Family law: Collaborative process helps keep the peace during breakups

When couples break up, they rarely need help fighting. It’s peacemaking that eludes them — which is where collaborative law practitioners and their teams of child specialists, neutral financial experts, divorce coaches and health professionals come in.

Their aim is to help families find peaceful resolutions for the many upheavals un-coupling involves, but without expensive and sometimes destructive court battles.

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Collaborative family law practitioners are “professional peacemakers,” says Lisa Alexander, secretary of the B.C. Collaborative Roster Society.

“When I tell clients that, their faces light up and they really get it. Most people find it such a relief to end up with a professional who is committed to being part of the solution, not part of fanning the flames of a fight.”

Court battles over family breakups can be destructive on many fronts, she said: “Economic, emotionally, aunts/uncles/grandparents getting left behind, the toll it takes on one’s health and employment.”

The drafters of the Family Law Act, which came into force March 18, were influenced by collaborative law practitioners, she said, noting that the legislation gives court last in its list of options for dispute resolution.

It marks the first time that the successful but unfamiliar concept of collaborative law has been recognized this way, said Victoria family lawyer Robert Klassen, who initiated the practice here in 2000.

“In the collaborative process, we sign an agreement with the clients not to go to court,” he said.

Instead, the goal is to allow both parties to work out what is fair for all with guidance from professionals in various fields, said Klassen, giving the example of a recent five-way meeting of two spouses, two lawyers and a financial planner working with both parties.

Not only does it make for better arrangements, but it costs considerably less and is more creative.

He estimates a two- or three-day trial at the Supreme Court of B.C. costs $40,000 to $60,000 per lawyer. A collaboration bill can amount to a tenth of that.

When people phone him wanting to know how to respond to the document used to start a court proceeding for divorce, he asks to speak to the lawyer for the other spouse, and then requests a hold on the proceeding to see if they can work together collaboratively.

Since he started the collaborative group, he’s worked on 160 such agreements, with only a handful referred to other lawyers who will take a case to court.

“It’s transformative,” Klassen said. “Not only for only the parties, but for the lawyers, who can see that what they’re doing is very positive.”

The lawyers for each party are not jockeying for a superior position but for the best outcome for the whole family.

But it won’t work if one spouse is determined to lie, falsify or keep relevant information from disclosure, he said. For those willing to be upfront, it’s best not to make long-term decisions when they feel angry, bitter or betrayed.

In collaborative law, one of Klassen’s first recommendations can be for each spouse to seek help from a divorce coach to help handle the emotional side of splitting up.

“They’re going through anguish,” said coach and psychologist Don Deines. “It’s very, very hard on people. It’s very intense.”

Many people are surprised to call a lawyer and be referred to a divorce coach, he said. Some people are lukewarm, extremely distressed and want a lawyer to take their side. But Deines has found the collaborative process can make some clients feel so supported that the marriage ultimately survives.

“In collaborative law, one party’s not working against the other,” Deines said. “You’re not trying to build evidence against the other party. Both coaches support both people. You’re trying to go through the transition with as little pain as possible.”

Coaches also look for common ground where the couple can join forces and work together with a view to coming through the break with what’s best for any children, who he called “the real big winners” of the collaborative process.

A child specialist can hear what children have to have say, meet with both parents and develop a co-parenting plan that will not be set in stone, but monitored to see whether it’s working and changed if it’s not.

“The kids aren’t divorcing the parents, but if it’s a high-conflict situation and one parent is slagging the other, the kids are in a no-win situation,” Deines said.

“That’s why this process was developed. Because the adversarial approach ruined the couple. They were already in distress but it completely wrecked families.”

One of the stickiest parts in splitting up is developing a strategy for parenting.

“You can’t do that in a court of law,” Deines said. “The couple have to survive the transition of the separation intact enough to work with their partner. They’ve got to heal from the trauma of that transition and that’s totally where we’re there for them.”

The new approach of the Family Law Act is definitely not a cynical attempt to off-load government court services to the private sector, said collaborative family lawyer Trudi Brown.

“Resolving things out of the courtroom is a much better way to go especially if it involves children,” she said.

“One of the benefits of collaborative law is that you actually don’t have to apply the law if you like the resolution you work out with your partner.”

Mediation offers another alternative

B.C. lawyers have been able to qualify as family-law mediators since 1985. And mediation — which involves a lawyer or trained mediator who does not take sides — is a well-known way of resolving disputes without going to court.

The process capitalizes on consensus-building and is “probably a simpler process than collaborative law,” said Victoria lawyer Eugene Raponi, whose practice largely involves mediation. He is also is on the roster of the Victoria Collaborative Family Law Group.

In collaborative law, each spouse has a lawyer and a team of divorce coaches, financial and child specialists to draw upon. Both spouses sign an agreement not to go to court.

Couples in mediation can end up in court but try to avoid it. When Raponi acts as a mediator, the spouses and their respective lawyers schedule a full-day session with him to put together an agreement.

“People sign and go away exhausted but usually satisfied. That saves an enormous amount of court time,” Raponi said. Mediation can bring people together in the same room while controlling the risks, and the resulting discussion can conclude the matter without court, he added.

“It’s quite possible to mediate all issues arising from a marriage without lawyers,” Raponi said, although as a mediator, he always encourages each party to get independent legal advice before signing off on the agreement.

However, divorce, which is the order dissolving the marriage, can be obtained only by an order of the court, he said.

“Usually, parties in mediation will resolve all their issues — parenting, child support, spousal support, property — and then get an uncontested divorce,” he said.

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