I was contacted this week by a couple whose separation I mediated almost two years ago. When we were almost done they moved on to a pair of collaborative lawyers to tie up financial loose ends.
They are asking me now to help them complete that agreement without lawyers. They explained that the two “collaborative lawyers” they hired had made no progress, and barely communicated with them over the intervening two years. The couple is furious, and wants nothing to do with lawyers of any kind.
This case dramatically drove home the truth that just because a lawyer calls themself collaborative does not mean they are non-adversarial, efficient or responsive.
Collaborative family law is a relatively new approach to separation and divorce in Ontario. To quote google: “The goal of collaborative family law (CFL) is to allow parties, in the midst of a divorce or separation, to work collaboratively with each other, their lawyers, and other third-party specialists to reach a mutually acceptable resolution of the issues stemming from the breakdown of their marriage.”
Most importantly, they accomplish this without going to court. In fact, if the collaborative process breaks down and clients do go to court, lawyers who have signed a collaborative agreement are required to resign from the case. This ensures commitment from all participants.
In principle, this is far superior to old style, adversarial courtroom combat. Finding a “mutually acceptable resolution” allows decision-making to reside with the clients, and with their lawyers, rather than handing that power over to a judge.
I work closely on a team with two collaborative lawyers who engage promptly in a manner that is truly collaborative. They communicate regularly with clients and other professionals on the team to ensure that a lasting, comprehensive agreement is reached in a few months. Each lawyer is still obligated to work zealously for the welfare of their client. But they see the bigger picture to consider, including the best interest of children and emotional interests that may be as important to their client as the money. They listen to their client, provide legal advice, then pass the case along to me, as the facilitator, to help the clients reach a settlement within the legal model that is unique to their own situation.
They even offer a flat rate package, so clients know in advance exactly what their costs will be, provided undue conflicts don’t arise.
What’s the bottom line? Should you be seeking a collaborative team?
My advice is “yes IF”.
Yes if you and your Ex are genuinely committed to a peaceful, out of court settlement.
And yes if you get satisfactory answers to these questions before signing on to any collaborative law agreement:
1. Do you offer a flat rate fee? If not, what is your hourly rate?
2. How regularly will you communicate with the other lawyer?
3. How regularly, and by what means, do you communicate with me?
4. Do you accept terms in the agreement I might want that don’t follow your legal advice?
5. Will you include less expensive neutrals in the process, such as a mediator or certified divorce financial expert?
So now I’m back working with the frustrated couple, to help them finalize their agreement.
I have informed them not all lawyers are inefficient or poor communicators. I will advice them to hire new ones to review their settlement, once we complete it. Although a divorce can be obtained without legal advice, they will have much greater protection if they do. Only this time I will make sure I refer them to lawyers who I know can be trusted to complete it promptly and efficiently.
ABOUT THE AUTHOR
Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.
