DIT A2J 3: How Small Groups, Acting on Their Own, Can Make Meaningful Change

A little while ago, I gave a presentation to the National Judicial Institute‘s annual family law conference on the more important innovations in family justice introduced in British Columbia over the past decade, and in preparing my paper I realized something that struck me as terribly important. Of the nine or so changes with the biggest impact on family justice — which included things like the introduction of mandatory judicial case conferencing in 2002, the release of the report A New Justice System for Children and Families in 2005 and the introduction of Canada’s most progressive family law legislation in 2013 — no less than three were the product of non-governmental, non-judicial projects undertaken by three or four members of the bar on their own initiative. This fact is astonishing, coming as it does in the context of an extraordinarily large and complex bureaucratic system with a lineage dating back to the 12th century.

The change a small group of people can make, doing it together — that’s the DIT part of the title of this series of posts, and I now realize that this is the post with which the series should have started — is both remarkable and inspiring. In this post, I’ll describe the founding of the Collaborative Divorce Vancouver Society, British Columbia’s first collaborative practice group, the British Columbia Parenting Coordinators Roster Society, the first group founded to provide and promote parenting coordination in Canada, and the British Columbia Hear the Child Society, the first group founded to provide and promote the use of non-evaluative views of the child reports in Canada.

Collaborative settlement processes

The collaborative approach to family dispute resolution was pioneered by Stu Webb, a Minneapolis lawyer, in 1990. At their core, collaborative settlement processes are transparent, dense, resource-rich forms of assisted negotiation that are designed to avoid litigation, minimize conflict and leave the parties, and their children, as emotionally intact as possible at their conclusion. (In a typical collaborative file, each party is represented by a lawyer and assisted by a mental health professional whose job it is to coach the parties through the emotional stew of separation and negotiation and identify stumbling blocks to settlement. The parties and their counsel sign a collaborative participation agreement which requires them to act in good faith and make full disclosure, and requires the lawyers to withdraw if litigation ensues. Independent and unaligned experts may be brought in to help with complicated issues such as finances and parenting arrangements.) To my way of thinking, the collaborative approach, although often expensive, is the only sane way to resolve conflicted and complex family law disputes.

Stu’s concept made waves in the family law community as it recognized that the resolution of difficult family law problems was usually multidisciplinary, explicitly rejected the destructive nature of adversarial dispute resolution and filled in many of the methodological gaps left by mediation. These waves eventually reacted the west coast, and in the late 1990s, a group of Vancouver lawyers, which I will guess almost certainly included Phyllis Kenney and Nancy Cameron, began to discuss forming a collaborative practice group. The group brought luminaries such as Stu and Pauline Tesler to British Columbia to train and teach over the next few years, and in 2002 they incorporated the Collaborative Divorce Vancouver Society.

The provincial bar greeted the collaborative settlement approach with no small amount of scepticism. Although we had reached a certain, tentative comfort level with mediation, litigation was still the presumed means by which family law disputes would be resolved; other dispute resolution processes were simply not proper lawyering. Many of the more senior members of the bar dismissed collaborative processes as inefficient and costly, and as doing little more than delaying the time it was going to take for those clients to reach their door.

Despite its rather gloomy initial reception, collaborative settlement processes have gained an enormous amount of credibility among both the bench and bar over the twelve years that followed. Although contrarian naysayers remain, the majority of family law lawyers respect collaborative processes and see them as a useful addition to their toolbox.

Collaborative Divorce Vancouver currently maintains a roster of about 65 trained lawyers and mental health professionals. Collaborative practice groups are now littered across the lower mainland, Vancouver Island and the interior and, according to the records of the Continuing Legal Education Society of British Columbia, the province’s leading education provider, some 470 lawyers and mental health professionals have taken its introduction to collaborative practice training between 2001 and 2013, 54 of whom took the training in 2012 and 2013. This is a significant portion of the roughly 1,100 lawyers the Law Society of British Columbia says practice family law.

Parenting coordination

Parenting coordination began in California in 1993 as a court-attached process for high-conflict parents. The special master program, as it was known, was intended to address the needs of the small percentage of separated couples who found themselves embroiled in frequent parenting disputes over often insignificant issues, and used a disproportionate amount of court resources as a result. A special master, a quasi-judicial official, would be assigned to such parties to intercede when a parenting dispute erupted and attempt to mediate a resolution. If successful, the parties would be able to avoid another application to court, and the court would be spared the task of hearing it.

Parenting coordination has evolved significantly as it has grown in popularity, and spread to other jurisdictions in the United States and Canada. In its present form, parenting coordination is a multidisciplinary, child-oriented dispute resolution process that assists with the implementation of parenting plans; attempts to reduce parental conflict and improve parents’ communication and independent dispute resolution skills; and, keeps parents out of court by resolving parenting disputes as they arise.

As with collaborative processes, news of this American invention eventually spread to Canada. in 2006, Nancy Cameron, Phyllis Kenney and I, along with Deborah Brakeley, a Vancouver-based clinical counsellor, formed a steering committee to establish parenting coordination as a new legal mechanism to deal with the unique issues facing high-conflict parents and to provide education to lawyers and mental health professionals interested in working as parenting coordinators. An initial roster of parenting coordinators was launched in 2007, the members of which included experienced family law lawyers, mediators, social workers, psychologists and registered clinical counsellors.

The BC Parenting Coordinators Roster Society was incorporated in 2009, and presently boasts a roster of 33 parenting coordinators who practice in Vancouver Island, the lower mainland and the interior.

Parenting coordination, recommended by A New Justice System as a strategy for assisting high-conflict parents, has been warmly welcomed in British Columbia. At present, parenting coordination is seen as a useful and effective means of: reducing litigation after trial or settlement; promoting parents’ ability to cooperate; and, improving their ability to recognize the needs and interests of their children, independent of their disputes. The appointment of parenting coordinators has become unexceptional when parents are identified as high-conflict and have the means to pay for the service. The uses and limitations of parenting coordination are now generally well understood by the bench and bar, and a healthy body of case law is growing on the appointment and termination of parenting coordinators.

Non-evaluative views of the child reports

The perspectives of children whose parents were involved in a family law dispute are normally brought before the court in one of five ways: the custody assessment or views of the child report of an expert; an affidavit or letter written by the child; or, a judicial interview. For good and sufficient reasons, judges are often reluctant to interview children. Letters and affidavits are both to be avoided as they have the flavour of involving the child as a witness and player in the litigation between his or her parents. Custody assessments and views of the children reports can take three to six months and cost $2,000 to $12,000 to complete if performed by a mental health professional, or twelve months to complete, but at no cost, if performed by a Provincial Court family justice counsellor.

In the early 2000s, an informal practice developed in Kelowna in which a lawyer with no connection to a family law proceeding would be asked to meet with and interview a child, and report back to the court. The process proved to be both speedy and efficient, and a modified version was implemented as a pilot project by the International Institute for Child Rights and Development, a Victoria-based organization, between 2005 and 2006. A small roster of Kelowna lawyers and registered clinical counsellors was established and trained in a structured interview process. The reports produced were non-evaluative, meaning that, unlike the custody assessment and views of the child reports prepared by mental health professionals, they offered no analysis, commentary or evaluation, and required no testing, review of background materials or interviews with persons other than the child.

The Institute followed its successful pilot with a course on interviewing children and the preparation of non-evaluative views of the child reports, held in Vancouver over two days in 2007, following which a number of lawyers, myself included, began preparing views of the child reports, independent of the Institute and the ad hoc practice developed in Kelowna. Two years later, in 2009, Trudi Brown, a lawyer from Victoria, Ron Smith, a lawyer from Kelowna, Robert Colby, a psychologist from Vancouver, and I incorporated the BC Hear the Child Society to promote children’s participation in justice processes, establish best practices, and create a roster of trained child interviewers.

The Continuing Legal Education Society has continued to offer training on the interviewing of children and preparation of non-evaluative views of the child reports, and the BC Hear the Child Society presently boasts a roster of 44 lawyers and mental health professionals.

Non-evaluative views of the child reports have come to be appreciated by the bench and bar for their low cost and the speed with which they can be produced, and have been endorsed by the British Columbia Court of Appeal, in a case called Stav v Stav from 2012, as a means of complying with the court’s obligations under the United Nations Convention on the Rights of the Child. These reports are indeed inexpensive — mine started at $500 for people involved in proceedings before the Provincial Court — and can be produced relatively quickly, with a turn-around of time of about a week, although there have been times when a judge called me at the morning recess to ask if I could meet a child and produce a report by the afternoon recess.

Why does all of this matter?

There are a number of common factors about these initiatives which struck me as remarkable when I was writing that paper for the NJI. All of these initiatives

• were pursued with no funding, grants or revenue apart from the modest membership dues contributed by the founding directors;
• sought to and did establish novel dispute resolution processes that are pragmatic, holistic and child-centred;
• resulted in a profound change in the legal culture surrounding the resolution of family law disputes in British Columbia; and,
• became widely accepted by the bench and bar within a matter of two or three years,

and none of them were undertaken on the strength of a mandate from government, bench or bar. It is some indication of the acceptance of these initiatives that both parenting coordination and collaborative settlement processes are specifically identified as family dispute resolution processes in the new Family Law Act, and that the new act also contains special measures allowing the court to appoint parenting coordinators, delegate certain decision-making tasks to parenting coordinators and enforce the determinations of parenting coordinators.

The tangible nature of the change effected by the introduction of collaborative settlement processes, parenting coordination and non-evaluative views of the child reports is really rather remarkable, and is especially so when one remembers that these initiatives were undertaken by a handful of people, lawyers mostly, who shared a common vision. What astonishing results have been realized from the initial work of such small groups of lawyers!

Here are some tips and suggestions if you are thinking of organizing similar projects:

1. Don’t reinvent the wheel. Be satisfied that no one else is doing what you want to do before moving forward, and then look beyond your jurisdiction to see what others have done elsewhere.

2. Use the work and wisdom of others. Consult with the leaders of similar projects to see whether there are any lessons, if not materials, policies and best practices, which can be borrowed from those projects.

3. If you are planning a project related to family law, it is likely going to be interdisciplinary. Involve practitioners from any related disciplines right from the get go rather than trying to insert them into your planning after the fact.

4. Be flexible and be able to listen to criticism and dissenting points of view without feeling wounded. If your project is truly novel, none of you are going to get it right the first time you sit down at the planning table.

5. Think about what your project will look like when complete and where the problems will lie. What admissions standards will you use for people wishing to join your group? How will you get rid of someone who becomes a problem? Do members need to be covered by professional insurance? Will members be subject to discipline by their professional organizations? Should you have internal discipline and complaints processes?

Don’t let the fact that something useful isn’t being done stop you from being the person to start it being done. The change that a small group of motivated lawyers can make working together is amazing.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.