By Paul Russell, AdvocateDaily.com Contributor
The huge potential of collaborative law to help separated families is not being fully realized in New Brunswick, Fredericton family lawyer Jennifer Donovan tells AdvocateDaily.com.
“We need a stronger foundation, a bigger platform. It’s vital to start the conversation about why it is so slow to take off,” says Donovan, principal of J. Donovan Law Group, who is trained as a collaborative family lawyer.
“It has wonderful potential and can serve families in a cost-effective manner. The more options we can offer separating couples for conflict resolution, the better,” she says.
While the practice has been in use in some pockets of the province, Donovan’s says it’s not thriving.
“It’s certainly not in its infancy anymore — it has matured in recent years,” she says. “They seem to have more interest in Saint John in that type of alternative dispute resolution process than in Fredericton, but I’m concerned that New Brunswick overall is quite behind Ontario in terms of adoption.”
Lack of training opportunities for family lawyers in the province could be one of the impediments, Donovan says. She received her training in New Brunswick from a visiting practitioner from Ontario with about 30 other lawyers.
“But I’m not aware of anyone providing the training in New Brunswick. That’s a problem when you’re trying to get your numbers up,” Donovan says.
“If you have a limited number of trained collaborative law lawyers in the entire province, it really hinders the ability to practise it,” she says. “It may mean that lawyers must come from different jurisdictions, which adds costs to the file and potentially makes it more cumbersome for the parties.”
Donovan says the number of lawyers seeking training would increase if the practice were more popular.
“Why would family lawyers invest the resources on training when no one is practising it, and the public doesn’t want it?” she says.
Collaborative family law requires specific training and a shift away from the litigation mindset, Donovan says.
“When lawyers say they offer that service but don’t have the requisite training, they’re working on the file with a view of going to trial. That flies in the face of the spirit of that type of alternative dispute resolution process.
“In a collaborative law practice, we are pledging not to litigate but to do whatever we can, within reason, to help these two people settle their issues,” she says.
Public education around the benefits of resolving family law disputes using a collaborative method is another missing piece of the puzzle, Donovan says.
“I tell my clients that it is similar to mediation, but there are only two lawyers in the room. The lawyers are the negotiators for the parties. We have to exchange the same disclosure that we would in any other model, but in a forum where the four of us sit around the table to have difficult discussions that don’t involve a judge.
“With calm heads, we can talk about the issues. But if we do this process and it fails, our relationship ends. I can no longer be their lawyer, and I can’t go to court for them,” she says.
That scenario often scares people away, Donovan says.
“They see it as having to start over, but it’s the obligation of the collaborative law practitioner to say, ‘Let’s try not to focus on what could go wrong, but rather on what happens if we succeed and all of the benefits that will come with it.’
“I’m not going to recommend it to someone it’s not going to work for.”
A common misconception about collaborative divorce is that it’s more costly than litigation, but Donovan says that’s not the case.
“There’s a perception that it can be quite expensive and that it’s mainly for separating couples who have more money than the average person. That’s troubling to me because it’s far less expensive than going to court and much quicker,” she says.
Donovan hopes more family lawyers in the province will realize the benefits of collaborative practice, but unless they receive proper training and arm themselves with the right information, the current state of affairs will continue.
“There needs to be that push with lawyers banding together to get a uniform message to the public. If the message is inconsistent, that will breed distrust.