Growing Pains - why hasn't the collaborative law approach caught on for estate disputes?

A new article in Canadian Lawyer magazine talks about the fact that while collaborative law has been a huge hit for family law disputes such as divorce, custody and maintenance issues, it hasn't yet caught on for estate disputes. Many lawyers, including me, believe that collaborative law could be a wonderful idea for families who have important estate issues to sort out but who really don't want to endure the emotional and financial stress of fighting it out in court if at all possible. So what's the problem? Why hasn't it worked out better for estate disputes? Click here to see what Canadian Lawyer magazine has to say on the subject.

To read my earlier blog post that describes collaborative law, click here.

Can we settle an estate dispute without suing?

Having spent several years fighting estate battles for my clients, I can attest to the fact that estate litigation is expensive, lengthy, stressful and exhausting for the clients (and no piece of cake for me either). Money and time are not the only things that take a hit; family relationships are often damaged by the very emotional fighting. Litigation is adversarial by its very nature and it isn't designed to let the parties stay friendly. Those who are looking for a better way to handle an estate dispute, take heart, as there are options, known as alternate dispute resolution (ADR).

1.  Traditional negotiation can be effective. Each party is represented by a lawyer who speaks for him or her. There is no judge involved, and no neutral third party. Negotiation gets harder as the number of parties increases, though it is still much faster and cheaper than fighting it out in court.

2.  Mediation involves a neutral third party who facilitates a discussion among all of the parties. This is an informal method of discussing the issues and reaching a mutual agreement. It helps to preserve family relationships if everyone is working together. Lawyers are often involved as advisors but that is up to the group to agree on. The third-party mediator does not make ruling; his or her job is to defuse tense moments and keep the discussion on track. It's important that everyone with a stake in the mediation buys into the concept and gives it an honest try.

3.  Arbitration is more formal than mediation but less formal than going to court. The role of the arbitrator is different than that of a mediator, in that the arbitrator makes a ruling on an issue after hearing arguments and evidence. The arbitrator is usually an expert in Wills and Estates, whereas a mediator need not be an expert in the subject matter. The parties agree ahead of time that they will abide by the arbitrator's decision, but if the arbitrator makes a mistake or one of the parties was deceitful during the process, the ruling can be reviewed by the court.

4.  There is a variation on mediation and arbitration that combines the two. Essentially, there is a mediator who facilitates a discussion in the usual way. If it becomes apparent that the parties are never going to be able to reach a resolution on their own, the mediator changes roles and becomes an arbitrator. This gives him or her the ability to make a ruling.

5.  Collaborative law is used a lot with family law matters like child custody, but it can also work well for estate disputes. It's much like a group negotiation. Lawyers who are "collaborative" have taken special training, and agree to a special arrangements whereby the lawyers and the clients agree not to go to court. If negotiations break down and someone wants to proceed to court, each party must get a new lawyer and start over. Sometimes knowing that the traditional fall-back of going to court is not available can motivate people to settle matters. Not all lawyers practice collaborative law.

6.  All of the above suggestions are aimed at people who have not yet begun a dispute in court against an estate. However, even if your papers are filed and you're waiting for a court date, you can still try ADR ideas. If none of the above suggestions seem likely, you may be able to access judge-assisted ADR. This comes in many forms, include pre-trial conferences with the judge, case management conferences, mini-trials and getting non-binding decisions from the judge before trial. There are plenty of rules and regulations about how to get and use judicial ADR, including the fact that the judge will always have some kind of initial meeting to decide whether he or she believes the case to be a good candidate for alternate dispute resolution.

To find out more about these options, talk to your lawyer or court personnel. Or, search online for "alternate dispute resolution", "judicial dispute resolution" or "collaborative law" together with your province or territory. Also see my earlier post here about collaborative law.

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.