Why Collaborative Law?

Collaborative law is one of several methods of dispute resolution available to parties in dispute. These methods typically include traditional litigation, mediation and arbitration.

Litigation

Traditional litigation involves a formal process with strict evidentiary rules under a province’s rules of court or civil procedure. With litigation, a party meets with a lawyer, a claim is filed setting out the issues and the other side hires a lawyer and files a defence to the claim. Thereafter, rules of evidence set out the process for disclosure of documents and oral questioning of each side. The file moves towards an eventual settlement or trial after a great deal of time and money is spent.

Litigation is cost prohibitive for most parties but often parties are not aware of any other option. The litigation process is designed to be adversarial with opposing lawyers using tactical and strategic advantages available under the evidentiary rules and case law to present their client’s case in the most favourable manner. Eventually, virtually all litigants settle the file at some stage of the process after considerable time and expense.

Collaborative law v. litigation: Collaborative law is normally engaged at the outset of a file to avoid litigation entirely. The parties start speaking with one another about the issue immediately as opposed to through their lawyers. Clients drive the process as opposed to the lawyers. Collaborative law uses voluntary disclosure done in good faith which does preclude a party from using tactical and strategic advantages that might be available through the formal rules of civil procedure. However, such legal disputes over evidence can be expensive once before the court.

Mediation

Mediation is another form of dispute resolution. Mediation involves clients and their respective lawyers presenting the matter before a third-party neutral, the mediator. The mediator is not deciding the matter for the parties, but rather moving them towards resolution in an objective manner. Mediation is not usually held at the outset of a legal matter. Typically, a mediation is held later on in the litigation process again, after considerable time and expense. Mediations are most often heard over the span of one or two days as opposed to a series of shorter meetings over time.

Collaborative Law v. Mediation: Collaborative law is engaged from the outset of the process and is client led from the start. The four-way meetings are between lawyers and clients with no further need to pay the cost of a third party neutral. Collaborative law utilizes short meetings spread out over time to attempt resolution as opposed to the more focused approach of mediation which typically occurs over one or two days. Mediation retains a more advocacy focus given each side typically takes positions as they move to resolution.

Arbitration

Arbitration is yet another different form of dispute resolution. Like mediation, arbitration involves engaging a third party to listen to both parties. Unlike mediation however, an arbitrator is present to hear the arguments of both sides and ultimately come to a decision on who is successful. This is different from a mediator who remains neutral throughout and acts more of a facilitator towards resolution.

The arbitrator’s decision is either binding on the parties or not binding. A decision that is made by the parties before agreeing to arbitrate. Arbitration is more similar to a trial or hearing as opposed to an interest-based negotiation. Arbitrators charge a fee to hear the dispute and make a decision. Like mediation, arbitration is typically engaged later on in the litigation process as a means to avoid the expense or time of a trial. However, many contracts contain an arbitration clause which mandates the arbitration process commence at the outset of a dispute.

Collaborative law v. arbitration: Collaborative law is not position based. It is interests based with a focus on what solution is best for the parties and not necessarily on who has the best legal arguments. Collaborative law does not involve the cost of a third party and in this respect may be more accessible for clients. Arbitration is more like litigation in that a solution is being decided for the parties rather than them working one out together.

Each method of dispute resolution has its advantages and disadvantages. Contact Blackacre Law to discuss your options.