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Wednesday, July 7, 2010

Collaborative law - the alternative to duking it out

If you've ever been unfortunate enough to be involved in a personal legal dispute, you've probably wished there was a better way. Litigation is expensive, time-consuming and, let's face it, pretty unpleasant at times. Fortunately, divorce, custody battles and estate battles don't always have to be done the hard way.

Collaborative law is an alternative way of settling legal matters. It has been extremely successful across Canada and the USA and its popularity continues to grow.

The basic idea behind collaborative law is that the people on both sides of the dispute, along with their lawyers and any other advisors (e.g. accountant) form a team that is determined to find a solution to the issue together. Both sides agree in writing that they will not resort to the courts. If for some reason the matter simply can't be resolved and someone wants to take it to court, both sides have to get new lawyers and start from scratch.

One of the things that makes this system workable is that lawyers who call themselves "collaborative lawyers" must take specialized training in negotiation and mediation and must become members of their collaborative law association. In Alberta, to learn more about the association or to find a collaborative lawyer in your area, click here.

It's a pretty radical departure from what the legal system has traditionally done for individuals. Our system is set up to be adversarial, and, in my opinion, presupposes that people have tried all available methods of dispute resolution before resorting to the courts. However, we all know that there are plenty of lawsuits out there where nobody actually tried any dispute resolution before going to the courts, so collaborative law is a welcome addition.

Collaborative law is mainly used for family law issues such as divorce, custody and child maintenance. But it does also have relevance to wills and estates disputes. One of the things I found so disheartening about estate litigation (which I practiced for many years in my pre-bank days) was that families never really recovered from the effects of suing each other. The fallout tended to be permanent. If more families could agree to reach a collaborative settlement, this would be a great benefit to them.

I know that some lawyers are finding ways to apply collaborative law to estate issues, and I hope to see more of that in the future.

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