Collaborative law and its role in estate disputes

Law360 Canada (July 24, 2024, 10:35 AM EDT) --

Kimberly Gale

Collaborative law, commonly used in family law, is an innovative approach to dispute resolution — introduced to the Canadian legal landscape in 1998 — where the lawyers and parties involved in a dispute agree in advance to resolve their conflict using co-operative strategies that are out of court rather than adversarial techniques and litigation.

This commitment is formalized in both the retainer agreement and the participation agreement. These documents explicitly state that the parties will act in good faith and that if settlement efforts fail, the lawyers will withdraw and not represent the clients in the matter further.

Contrary to popular belief, collaborative law is not synonymous with mediation. Unlike mediation, lawyers use a collaborative approach and are not expected to be neutral toward the parties. Instead, they work actively to advance their clients’ interests while maintaining a co-operative stance. As such, the collaborative approach is ideally suited for situations where there is an ongoing relationship that needs to be preserved, such as in family matters or ongoing estate disputes.

Benefits of collaborative law

Some of the key advantages of collaborative law include its ability to preserve relationships, protect privacy and reduce the pressures associated with limitation periods.

• Preserving relationships: Rooted in fairness and openness, the collaborative approach helps clients maintain and even salvage their relationships with the opposing parties, leading to more positive and constructive outcomes. One way the collaborative approach facilitates open communication is by requiring regular four-way meetings between the parties and their respective lawyers.
• Private and confidential: The parties should be made aware that the benefit of collaborative law, in addition to saving costs and preserving their family relationship, is that it is a private and confidential process. The matter is resolved privately and does not form any part of a court record, and as such, cannot be found online.
• Suspension of limitation periods: Under the collaborative framework, the parties may wish to agree that all limitation periods are suspended during the collaborative process, even if they must attend court.

Some issues in estates where collaborative law may not be appropriate and where these benefits may not be realized would be where one party misappropriated funds while acting as a fiduciary (for example, an attorney for property or estate trustee) or where there are allegations of elder abuse. In such situations, it is understood that more traditional litigation methods may be better suited.

Implementing collaborative law in estate disputes

One aspect of some estate disputes is the requirement for a court order, the most common being productions and appointing an estate trustee. While a typical collaborative law retainer agreement holds that the lawyers must stop acting if the parties go to court, in order to accommodate estate disputes, this rule must be tweaked.

A suggestion would be that the parties agree that if a court order is necessary, this would be categorized as a “special circumstance.” This “special circumstance” caveat would include that attending court would have to be agreed upon in advance and also be necessary to reach a settlement. Therefore, even though the aim of collaborative law is to minimize court involvement, it nevertheless recognizes that the court may sometimes be essential to achieve the parties’ objectives.

Transforming the legal practice

For litigators accustomed to adversarial practices, transitioning to a collaborative approach may require significant adjustments. Pauline Tesler, in her work Collaborative Law: Achieving Effective Resolution in Divorce without Litigation (2017), outlines a four-stage process for “retooling” lawyers to effectively practice collaborative law:

• retooling how one thinks, speaks and behaves;
• retooling how one relates to the client;
• retooling how one interacts with opposing counsel, the other party and other professionals;
• retooling how one conducts settlement meetings.

Ultimately, it is in the parties’ best interest to have a continuing working relationship rather than adversarial, especially if they wish to have any type of relationship once their dispute is resolved. Lawyers seeking to offer collaborative law should adopt a cooperative negotiation approach to foster fairness and encourage the parties to develop this continuing working relationship.

Conclusion

To adapt to the ever-evolving legal landscape and improve outcomes, collaborative law should be embraced as a collective effort by legal practitioners, the courts and the parties involved. By recognizing that many disputes can be resolved through collaboration rather than litigation, all parties can work together to preserve relationships and achieve better overall experiences.

Kimberly Gale specializes in estate litigation and elder advocacy, while also offering mediation services through her boutique law firm, Gale Law, located on 330 Bay Street. Kim has honed her advocacy in a variety of settings and is a fierce advocate for her clients, leading her to be nominated for Litigator of the Year at the Canadian Law Awards 2024. She also founded a not-for-profit organization called NCA Network, which is a diversity and inclusion group catered to internationally trained lawyers living in Ontario. Kim serves as secretary for the OBA's Elder Law Section, advocating for senior’s rights and completed her LL.M. in Dispute Resolution at Osgoode Hall Professional Development.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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