Turning to the talking cure

MONIKA ULLMANN

Though our system of law is based on battling it out in court, even lawyers agree it isn't always the best method of settling disputes. This is especially true of divorce cases, where the emotional fallout can be lethal, especially for children caught in the crossfire of their warring parents. It's also hard on lawyers, who find themselves dealing daily with emotionally volatile clients.

Responding to this situation, a new, less adversarial divorce known as the collaborative model has increasingly become the norm. According to one of the founding members of Collaborative Divorce Vancouver, Gordon Kopelow LLB, the vast majority of divorce cases no longer go to court. Rather, the parties involved work out their problems through collaboration.

"I recommend it in all my cases because the court process is very costly and it's hard on the clients," said Kopelow.

In this model, instead of focusing on rights, the emphasis is on finding the best outcome through collaboration with specially trained lawyers, counsellors, divorce coaches and financial experts. It's a team approach that generates open communication. The couple and their lawyers sign a written agreement to co-operate in solving their issues without going to court. The outcomes are generally better than a trial, in that both parties have grappled honestly with their issues and come to a place that allows for workable relationships down the road.

Started by lawyers in the United States, collaborative law has spread rapidly into Canada, with Vancouver considered one of the fastest-growing areas. Each year, about 100 lawyers sign up for certification and, though they may not practise it exclusively, it helps them to meet their clients' needs and expectations, said Gordon Sloan, one of the top mediators in Canada, who certifies approximately 100 lawyers per year in techniques for family mediation and general civil litigation. He said that in spite of the fact that it is a far superior way of resolving disputes, it is by no means a kinder and gentler method.

"It can be very difficult work, because people have to face their conflicts and deal with all the facts and the other parties involved. It gets very emotional," he said, citing a recent case of his where a wrongful dismissal suit generated tears in both parties.

Sloan said that mediation has expanded greatly during the last decade, driven mostly by changes in the rules of court and what he called "hugely expanded expectations by clients.

"Clients now expect lawyers to be more sophisticated, and we no longer automatically prosecute or defend by conventional means," said Sloan. "Most parties have an interest in seeing things resolved." He added that even large corporations are less inclined to settle matters through litigation because of the huge expenses involved. "We now have a much broader array of tools to solve our problems, and even large organizations like ICBC are using it," he noted.

Indeed, the Insurance Corporation of British Columbia has an entire department of nine people who specialize in co-ordinating claims using mediators. ICBC's Kate Best said that mediation is used a lot in personal injury claims and that the Crown corporation handles between four and six thousand mediation claims per year, of which 80 per cent are settled and only 20 per cent or less go to trial or for further mediation. She agreed with Sloan that it is not necessarily an "easier" route – but it definitely gets results.

"People sign upfront agreements, so they can't back away – though it can be a charged atmosphere," she said. Most mediated disputes take a minimum of three hours to a maximum of three days. Aside from the mediator, who is a neutral party, people can request the time and place of the mediation and bring relatives to support them, said Best.

Even the relatively minor disputes of small claims court can now be settled through a mediation process. Funded by the Attorney General's Office, mediation in small claims court is designed to help people settle their differences in a private hearing without having to endure the stress of a public trial. One person can simply file for mediation at the court and then the office sends out a date and time notification.

Mediators, like judges, are impartial. However, their role is not to judge but to find a solution that satisfies both parties. Sometimes more than one mediator is present. Even if the mediation fails and the case goes to trial, all the work that went into the mediation process generally makes the trial easier and faster.

Mediation is somewhat different from the collaborative model, though the basic principle of interest-based negotiations remains. The main difference is that a mediator remains neutral and does not give advice to plaintiffs, who continue to work with their own lawyers. In the collaborative model, plaintiffs hire a lawyer who has been specially certified in the collaborative model and there is always another professional present, such as a divorce coach or a specialist in finance.

For more information about mediation at small claims court, e-mail [email protected] or call 604-684-1300 or 1-877-656-1300. For Collaborative Divorce Law, visit www.collaborativedivorcelaw.org.

Monika Ullmann is a Vancouver freelance writer and editor.

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