PARTING WAYS, OUT OF COURT

Collaborative process keeps the mudslinging and dirty laundry out of the picture

Jeff Holubitsky
The Edmonton Journal
Published Edmonton Journal: Sunday, June 11, 2006

EDMONTON - After 23 years in an unhappy marriage, an Edmonton businessman had never heard about collaborative lawyers.

"My ex-wife introduced it to me as a way of proceeding, and I was pretty much willing to do anything she suggested to make this happen", he said, on the condition his name not be used.

Like many divorcing people using the services of the specially trained lawyers to reach complicated settlements without going into a courtroom, he appreciates the anonymity collaborative lawyers bring. A divorce stays out of the public eye.

"The trust between myself and my ex-wife was very low, and this seemed to be a reasonable way for someone else to come in and adjudicate what's a real issue and what's just a red herring," he says.

In the collaborative process, which is also used in settling estates, each party brings a lawyer to the negotiating table.

They also sign an agreement setting out strict rules of conduct. Designed to deal with issues such as child care or finances, accusations and dirty laundry are prohibited.

"Sometimes when either I or my ex might say something, generally speaking, both lawyers would say that doesn't make sense," the businessman says. "That carried a lot of weight when it came from your own lawyer."

His lawyer, Marla Miller, is one of about 40 lawyers in the capital region who have taken courses to become registered collaborative family lawyers. They firmly believe the best solutions in most divorce or estate disputes should be solved outside the courtroom.

"In the collaborative law process, it is the clients' responsibility to come up with their own answers," she says. "The lawyers' responsibility is to make sure all of the information is on the table in a way the client can understand."

If the couple fails to reach an agreement, both collaborative lawyers are fired, and the case will likely go before a judge for decisions.

"There are really few people who will call a lawyer and say I really want to go to court," Miller says. "It's a really expensive, dragged-out battle, and I'm going to expose all of my personal and financial information to everybody.

"Most people will say, no matter what else happens, I don't want to go to court."

Collaborative law has evolved since it was first introduced into Alberta about six years ago from Vancouver and the United States.

An early criticism was that collaborative law forced lawyers to become psychologists and social workers. "But our job was not to do therapy," Miller says.

Today collaborative lawyers work with a team of specialists, including divorce coaches, child specialists to speak for the children, and financial experts.

Still, collaborative law is not for everyone.

It's not necessary for adults without children, for instance, who are simply out to equally divide assets they have in their home. Substance abusers or alcoholics and as well as those with huge personality differences, may not be rational enough to follow the strict rules.

"You attack problems, you don't attack people, " Miller says. "We want to have a resolution that is respectful, we want them to co-parent the kids, and not feeling that they've been taken advantage of or have taken advantage of the other side."

The strategy appears to be working.

Queen's Bench Justice Marguerite Trussler says the number of divorce cases making it to court has fallen since the introduction of collaborative law in Alberta.

"At least 80 per cent of divorces come by our desk and we sign them without them ever being to court ... and it might even be a little higher," she says. That number used to be about 50 to 60 per cent, though Trussler also gives credit for the reduction to a course on parenting after divorce.

"I am of the view that whenever parties can resolve things by themselves it is better than having a third party tell them how to run their lives," she says.

Although she says the collaborative process is still essentially adversarial because there are two sides to the debate, she says it avoids mudslinging that can happen in court.

"Most mature adults don't like another person dictating what they are going to do in their personal life."

Judges still look through all court orders on divorce, she says, particularly to ensure children are properly looked after.

"On custody and access, if they have come to an agreement, we will usually accept that agreement," she says. "I think the collaborative process is good because it keeps people out of court in an adversarial situation."