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Lawyers' experiences of collaborative family law

University of British Columbia

Collaborative family law recently emerged as a method of dispute resolution where the parties and their lawyers agree to finalize all matters through negotiations only, without going to court. This thesis includes a history and literature review of collaborative family law, drawing comparisons to mediation or litigation. It raises questions about the capacity of collaborative family law to deal with disputes involving power imbalance or spousal abuse. Interviews with twenty Vancouver collaborative family lawyers were conducted to inquire into their practical experiences and whether a paradigm shift in dispute resolution has occurred, as is claimed in some of the literature. The results suggest that collaborative family law in Vancouver is part of a spectrum of dispute resolution mechanisms including litigation, lawyer-assisted negotiation, mediation, and arbitration. Lawyers perceived key elements of the process to include agreement amongst clients and lawyers not to go to court, signing of a participation agreement including a lawyer withdrawal clause, trust between clients, trust among lawyers, trust between lawyers and clients, and four-way meetings. Collaborative negotiation is distinguished by the heightened levels of trust between lawyers, clients, and lawyer-clients, as well as an extension of the role of advocacy to include broader notions of fairness, openness and disclosure. In instances where one or both parties are unwilling, or unable, to participate honestly and respectfully in the process then those parties should be screened out. The collaborative process is being used in practice where high conflict, power imbalances, or spousal abuse exist. Participants highlighted the need for practitioners to be trained to recognize power imbalances and utilize power balancing techniques, or screen clients out of the process. In cases involving spousal abuse, some participants highlighted the need to be specifically trained and experienced in recognizing spousal abuse, but also to include other professionals, such as divorce coaches, to support clients. Others suggested screening abused clients out of the process. Given the private nature of collaborative negotiations, and the risk of abuse and misuse of process, it is important that ethical and professional standards be developed and monitored.

Text

2011-03-11

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http://hdl.handle.net/2429/32367

Law

University of British Columbia

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