Lawyers Financial

ADR allows families to design custom resolutions

Collaborative law’s reach is expanding as it matures, Toronto family lawyer Barbara Kristanic tells

Kristanic, partner with Nathens Siegel LLP, says the increasingly popular alternative dispute resolution method has a relatively short history, but many practitioners have changed their views about the type of client it can work for as they become more familiar with its techniques.

“Collaborative law is fairly new, but at the same time, it’s not a baby anymore, and over the years, it has come to be seen as suitable for more cases than we were initially led to believe it would work for,” she explains.

“Back in the day, lawyers would not consider it for files with anger and/or emotional issues. But what I have found is that as long as the parties are willing to set aside their feelings or at least work on them, collaborative law can be a successful option for them,” Kristanic says.

A recent survey of practitioners by the Canadian Forum on Civil Justice found that almost half of the family lawyers in Ontario offer a collaborative service to clients, though the province still lags behind Nova Scotia, where an overwhelming 86 per cent of family lawyers have embraced the process.

The survey, conducted in partnership with Canadian Research Institute for the Law and the Family, canvassed 160 family lawyers from British Columbia, Alberta, Ontario and Nova Scotia on the use of litigation, mediation, collaboration and arbitration in their practices.

Whether they offered it or not, most respondents strongly agreed that a settlement arrived via collaborative law made it “easier for the parties to co-operate in the future than other dispute resolution processes.”

Kristanic says that couples who opt for collaborative law sign an agreement committing them to work together and do their best to keep the matter out of court. If litigation does ensue, the agreement typically prohibits their collaborative lawyers from acting for them in court.

“It provides a real impetus for the parties to do everything they can to settle, rather than starting over from scratch in court,” she says.

As well as the cost savings associated with ADR processes, Kristanic says couples are attracted by the flexibility that collaborative law gives them in designing their own settlement.

“It works best for people who want to make their own decisions when it comes to their finances and children, rather than having one imposed on them by a judge,” she says. “The parties are agreeing to work toward a solution that will benefit each of them and their children. It’s different from litigation in that it’s not adversarial, which means there are no losers, and everyone can win.”

Kristanic says former spouses with children who acknowledge the need for an ongoing relationship between them as co-parents tend to be strong candidates for collaborative law.

“There needs to be some trust and mutual respect, but if there is some anger or emotion in the way, we can bring in other professionals to help, such as parenting or mental health experts to assist,” she says.   

By contrast, the process may not be suitable in cases where someone is anxious to “stick it to” their ex-partner.

“Sometimes you get people who want it to be acrimonious and will do anything to win. If you’re taking very entrenched positions and are not willing to compromise in any way, it’s unlikely that collaborative law will result in a settlement,” Kristanic says.

“Collaborative law is premised on pledging not to litigate, but also to full and frank disclosure, so everyone can have the information they need to make informed decisions, so if someone is hiding or minimizing assets, it may be an inappropriate case. In serious cases involving domestic violence or substance abuse, we would also look to other, more appropriate options.” 

To Read More Barbara Kristanic Posts Click Here
Lawyer Directory
Haywood Hunt & AssociatesHexigent Consulting (to remain until August 31/19)DivorcemateFeldstein Family Law (post until May 31/19)Greystones Health Jasmine Daya & Co.Will DavidsonGelman & Associates