Michael Ford (post until Oct. 31/19)
Family

Aulis launches collaborative family law practice

The traditional court system just makes many family disputes even worse, says Toronto family lawyer Patrick J. Aulis.

That’s why Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation, recently launched into collaborative family law after 13 years practising traditional family law, which can cover divorce, separation, custody, child support and spousal support, and division of property.

He says he’s witnessed first-hand how the court system affects families, especially children who often get stuck between parents who become increasingly angry, secretive, and drained of financial resources as the action drags on.

“Traditional litigation often creates a wider schism between the parties than what existed when they first started their court cases. The adversarial process evolved out of disputes between arms-length third parties, not between members of the same family.  That approach often makes a bad situation worse in the context of a family dispute,” Aulis tells AdvocateDaily.com.

“For a large proportion of cases where there is still the potential for co-operation, a more collaborative approach is a better way to go," he says. "I think people are finding that a cooperative approach is better than an adversarial one, which is why there are more and more family collaboration practices springing up.”

Collaborative family law, also known as the “no-court divorce,” was first developed in Minnesota in the 1980s, according to the Ontario Collaborative Law Federation. Today, there’s a growing movement toward the approach as more and more couples look to resolve their disputes outside the courtroom, says Aulis.

As the name suggests, co-operation is at the heart of collaborative law. Aulis offers four different approaches to his practice, each of which fit under the collaborative umbrella: mediation, arbitration, a hybrid of mediation and arbitration, and the traditional collaborative model.

In this traditional model, with the help of their lawyers and any number of experts (such as a financial advisor or a child specialist), clients commit to open communication, to create solutions based on their agreed priorities, and work as a team to negotiate an acceptable settlement — all without a court stepping in, and without private matters becoming public, according to the Ontario Collaborative Law Federation.

Compared to going through the courts, a collaborative approach is generally faster and less expensive, agreements and awards are still enforceable, and since no documents are filed within the court — unless court enforcement is required — everything remains confidential, Aulis says.

To help keep it co-operative instead of adversarial, lawyers retained in the collaborative process sign a contract that they will not represent the parties in court even if they cannot reach an acceptable resolution, Aulis says.

"We’re saying we’ll work together to try to resolve this matter. We’ll bring in joint experts or do whatever needs to be done, but if we cannot come up with a separation agreement at the end of this process, we will back away and you can hire litigation lawyers,” he says.

Mediators and arbitrators are non-biased neutral parties. In mediation, they help parties negotiate their own resolutions or, in the case of arbitration, they hear the parties, consider the evidence and make a binding decision known as an award, Aulis explains.

There will always be cases that require a court, Aulis says, and not all clients are appropriate for a collaborative approach. Many matters involving domestic violence, extreme power imbalances, or parties who are unable or unwilling to negotiate fairly and effectively may not be suitable. Further, cases that require protections only a court can provide, such as security personnel and metal detectors, are likely best handled using traditional family lawyers, he says, adding that parties to mediation or arbitration are screened for their suitability prior to starting those processes in individual and confidential interviews.

“Where there’s acrimony or an element of danger, you have to be very careful to make sure that a collaborative approach is appropriate and that everyone is safe,” Aulis says.

“But assuming you have parties who can co-operate, that there is a pattern of communication, and you think that they can negotiate, there’s very little to be lost in attempting a mediation.”

Part of collaborative family law is matching clients with any resources they require, such as a financial planner, special needs counsellor, or social worker. These experts then work with both parties together, which is a stark contrast to traditional litigation, Aulis says.

“In that system, the husband hires an expert, who inevitably takes his side, the wife hires one who predictably takes hers, and they’re both shelling out money for two experts to argue about what’s going on,” he says.

Aulis says he started moving away from the court system because he didn’t see people getting the right kind of resolutions in a timely and affordable manner. Also, it was prohibitively expensive for clients unless they were wealthy, he says.

With collaborative family law, clients are encouraged to come up with their own solutions, which makes them more invested, Aulis says. Plus, it’s a much faster process, which is key when children are involved.

“The court system is supposed to be geared toward the best interests of the child, and I think that it is, but with all the formality and the long lag times between getting court dates, and co-ordinating lawyers, the timing works against these families,” Aulis says.

"One of the main advantages of the collaborative process is you can get the parties in quickly and make the decisions that are required.”

Aulis will still also focus on commercial and residential real estate in his practice, including condominium purchase and sales and residential life leases; as well as family litigation; commercial and civil litigation; estate law, including wills and powers of attorney; wrongful dismissal claims; and personal injury.

While Aulis will continue his general practice, he anticipates moving more towards collaborative practice, including mediation, arbitration and a hybrid of the two.

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