going to court does little to calm the waters. In fact, the pleadings served on the other party and filed with the court may inflame an already volatile “relationship.” Angry litigants sit on opposite sides of the courtroom with their respective lawyers between them. There is little if no opportunity for facilitated conversation between these litigants. And if they cannot communicate directly there is little hope of dispersing the anger and moving towards resolution.

   The lawyers in a collaborative file will strive to overcome the anger, not feed it, and may call on other professionals, such as social workers, to assist. This “Team Approach” is one of the benefits of the collaborative process. Obviously if there are real threats to the emotional or physical safety of one of the parties the collaborative model is not appropriate. If evidence of violence or threats of violence emerge during the process it may be necessary to terminate. However, where the hurt and resentment of one or both parties boils over into anger, the process and the players (including lawyers, mediators, coaches or mental health professionals) has much to offer.

   Beverley A. Martel, B.A., LL.B., LL.M.(in ADR)
   Barrister & Solicitor, Mediator, Collaborative Practitioner
   Past President, current Director Peel Law Association
   Director Ontario Deputy Judges Association

   Weir Nakon
   1290 Central Parkway West, Suite 710,
   Mississauga, ON L5C 4R3
   Phone (905)279-7930 (223) Email: bmartel@weirnakon.com

5. Lessons for Collaborative Clients and Practitioners

   February 15, 2012 9:55 am Leave a Comment

   
   by Diane Daly
   In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

   First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

   Second, it illustrates the importance of choosing your collaborative practitioners wisely.

   Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

   The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

   It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

   Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

   The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

   1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

   2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

   3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

   4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

   5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

   Diane F. Daly
   Collaborative Lawyer, Mediator & Arbitrator

6. Collaborative Family Law Practitioners Are The Good Guys!

   January 23, 2012 1:52 pm Leave a Comment

   by Christine Torry

   There is a tendency, I find, for the public to see lawyers in a very negative light, particularly when it comes to the area of family law.  People need family lawyers when they are going through a very hurtful and difficult experience.  They look to the lawyers to help them find solutions to a situation they are hurt and angry about.  Often that is a solution that meets only their individual needs, one person in a family.  If the solution includes going to court, the experience can be hostile, protracted and expensive.  This is generally not directly attributable to the actions of the lawyer.  However, as lawyers are an integral part of the process, it is logical that the person often feels that the lawyers, theirs and/or the other parties’, have contributed to the very negative experience they are having with the other party, with the court system and with the litigation process they are involved in.

   In the litigation arena the parties often have negative experiences not only with their lawyers but also with other professionals involved.  Often financial experts are hired by one or the other party to prove or disprove financial wealth or income, or mental health professionals are hired to conduct an assessment of their abilities as parents.  All of these participants are part of the overall experience which in litigation, I believe, is never positive.  It may sometimes be necessary, but it is never positive.

   Collaborative practice differs significantly from the standard practice of litigation.  Lawyers and other collaborative professionals are trained to do things differently.  Their job is to work as a team with all parties and professionals to find solutions that meet the needs and goals of all members of the family as they move from an intact to a separated family.  Often we describe ourselves as transitioning from litigators to peacemakers.  We use our legal skills in creative ways to solve problems, not to prove a fact or win a case.  Our goal is to help families separate in a way that will respect what they had and how they will deal with each other in future.

   Abraham Lincoln is quoted as saying:  “Discourage litigation.  Persuade your neighbours to compromise whenever they can.  Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time.  As a peacemaker, the lawyer has a superior opportunity of being a good man.”

   My first training in collaborative practice was more than 10 years ago.  Since then I have had the privilege of working with many clients interested in finding solutions to their separation that are focused on their family, and how to resolve their dispute in a way that considers everyone’s needs and goals for the future.  With one particular family, I had the opportunity to meet with the children at a social engagement some years after their parents had separated.  The son, at that time about 18 years of age, proudly introduced me to his friends as “one of the good lawyers”.

   It confirmed my belief that the collaborative process helps all members of the family, particularly the children.

   Christine A. Torry
   Willis & Torry

   35 Queen Street South
   Mississauga, ON, L5M 1K2

7. Divorce ~ The Collaborative Way

   September 22, 2011 9:20 pm Leave a Comment

   I call collaborative divorce the “holistic approach” to divorce.  Many, when faced with divorce, feel that they must have their interests protected and they want to have a lawyer represent them, to fight for their just half.  Unfortunately, in looking for representation, divorcees often don’t realize that they are taken into the process that that lawyer practices without weighing their options.  There are many different processes of divorce and it is important to understand the costs and benefits to each process.  The costs can be in the form of legal or emotional costs.  Emotional costs can stay with the family long after the negotiations end.  It is important to understand which process the lawyer you visit practices so that you own your own process, rather than being directed into one that doesn’t suit your family.

   Pictures speak a thousand words so I thought you might be interested in this short, complementary clip explaining the difference in the collaborative approach from the perspective of collaborative family law lawyers, divorcees, the children of divorce, financial and family professionals.

   Hope you enjoy it!  https://www.peelcollaborative.com/video.html

   Kathryn Jankowski, B.A., CFP, FDS, FCSI

   Vice President, Financial Divorce Specialist

   T.E. Wealth, 26 Wellington Street East, Toronto, ON M5E 1S2 (416)640-8591