Collaborative Practice Survey Results

As published in the Ontario Bar Association:

SURVEY FINDS THAT OUTCOMES NEGOTIATED THROUGH FAMILY COLLABORATIVE PRACTICE ARE SATISFACTORY OR VERY SATISFACTORY TO CLIENTS

June 17, 2015
Nathalie Boutet

When my colleague Barbara Kristanic and I started our most recent Collaborative Law case involving mobility (wife and children to relocate from Ontario to Europe), a child with disabilities, a stay-at-home mother and a husband who wanted to change careers, from a very lucrative international consulting business to a steady job that paid significantly less, we seriously paused to evaluate the appropriateness of the clients’ choice of process.

Most readers might be surprised to read that all issues in our case were resolved using Collaborative negotiation. No judge or arbitrator was ever needed to resolve these extremely complicated circumstances.

More importantly, several months after the successful conclusion of the negotiations, the two former spouses were together in the wife’s new residence in Europe, to facilitate the husband’s time with the children after the former wife and children relocated to Europe, and to manage the cost of this expensive new family structure.

This was an extremely complex file because it dealt with uniquely challenging parenting issues; two jurisdictions that have different rules regarding the taxability of paying and receiving child and spousal support; and to top it up; an impossible financial situation of a sincere desire by the husband to change his career – not to deprive the wife of support, but to follow a life dream, with a stay-at-home mother whose career was on hold because of the needs of the disabled child who was relocating to a country in which she may not immediately receive a work permit but a country that was familiar and comfortable to the children.

The team was composed of a pair of smart and engaged clients, two Ontario lawyers – one for each spouse; a neutral parenting expert; two neutral tax lawyers, one in Ontario and one in Europe; and a neutral family law lawyer in Europe.

Three main factors contributed to the success of this negotiation:

The clients’ commitment to saving their children from the trauma of court;
The clients’ reasonable instructions to the team to generate legal avenues that would suit their own particular needs; and
The ability of the two main lawyers to negotiate solutions that at times deviated substantially from the legal model which did not provide the right framework to this family, but that were nonetheless suited for the challenging needs of this family.

It was Collaborative Law’s unique feature of not permitting the lawyers to take the case to court in the face of an impasse that saved this family from disaster, because we found ourselves very close to the precipice on a number of occasions. The clients were committed to finding solutions no matter what, and the team of professionals was determined to finding creative solutions to the impossible set of circumstances.

There are significant differences between the organized, structured Collaborative methodology and traditional lawyer-assisted negotiations. While many families using both these types of processes (Collaborative negotiation and traditional lawyer-assisted negotiation) resolve all issues before going to the trial stage, they type of negotiation that leads to an agreement in traditional negotiation models leaves clients feeling dissatisfied. Aptly said by Professor McFarlane[i]:

…Clients are not offered specialized negotiation techniques and strategies that could heighten their chances of good settlement and expand the range of available outcomes. Instead, negotiation proceeds along a fairly predictable and unimaginative path of an exchange of inflated offers and counter-offers, until the distance is broken down to a point of agreement.

It leaves clients facing an unexpected collapse in their expectations when they make offers to settle that are not as favourable to them as the initial claims and demands made by their counsel …

Professor McFarlane further explains that offers towards the end of traditional negotiations will be much less favourable to clients than the original offer because of a series of unforeseen circumstances including “exhaustion of the parties, diminished financial ability to fund the balance of the case and sometimes external pressures to settle for less in order to move away from the conflict.”[ii]

One of the problems with negotiations that started with people disclosing their starting position is that when we ask people to take a “positioning”, we make it more difficult for them to find mutually acceptable solutions, according to other Bush and Folger[iii]. These authors explain that “conflict generates a sense of self-absorption: compared with before, each party becomes more focused on self alone, more protective of self and more suspicious, hostile, closed and impervious to the perspective of the other person. People tend to become more entrenched in their own position.”

The Collaborative process receives high ratings from clients, both in terms of process and outcomes. According to a 2010 survey by the International Academy of Collaborative Professionals:

Seventy-five percent (75%) of clients were somewhat or extremely satisfied with Collaborative Practice overall. For the 90% of clients whose cases settled, 79% were somewhat or extremely satisfied with Collaborative Practice overall.
Seventy-two percent (72%) of clients were somewhat or extremely satisfied with the outcome of their case. For the 90% of clients whose cases settled, 79% were somewhat or extremely satisfied with Collaborative Practice overall.

40% of the cases reported in the IACP survey were deemed as difficult or very difficult and only 20% cases were viewed as easy or very easy according to the professionals who participated in this survey.

I know of no other family law process that receives such a high degree of effectiveness and client satisfaction.

While the majority of separating families could successfully resolve their separation using Collaborative negotiations, there are nonetheless some cases that are not suited for any type of out-of-court negotiation, not just Collaborative negotiation, and are more likely to end up in front of a judge.

According to the IACP survey, it is not the degree of difficulty of a case that prevents a successful conclusion of the negotiations, rather, the following factors were more likely to have been present in the cases that did not settle:

Clients rarely or never trusted the other client or one or more of the other professionals
Cooperation between clients was always or almost always impossible
One or both clients acted unilaterally
One or both clients’ expectations about the outcome were unrealistic
One or both clients obtained outside advice
Mental health issues of one or both clients

Since these factors are not present in the majority of the separated families, it is easy to conclude that most families should be given the choice to select Collaborative Practice, the only process I know of that consistently produces good results in a respectful atmosphere.

Veteran family law lawyer, Nathalie Boutet is a negotiation expert whose practice focuses on keeping divorces out of court. She is based in Toronto. www.boutetfamilylaw.com or [email protected].

[i] Macfarlane, Julia. The New Lawyer: How Settlement is transforming the Practice of Law. UBC Press: 2008.

[ii] Ibid.

[iii] In the book: “The Promise Of Mediation: The Transformative Approach To Conflict”, by Robert A. B. Bush and Joseph P. Folger. Jossey-Bass, 2005.

Special thanks to Barbara Kristanic for her collaboration in the case referred to in this article and for her helpful editing.