ARTICLES


Collaborative Law, a Less Stressful Approach to Separation and Divorce

By Marie B. Nickle, LL.B LL.M

Separation is painful. Particularly where children are affected. Court is largely designed for logical thought, not strong emotions. It is difficult to be logical when emotions run high. A lawyer can bring value as he or she does not carry the emotions that interfere with logic. He or she just deals with the law. The problem is that, in doing so, matters can get nasty, and expensive, and stressful, and long, and frustrating. Children, whose parents are involved in protracted court litigation, suffer immeasurably due to low self-esteem and other related problems. The legal profession, and particularly those involved in family law, recognize that the legal adversarial system does not work well for families. Collaborative law is a model of dispute resolution that has evolved since the early 1990’s to address this problem. It was started by a lawyer in Minneapolis, Minnesota and has since gained in popularity worldwide. It is a process where parties to conflict, and their lawyers, sign an agreement to resolve the issues without going to court. Then theysit down together to brainstorm solutions that will bring maximum benefit to all. The solutions may or may not be legal solutions. It is up to the parties. The lawyers advise of the law and assist in negotiations in an interest-based fashion, instead of a positional approach, traditionally used by lawyers. Negotiations include not only monetary, but non-monetary benefits. Collaborative law can include the involvement of not only lawyers, but other professionals, such as therapists, social workers, financial experts, and so on, who all work as a team to problem solve for the family. Collaborative lawyers are trained to be aware of the more sensitive and emotional aspects present in conflict, and particularly family conflict. It is a holistic approach to conflict resolution.

Marie B. Nickle is a lawyer in south Mississauga, Ontario Canada. She has a Master’s Degree in law, with focus on alternate dispute resolution and interest-based negotiation. She is also a trainer of lawyers, and other professionals, in the Collaborative law method of dispute resolution

The Collaborative Process: A One-Stop Shop for Resolving...

Marie Nickle LL.B LL.M Acc.Fm

The Collaborative process is my favourite alternate dispute resolution process. Unlike mediation, it is a one-step model. Mediation requires two steps: one to reach a consensus with the mediator; and two, to receive legal advice from lawyers who will turn the Mediation Report into a legally binding document. The Collaborative process is a full service model as it includes all necessary professionals, including lawyers. When lawyers have been involved from the outset they understand the thought processes going into the construction, unlike many mediations where lawyers are not present during the mediation sessions and are handed a Mediation Report cold, without any context as to what is important to the parties and how the agreement captures the optimal results, crafted by the parties themselves. Throughout the Collaborative process, the lawyers are ensuring the agreement meets all the necessary legal requirements and that the clients are legally protected, while the other professionals are providing other necessary and valuable services for the parties. The Collaborative process can be thought of as the process that is a one-stop shop for resolving family conflict upon separation.

Marie Nickle Law bLAWg Mediation: A Two-Part Process

Mediation is a two-part process requiring a Mediator and a Lawyer for each party. The process needs to be clearly explained as such. Part 1 involves the Mediator assisting the parties to reach a consensus on all the issues. Part 2 involves the Lawyers providing legal advice to each of the clients on the terms contained in the“Mediation Report” or “Memorandum of Understanding” generated by the Mediator. Far too often, parties have only a partial understanding of what the Mediation process involves. They often believe the “Mediation Report”is all they need and are surprised to find out that lawyers are an essential part of the process, to provide necessary legal advice to each, and also to assist with the formalities required to turn the Mediation Report into a legally binding Contract, Minutes of Settlement and/or Court Order. If the Mediation process is not properly explained to interested parties at the outset, as a viable means to resolve their disputes, they will be very unhappy to find out, after they have spent hours working on terms, that not only are there additional costs to that of the Mediator, but that additional negotiation may be necessary to tweak the terms to fully protect their individual interests going forward. What they are paying for overall is a legal Contract, signed, sealed and delivered, that will withstand a legal challenge in the future. A Mediation Report/Memorandum of Understanding is not such a document and the parties need to understand this entirely at the outset so as to maintain the integrity of the Mediation process. The bottom line is that Lawyers are essential to the Mediation process and hopefully Mediators and Lawyers can better connect in this regard to provide a much needed meaningful service to many disputing parties, both inside and outside of the court system.

Marie Nickle is a Lawyer, Mediator and Trainer. Her office is located in the Lorne Park, South Mississauga area.

Lawyers in the Mediation Process: Lawyer Assisted Mediation

By Marie Nickle LL.B LL.M Acc.Fm

Lawyers representing clients in the Mediation process is called “Lawyer Assisted Mediation”.  As a mediator, some of my best mediations have involved lawyers being present in the sessions. As a lawyer some of my best cases have involved my representing a party in a mediation process. Both lawyers and mediators working together create, in my opinion, one of the best resolution processes available for disputing parties. The lawyers provide the needed legal advice to their clients as part of the mediation process. In assisting separating couples, mediators cannot ignore they are operating within a complicated legal framework wherein there is only so much creativity parties can exercise.  A reality for the mediation process and mediators is that lawyers are necessary to provide the needed legal advice and also to generate a legally binding document once consensus has been reached between parties in the mediation sessions.  As well, lawyers should accept and acknowledge that mediators perform an extremely valuable role in assisting parties to accomplish the very time consuming and expensive part of any family process, which is arriving at consensus.  As such, the mediation process requires both mediators and lawyers performing their roles and working together.  Unbundled legal services is a new reality for lawyers borne out of a broken legal system for separated families. Offering services by way of Lawyer Assisted Mediation to mediation clients is an effective and timely way lawyers can move into being and staying relevant in an ever changing alternate dispute resolution environment.  In my opinion, the integrity of the family mediation process is best maintained with both mediators and lawyers working together to provide a complete and effective alternate resolution process for separated families.