Collaborative Law - Marla S. Miller

Resources

Suite 100, 4918 - 51 Street Camrose, Alberta, T4V 1S3, Ph: (780) 672-8851 Fax: (780) 672-4707

home

lawyers

services

resources

history

camroseLaw.com is a service of Fielding & Company LLP

COLLABORATIVE FAMILY LAW
By Marla S. Miller*

One of the most common feelings experienced by people in a relationship breakdown is that of loss of control. Living arrangements change, financial demands are different, emotions of each of the parties and their children run high, and even social relationships are affected. These situations can often lead to anger, fear, and depression, which often seem to exacerbate the feelings arising out of the loss of control. That feeling of being a victim to the whirlwind of separation and/or divorce can be compounded when the parties become subject to the formal legal process and the courts. When the court is involved, the parties have much less control over the outcome and major decisions affecting their lives and the lives of their children are left to the decision of a third party, namely a judge. Although knowledgeable and committed to determining the best answer according to the law, judges are strangers to the parties and their children. As a result, judge-made decisions are often not those that the parties themselves would have come up with if they had been able to make their own joint decisions.

We intrinsically know that when we are angry we do not make good decisions, and we rarely make decisions which will take into consideration the needs or interests of the party who has angered us. Think about the last time you were angry with your child’s behaviour, and at the same time the child asked for something as ordinary as permission to go out. Likely your answer was a resounding “NO”, just because you were angry and were not open or able to make a considered decision. In light of that, it is no wonder that parties to a relationship breakdown, who may come to the legal process with their own anger, or who may feel frustrated and angered by the legal system and the time, cost and stress involved, are often unable to reach reasonable resolutions to their own situations in a reasonable amount of time and cost.

What can be done about the anger? Experienced Family Lawyers across Canada and the United States, who have been involved in dealing with couples and families going through relationship breakdowns and have seen the demands and costs of turning to litigation and the courts for resolution to these matters, are more and more convinced that there is a better way to resolve these matters. These lawyers have turned to a practice formally known as Collaborative Family Law.

First started in 1990 in Minneapolis, Minnesota by a Family Lawyer named Stu Webb, Collaborative Family Law took off in some American states (most notably California), and then moved up to Vancouver and Alberta. It is now rapidly spreading across the rest of Canada and the United States, and there are Collaborative Family Law groups and associations throughout Canada and the U.S. Alberta has become one of the leaders in the Collaborative Family Law movement.

The basic concept behind Collaborative Family Law is that the two parties of the relationship breakdown and their two lawyers agree to resolve all matters without going to court or threatening to go to court. The commitment to resolve matters out of court is so strong and so vital to the process that the parties and the lawyers all sign a formal agreement, called a Participation Agreement, where the parties agree to follow the Collaborative Law process. The prohibition against resorting to the Court in the Collaborative Family Law process is so fundamental to the process that if one of the parties wishes to proceed to court, then both Collaborative Family Lawyers must resign from representing their clients and both of the clients must then find two new lawyers to conduct the litigation. In addition, unless otherwise agreed to by the parties, any experts retained during the Collaborative Family Law process and their reports are off limits to both parties and cannot be relied upon in the court proceedings.

Because the stakes are so high to the parties, lawyers in Alberta wishing to practice Collaborative Family Law must undertake additional training in Collaborative Family Law, Mediation, and Interest-based Negotiation Techniques, and be members of their local Collaborative Family Law Associations to earn the right to be called a Registered Collaborative Family Lawyer. All of this is to provide the lawyers with additional settlement skills and attempt to ensure that Registered Collaborative Family Lawyers all adhere to the same principles of negotiation and settlement. Every effort is exerted to assist the parties in reaching settlement.

continued