8/10/2019 3. Putting the Family Cards

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t ime consuming.

Participants have often

made their mind

u p

before-

explained in a n article in

the Apr i l/May 2002 edi tion

of LawNow. Very briefly in

collaborative fam ily law the par-

tics agree to nego tiate o n the bas17

that neither party will resort to the

litigation process.

and abo ut what they want

ime Lonwtningproress. Ready-

Ho w does on e manage a collaborative

family law file or more accurately how does

on e keep i t within the collaborative law

process?

Collaborative fam ily law is process oriented

and part icipants must take i t o n fai th th at fol-

lowing the process will lead to resolution. T h e

resolution or outcome all things considered

will be superior to the ou tcome th at would

have been achieved throug h litigation. T h e dif-

ficulty find as a Registered Collaborative

Family Lawyer is keeping th e participan ts

myself includ ed within the process to be fol-

lowed for collaborative family law.

Everyone has a tendenc y to revert to posi-

tional negotiation. For those unacquainted

with the term positional negotiat ion occurs

when each party sets out his o r her posit ion

which is usually quite an entrenched position.

Any sett lement would be som ewhere on the

con tinu um between the two posit ions. Extreme

positions are usually taken as part o f the bar-

gainin g strategy we have all Icarned.

positional negotiation an d instcad at tempts to

use interest based neg otiat ion and mediation

principles. Interest based nego tiation is an exer-

cise

in

first ascertaining wh at each partys eep

In co ntrast collaborative family law rejects

on the issue

of

spousal

\~\ Y

sup por t the deep interest is

never rcally just som e dollar figure.

It is almo st always financial stability or alterna-

tively the need for a clean break an d certainty.

O nc e those deep interests are identified

through a long process of probing the parties

would then move on

to

identifying every pos

sible optio n th at m ay satisfy the deep interests.

Thr ou gh the process of probing to identify

deep interests an d generating options parties

often begin

to

understand where their spouse is

corning from. O n e of the almost mantra-l ike

phrases used in Collaborative Fam ily Law

train ing is seek first to understand then to be

understood.

Go ing through the process of probing for

deep interests and generating options is often

on the issue of spousal support the

deep interest is never really just some

dollar figure . It is almost always

financial stability or alternatively the

need for a clean break and certainty.

negotiation where we

all

seem m ost familiar.

track after positions have been put on the

table c n be extremely difficult.

Anoth er thin g that often goes off track in a

collaborative family law file is the principle of

transparency. Th at is tha t there be as little

conversation between lawyer an d client

y

Ge tting th e collaborative process back on

c

behin d closed do ors as possible.

A

prominent

collaborative family law practitioner and

trainer has stated that she finds it most

helpful to give legal advice in the presence of

the other party an d his or her lawyer. In that

way legal advice can be tempered or

expanded upon by the other lawyer. Nor

knowing what informat ion the other p r t y

has is like negotiatin g

in

a vacuum and will

eventually lead back to positional nego tiation

As yo will have gathered collaborative

family law involves a process which does n ot

come naturally to participants. Managing to

keep clients an d yourself from exercising the

natura l inclination to use positional negotia-

t ion and keep certain information

confid ential. is a difficult task.

G o r d o n A n d r e i u k is a R e g i s t e r ed

C o l l abo r a t i v e Fam i l y Law y e r p r ac t i s i ng

w i t h t h e L a ur ie r L a w G r o u p in

Edmonton A l b e r t a .

D e c e m b e r

Z O O Z J a n u a r y

2 3 1 awNow 13