Is It Time to Regulate Collaborative Practice?

Collaborative practice is a dispute resolution process that is primarily used in family law, and it is currently unregulated in Canada. The forthcoming amendments to the Divorce Act include collaborative practice as a “family dispute resolution process” that a lawyer ought to “encourage” her client to consider, where “appropriate”. This suggests to me that a process that has for the last 30 years has been largely community-based, has finally come into its own – into the federal scope of the Divorce Act and therefore into the collective conscience of all Canadian family lawyers. This begs the question of whether it is time to regulate collaborative practice?

What is Collaborative Practice?[1]

Collaborative practice developed in Minnesota in 1990, when a family lawyer named Stu Webb became so disillusioned and burnt-out with his adversarial family law practice that he needed to find another way to practice or he was going to have to quit altogether. Webb focused on shifting from a litigation model to a problem-solving model of dispute resolution, and creating a process that prohibits lawyers from resorting to litigation, forcing them to negotiate. Meanwhile two years later, in California, practitioners were experimenting with resolving family law disputes with an interdisciplinary team instead of relying on lawyers alone. Collaborative practice was born when these two movements came together.

Today, the collaborative process is practiced globally; there are over 5,000 collaborative professionals worldwide—620 in Ontario. There is an international organization called the International Academy of Collaborative Professionals that provides training, a standard participation agreement (“PA”), and ethical guidance. In Canada, Collaborative Professionals of Canada (“CPC”) provides resources to local collaborative practice groups and seeks to create a “unified voice that can inform and influence family law legislation and law reform.”

As the CPC website says, collaborative “starts with a commitment not to go to court.” Negotiations take place in person and are driven by the parties who sign a PA at the commencement of the process setting out the rules of the negotiation. They will typically commit to terms such as good faith negotiation, full disclosure, and to prioritize their children’s interests over their own. The integrity of the process is maintained by two standard provisions: the disqualification provision and the mandatory termination provision. The parties agree not to resort to litigation or threaten to do so, if they do, the disqualification provision is triggered and both counsel are disqualified from acting. The mandatory termination provision typically provides that a lawyer must stop acting where the client violates the PA, such as by refusing to honour agreements or acting contrary to the collaborative process. In essence, the process will be terminated and counsel disqualified if the parties fail to live up to the terms of the PA.

The team model is a unique aspect of collaborative practice. The professional team consists of two lawyers at minimum, but it may expand to an interdisciplinary team incorporating financial and family professionals who also work collaboratively together with the parties. Unlike the lawyers, the financial and family professionals are neutral, jointly retained by both parties. One of their purposes is to help the parties design settlement options that meet their interests. For example, if the parties own a family run business, a financial professional can help explain the finances to a spouse who may have been involved in name only, and can help both parties design creative and financially wise solutions. In essence, collaborative practice recognizes that family law matters are often a complex mix of financial, emotional, psychological, and legal issues, incorporating professionals with the expertise necessary to resolve them.

All collaborative professionals should be trained in collaborative practice. Like mediation, the process is not regulated but the IACP and local practice groups, regional and national organizations provide training and accreditation. Without training, professionals will not be aware of accepted practice norms and team members will not always agree to proceed collaboratively without that knowledge. For example, in Ontario, to be a member of the Ontario Association of Collaborative Professionals, a lawyer must be a member in good standing of the Law Society of Ontario, have completed 40 hours of collaborative training, and have errors and omissions insurance of at least $1 million. Typically, a professional will also be a member of a practice group, such as Collaborative Practice Toronto.

In sum, collaborative practice is a non-adversarial dispute resolution process that supports the parties to reach a consensual agreement which emphasizes their interests in tandem with their legal rights and obligations. The process involves a team of professionals that are retained to meet the unique needs of the family. Despite the involvement of additional professionals, the process has also been empirically shown to be more cost-effective than litigation, though better suited to low-conflict families rather than high-conflict families – presumably because of the requirement for good faith negotiation.

Why Regulate Collaborative Practice?

In the US, there was academic debate about whether collaborative practice was ethical which was largely centered on the way the lawyer’s role was perceived to shift.[2] Eleven State Ethics Opinions concluded that collaborative practice is an ethical dispute resolution process, provided there is informed consent, with one dissenting opinion from Colorado. In 2010, the Uniform Collaborative Law Act (“UCLA”) was made available to state legislatures, effectively ending the debate. The UCLA provides for uniformity of process, including requirements for the PA (Rule 4 and Section 4), clarifying when emergency orders may be obtained without ending the process (Rule 7 and Section 7), and a requirement to screen for domestic violence; where domestic violence is present a lawyer must only represent a survivor if they “reasonably believe” the survivor can be “protected adequately” in the process (Rule 15 and Section 15).

A similar discussion was expected in Canada but the articles that emerged did not spark the same debates.[3] (My thoughts on the lawyer’s role in collaborative practice are here and here.) There is no collaborative legislation in Canada. No provisions of the Federation of Law Societies of Canada, Model Code of Professional Conduct deals specifically with collaborative practice (or family law or family violence). However, with the process being included in the Divorce Act in the coming months, all family lawyers must at least be able to explain the process to prospective clients, if not be trained to represent that client collaboratively, if that is what the client wants (or lose the file to a trained collaborative lawyer).

Without legislation in Canada, practice communities develop all protocols. If the process fails and the parties end up in litigation, the lack of uniformity can create challenges for courts to define the process and the lawyer’s role in it. Moreover, lawyers may be under a mistaken belief as to what their obligations are. For example, in the New Brunswick decision Noble and O’Brien v Arsenault and Arsenault, 2014 NBCA 39, the lawyers seemed to be under an assumption that a “mediator’s privilege” (as something distinct from settlement privilege) existed which protected their files from being returned to their clients upon request. The Court of Appeal corrected that erroneous assumption and ordered the documents be returned.

Similarly, in the Alberta decision Webb v Birkett, 2011 ABCA 13, the lawyer was under the impression that collaborative practice allowed for a reduced standard of financial disclosure. In that case the trial judge erred by misapplying expert evidence about the process, and held there was a reduced standard of care. The Court of Appeal corrected that conclusion when they held that “the collaborative family law process does not excuse their lawyers from obtaining the information required to give the advice needed to support informed settlement decisions” (at para 56).

It’s my understanding that these decisions had a chilling effect on collaborative practice. In my view, both appeal courts correctly articulated the fact that the practice did not alter the lawyers’ professional obligations. Although the outcomes of both cases would not necessarily change with regulation, the need for the cases to be heard may have been avoided. At the very least, the lawyers erroneous assumptions may have been corrected with a standardized process, and if they were heard, it would presumably be easier for everyone with legislation to rely on. To the extent that the decisions made collaborative lawyers nervous, regulation could ideally help to dispel myths that seem to exist, and perhaps create greater confidence in collaborative practice generally.

Perhaps regulation would also expand training, which is currently voluntary and regional. Collaborative practice is not typically offered through bar associations or taught as a course in law schools (although it may be introduced in some related courses). Very well respected and seasoned trainers frequently offer excellent training in some provinces and territories, but not all. While access to education may have been improved recently through online delivery, legislation could hopefully provide consistency in terms of what the process is, and inspire more professionals to become trainers in areas of Canada that do not currently have local training available.

The debate necessary to regulate might also help resolve disagreement about the practice. I have no data to support this observation, but I do know from talking to colleagues that in some jurisdictions collaborative practice is very common but they practice what is known as little “c” collaborative. In those cases, the parties do not sign the PA but they do approach negotiation collaboratively. There is a debate within the literature about whether the disqualification provision is necessary at all,[4] so perhaps we could properly study the effectiveness of the provision.

Perhaps regulation would steer our conversation about access to justice in family law towards the inclusion of non-legal professionals instead of towards paralegals. (For an overview of the paralegal debate in family law see Noel Semple’s Slaw post here.) In my view, paralegals are not the answer to the family law access to justice crisis – they still work within the adversarial system and focus on the law. For example, maybe we could emphasize parenting mediation with a social worker, instead of legalizing the issue of a parenting schedule. Diverting files out of litigation, away from adversarial processes, is more conducive to the financial and mental health of most families, and is more cost-effective.

Public education is another reason to regulate collaborative practice. I have the sense that, generally speaking, the public does not know what collaborative practice is. Anecdotally, a few years ago I was part of a group of collaborative professionals who were working with the Osgoode Mediation Clinic to bring a Pro Bono Collaborative Practice option to families in the Greater Toronto Area. We had a roster of professionals who had taken our training and we were ready to provide a modified version of the process to families for free, provided they met certain qualifications (the limits were higher than legal aid, but excluded things like small business owners and pension-holders). We mirrored the program on a successful Vancouver-based program (the Pro Bono Collaborative Family Law Project), and we adapted it to work for the Toronto community, and so we could mentor law students and junior professionals, but the project failed. We had no clients – not one. Did we not do enough advertising? Was it the ongoing myth that divorce requires a fight, and so the word “collaborative” was unappealing? I’m not sure, and I’m not sure if regulation can help with public awareness, but it cannot hurt.

Finally, regulation could alter professional obligations. I’ve argued elsewhere that collaborative legislation could require that professionals have family violence training and be required to screen for family violence, and it could establish a collaborative privilege similar to litigation privilege, with clear exceptions for what survives the process and may be admitted as evidence. Legislation might trigger changes to the Model Code with respect to confidentiality, competence, honesty and candour.[5] For example, the rules of honesty and candour could allow an abuser’s lawyer to delay disclosing information learned through the process to her own client long enough to allow a survivor to implement safety protocols (e.g.: leave the house – if they still live together). Currently, the lawyer’s duty of loyalty and honesty do not seem to allow any delay when a lawyer knows something that her client does not, even when revealing that information may be a trigger for abuse.

In short, it seems to me that regulation of collaborative practice could protect clients, educate the public, set process parameters, improve practitioner abilities, enhance the process’s credibility and protect its reputation, and be a step towards providing access to justice for family law clients.

Why Not to Regulate Collaborative Practice?

There are compelling arguments against regulation too. The dominant counter-argument is that regulation suffocates innovation. Collaborative practice grew from a grass roots initiative and has done so successfully in Vancouver, Toronto, Saskatchewan, and other parts of Canada. The process is fluid and can be adapted to the needs of a diverse range of families and incorporate most types of specialized expertise. There are protocols, but even with them, there is no one way the process must unfold – that can be a good thing. The process can unfold cost-effectively and efficiently if both parties wish it, regulation might change that, and it might stifle the innovation that currently fuels the practice.

Moreover, the process involves professionals from several disciplines, and therefore, several professional regulatory bodies and codes of professional conduct. The current flexibility allows those professionals to navigate their own professional obligations. Would that flexibility be lost if the practice were regulated?

The process has also grown more responsive to family violence than it once was, with training requirements higher than what the average family lawyer is required to have in some jurisdictions (e.g.: the Advanced Collaborative Professional Designation in Ontario). In other words, the practice seems to be doing well enough on its own.

In short, arguments against regulation of collaborative practice include that the process is already regulated through market forces, and it is too challenging to regulate when there are so many professional backgrounds involved. But ultimately, the driving argument against it seems to be the same one that is used to dispel ideas of regulating mediation[6] – that regulation is contrary to the spirit of collaborative practice.

In the end, for me, it comes down to the idea that despite the popularity of collaborative practice, it is still somewhat of an outsider; it is still misunderstood. And if it is misunderstood within the profession, how can we expect the public to navigate their options effectively. Senior collaborative professionals have acquired a great deal of wisdom over years of fine-tuning the process, and it seems like a waste not to bring that experience into broader professional awareness. It feels like leaving money on the table. There are 620 collaborative professionals (not just lawyers) in Ontario, but there are 55,000 lawyers in Ontario (I’m not sure how many of those practice family law, but even 5% is 2,750). If the process is actually unclear to some professionals, and unknown to the public, then I think its inclusion in the Divorce Act demands that we at least consider regulation.

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[1] The term “collaborative practice” is sometimes referred to as collaborative law; but proponents of the interdisciplinary model advocate for the process to be referred to as “practice” in order to be inclusive and emphasize that the team includes mental health professionals, financial professionals, as well as lawyers.

[2] See e.g.: Sandra S Beckwith and Sherri Goren Slovin, “The Collaborative Lawyer as Advocate: A Response” (2002-2003) 18 Ohio St J Disp Resol 497; Christopher M Fairman, “Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads?” (2002-2003) 18 Ohio St J Disp Resol 505; John Lande, “Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering” (2003) 64 Ohio State L J 1315.

[3] See e.g.: Julie Macfarlane, Department of Justice, “Research Report: The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases” (2005) online (pdf): Department of Justice https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2005_1/pdf/2005_1.pdf; Wanda Wiegers & Michaela Keet, “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities” (2008) 46 Osgoode Hall L J 733.

[4] See generally: Martha Simmons, “Collaborative Law at 25: A Canadian Study of a Global Phenomenon” (2016) 49:1 UBC L Rev 669.

[5] See generally: Deanne Sowter, “Full Disclosure: Family Violence and Legal Ethics” (2020) 53:1 UBC L Rev 139.

[6] See: Art Hinshaw, “Regulating Mediators” (2016) 21 Harv Neg L Rev 163.