WATCH: Pros And Cons Of Mediation, Arbitration and Negotiation

Calgary family lawyer Charles Fair discusses different forms of alternative dispute resolution, when going through a divorce or separation.

Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.

Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.

WATCH: Pros And Cons Of Mediation, Arbitration And Negotiation:

Vanessa Farkas-Brahmakshatriya: Welcome everyone. My name is Vanessa Farkas-Brahmakshatriya. I'm a volunteer with the Canadian Center for Men and Families, Alberta. It's my pleasure to introduce Charles Fair, who's been practicing law for over 30 years and founded Fair Legal because he's passionate about helping others, ensuring that their rights are protected, and that they're treated fairly. Fair Legal deals with criminal, family, and civil litigation matters.

Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we serve. In other words, men struggling due to intimate relationship breakdown and turmoil. 

At CCMF Alberta, we're committed to meeting men where they're at, so they can feel heard and validated in conversations that matter to them. We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children. 

We recognize that providing mental health support for men leads to optimal parenting outcomes, a reduction in family violence, and lower rates of suicide. 

If CCMF Alberta is new to you, please do check out our website, to learn more about the programs that we offer - pay what you can counseling, and peer support, and domestic violence recovery support, and a number of other programs that are made for men's specific needs, which is a gap in the social services industry that we've been trying to fill with our work at CCMF Alberta.

And during this presentation, if you have questions, you're welcome to send them to Melanie. Melanie Seneviratne is here as Charles Fair's assistant, so she'll be fielding the questions. And, without further ado, I'll hand it over to Charles. 

Charles Fair: Great. Thank you very much, Vanessa. It's always a pleasure to be here for these webinars and I like the work that you guys do at CCMF. It is an underserved market and whenever I have the opportunity to talk about what you guys do with other professionals, they go, yeah, it's truly an underserved market. So thank you for that. 

A little bit about myself on this topic. I'm actually a trained mediator, although I don't do a lot of mediation. This is a subject that is very much core to what I do as a lawyer in the sense of, what we're trying to do is get to resolution of legal disputes. 

And this is a little bit of a quote here. "Everything is a negotiation. Everything is a little bit of give and take". And that's true of life in general. So these things that we're talking about today are to deal with a form of resolution, in a formal way, of legal disputes, but in some ways this is part of how we get through life in all sorts of ways.

So, yeah, I always try to think of law as ultimately a human process. It's what we do to resolve disputes between us. And it's not about some kind of machine that's operating to spit out results, but rather it's about humans interacting with one another. And the better we can get at doing that, the better the results that we're gonna get in life in general, as much as in legal disputes as well.

So, first off, I wanted to talk about the term Alternative Dispute Resolution, or ADR. That is a term that is, you know, you may hear if you are in the legal system. "Alternative" means it's an alternative to court. Court is ultimately able to dispute resolution where you get a third party, a judge who's been appointed by the government to resolve disputes, so that we maintain a reasonably civilized society. And the courts are very expensive to operate and they are subject to very high demands on their services. And so, over the years, there's been a lot of emphasis on encouraging people to try alternative ways of resolving their disputes. And, in fact, lawyers have an ethical obligation to discuss with their clients the options for alternative dispute resolution when we are submitting documents for filing, both in Provincial Court and in the Court of King's Bench, and family matters, we have to specifically sign off an acknowledgement that we have advised our clients of alternative dispute resolution techniques. Or methods. Because, ultimately, the courts are about resolving disputes and they recognize that disputes may not be resolvable easy in the courts for a number of reasons.

So, without further ado, we'll talk about - we'll be talking about three main kinds of alternative dispute resolution tonight. The first one being mediation. 

Mediation is where you have a neutral third party who helps the parties find solutions that they both agree on. So what's critical here is the solutions have to be agreed on. If there is no solution that everybody agrees on, then there is no solution. So it's really a focus on agreement and consent rather than imposing a solution on the parties. 

We talk about a neutral third party because it's very important that that party not - the mediator - not be biased in any way toward one party or another. In the real world that may be impossible to get somebody who is 100% neutral, but that is what the objective is. 

So here's some pros of mediation. First one is that it is a confidential process. What goes on in the mediation cannot be used outside of the mediation. It can't be used in court. It can't be published in newspapers or in media. Not like court proceedings, which are open to the public. Mediation is a private process. 

Mediation can be less expensive than court. And you say, well, how does that work? As a mediator, you typically have to pay, but you don't have to pay for going to court other than a filing fee when you started the process, and maybe there's an application fee. Those fees aren't very much. 

It's less expensive than court because you're not having to deal with and pay lawyers to represent you in the process, there are a lot fewer procedural steps, you don't have to provide documents that, you know, the time and expense and preparing those documents are usually avoided when you're doing mediation.

It can be quicker. If you can find a mediator who's available, who can help you find a solution that you can agree on, then you can get into - or you can get to - a solution much quicker than you can be by going through the courts. 

And solutions may be more satisfying because everybody's reached agreement on them. A solution that is imposed on one or both parties is not as, usually not as, satisfying as one that is as a result of a mediation process. 

And kind of a corollary to that is that it can lay the groundwork for better ongoing communications between the parties. If you can reach agreement through the help of a mediator, then maybe, down the road, if you have a disagreement over something that arises in your divorce or your parenting, then maybe some groundwork has been made for healthier communication going forward. 

Now, some cons. Well, first off, you might not reach an agreement. In which case, the mediation may seem like a waste of time. You know, you typically put other proceedings on hold while you try mediation and it may feel, if you don't reach an agreement, there could be a certain amount of disappointment and frustration if you then have to go and use the regular court mechanisms. 

Mediation is not appropriate where there is a power imbalance between the parties. And I'm going to say that is particularly true when there is domestic violence concerns or where somebody feels like they are in an abusive relationship. Mediation in that context is a little problematic. 

It's also problematic if you think that there are resolutions that are going to be, or options that are going to be, possible if you are participating - I'm not saying that very well. I had one client that would regularly agree to things because the woman he was having the dispute with was more than happy to have sex with him that night if he agreed with stuff during the during the negotiation or mediation process. And that's kind of a distortion that really does - I'm gonna put that into the category of power imbalance. You need to be aware of that kind of dynamic. 

The mediation requires good faith participation on all parties. And good faith participation means that you're willing to listen, you're willing to consider what the other party has to say, and you're willing, in good faith, to consider ways that you might wanna compromise to reach agreement. You may not be happy with all of the solutions that are discussed with, but if you keep at it, hopefully you can reach agreement on the most important points. And you may decide that, well, maybe the other things that you can't reach agreement on are not quite as important. And so, in good faith, you can accept those things.

And it's also difficult to enforce a mediation agreement unless there is independent legal advice given to both of the parties afterwards. 

And this is one of the issues. This doesn't really fall under pros and cons, but it's important to understand that you can give up significant legal rights during the course of mediation, and the courts will enforce that, or they if there's nothing wrong with that per se, but you have to know what those legal rights are, and that's what the purpose of independent legal advice is. To say, yes, you reached that agreement and, you know, it's one that you're giving up significant rights, but you understand that you've reached that agreement because reaching agreement in itself is a benefit that is worth something. So it may be worth giving out some significant legal rights, but that's why you want to have independent legal advice on that process.

Now, arbitration. Again, you use a neutral third party who's the arbitrator. In this case, the arbitrator makes a binding decision after hearing evidence from both sides. So it's much more like court in that there is a decision that is made by the arbitrator after hearing evidence. The process is a little bit more flexible, though, as we'll see.

So, first off, again, just like in mediation, arbitration is also confidential and private. So if there's really sensitive issues that need to be decided on, and you don't want your dirty laundry aired out in public, arbitration can make sense. 

Arbitration is typically faster than court simply because of the demand on court services. It's very difficult to get trial time in under a year. Or even what we call special chambers applications or things like that. Things that require the court to really dig deep into a dispute before making a decision. It can be months, if not years, before you get to a decision in court. Arbitration, if you can line up an arbitrator, you could be done in weeks or months.

Arbitration also has some benefits in that an arbitrator can have subject matter expertise. So where you see this is in parenting coordination, for example, where the parties agree that the parenting coordinator will have the authority to make a binding decision on the parties after they've heard input from both parties. And hopefully that parenting coordinator has some subject matter expertise when it comes to parenting. So that's obviously an important criteria when choosing somebody to act as an arbitrator in that role. 

Arbitration is - another pro about this - is that it's final and binding. A decision of an arbitrator is very difficult to appeal from. So it gets to a solution and, again, get to that solution faster than going through court. And then you're done. 

I do want to take a moment, though, to talk about something that we often see in, or talk about in, family law.

And that is that a divorce really has, or a separation really has, two components. One is the legal component, which is resolving all of the issues regarding parenting, regarding financial support, regarding division of property. Possession of the matrimonial home, that sort of thing. Those are all ultimately legal decisions.

But then there's something that we call the emotional divorce, or the emotional separation, where the parties have really reached that stage that they're no longer interested in fighting, that they're just interested in moving on with their lives. What we often say is that, if the parties have not reached the emotional divorce stage, it's very difficult to get to the legal divorce stage because of the desire to keep fighting. 

So I didn't list that as a con here under either arbitration or mediation, but it is something to bear in mind, that the parties really do need to be prepared for a decision a legally binding decision.

Another pro for arbitration is that it's a flexible procedure. I mentioned earlier that the or - the heading here says: "Neutral third party makes binding decision after hearing evidence from both sides". If you are in a formal trial proceeding in the courts, the procedures are set out in the rules of court, and they can be quite onerous to follow. There's rules of evidence, again, might be quite onerous. An arbitrator can, with the agreement of the parties or even without the agreement of the parties, set up a degree of flexibility in how the evidence is presented to the arbitrator in a way that can be cheaper than going to court. 

You'll notice that I didn't put in here as an advantage about it being cheaper than court. It can be cheaper than court, especially if it's faster, but because arbitration is results in a binding decision, you really do need to prepare as if you're going to court. It's a private process, yes. It's a faster process. But if you're gonna go into arbitration, you want to make sure that you're treated fairly. And that means making sure that the arbitrator, the decision maker, has all of the information that they need in order to make a good decision. And that process can be expensive. 

So here are some cons. Can be more expensive than mediation. I've just talked about that. 

Secondly, there's limited appeal rights. You choose arbitration, well then you're gonna be stuck with what the arbitration process results. And we talked about flexible procedure, that's an advantage of arbitration, but it can also be a disadvantage in that it doesn't - there are fewer court-like procedural protections.

So, for example, in a court process, you have rights of discovery that allows you to ask questions, well before trial, of the other party, and that process provides you with ways of getting at that information that might not otherwise be available, and then, when you go into trial, you can use that information to, you know, for example, cross-examine the other side and that sort of thing.

So it allows for a better result to the court process through those procedural protections. 

This is, kind of, a minor point. It may still require court involvement to enforce a decision made by an arbitrator, and that's because you would have to register the result as a court order if you have to move to enforcement. But that's a very minor point, I would suggest. 

Then the third point is negotiation. Parties reach agreement using process of communication and compromise. So here's some pros. 

One, it's flexible as to content, the format, the timelines. You know, if you want to negotiate something, you can decide what it is you wanna negotiate, where it's gonna happen, what your timelines are. You don't feel like negotiating, just say no. 

It can be less expensive than arbitration or litigation because now you're not having to pay a third party person to be that arbitrator or that mediator. It is a collaborative process, which again, may preserve the relationship if the negotiation can be done in a positive manner. 

I like to recommend to people a really good book on negotiation. It's called "Never Split the Difference: How to Negotiate as If Your Life Depends On It". It's written by a former FBI hostage negotiator. And it is a very interesting book because it really emphasizes the importance of listening to your negotiating adversary, even in a high stakes situation like the hostage-taking. A very, very good book given that gentleman's experience. 

Negotiation. If you can negotiate through communication and compromise that can preserve the relationship. Again, it really depends on the parties and on their the degree of good faith that they have. 

We'll sometimes - Fair Legal will sometimes - coach people on how to negotiate directly with the other side on their matter because, hey, if they can solve the problem without having to engage my services or without having to go to court they may get a better result and they might even get a result, they wouldn't otherwise get in court simply because of - the courts oftentimes won't get involved in really minor issues, so if you've got a minor issue and if you can figure out how to negotiate that minor issue efficiently, that's better than going to court.

Some of the cons of negotiation? Well, just like the mediation, there's no guaranteed outcome. Again, just like mediation is not appropriate, if there is a power imbalance it maybe time-consuming and stressful. And, again, there's limited legal protections. 

I also wanted to say, one of the downsides to mediation is that the solutions may not be appropriate in the circumstances. If you have a very serious situation that needs to be resolved and there really is no right answer that involves compromise, well then you shouldn't be going into a mediation or alternative dispute resolution if you really do need the right answer rather than any answer. 

We've talked about the pros and cons and I thought, well, it's important to - if you're going to engage in any alternative dispute resolution process - I think it's important to get ready for that. And here's some tips on that. 

First off, you want to understand the process that you're getting involved in. And that reduces some of the uncertainty going into the process. So, for example, you know, mediation will typically start with a mediator describing what their role is, describing that it's confidential and it's private, that there's certain expectations regarding respectful communications during the process. If you have not heard any of those things until you're sitting there with the mediation about to start, you may be taken by surprise, because that may not have been what you were understanding the process to be. If you go into an arbitration thinking that the arbitration is going to be like a mediation, then you are going to be taken by surprise and may not be adequately prepared.

One of the topics that we haven't talked about here is mediation/arbitration, and that's a process where it starts out as a mediation, but then ends with an arbitration if parties don't agree. And I'm not a big fan of that process because the process is very different - that's why I mentioned it here - because in mediation, for mediation to be successful, what you have to do is go into it with an open mind, be willing to compromise, really listen to the other side, try to reach agreement. And part of that might be being vulnerable. Being willing to admit to the weaknesses in your case. Well, if you're going into an arbitration, you want to put your best foot forward, and if you know that the arbitrator's going to make a decision one way or the other, what you're gonna do is really emphasize the evidence that you have that is in your favor for the result that you want. That's a very different kind of process than a mediation process. 

So if you start with the mediation process and the arbitrator sees that you are willing to compromise on a particular point, the arbitrator might turn around and say, well I think we're just - that's a decision I'm going to make, even though the other side had been wanting to do more. It just makes it really messy because the arbitrator can't unhear the things that were said during the mediation. 

So I'm not a big fan of mediation/arbitration, or med/arb is the other thing that it's often referred to. I don't know how you can realistically untaint that process.

But, anyways, that's my view. It's not necessarily the view of other professionals. 

Second tip is: Practice active listening. This is in every case. It means listening to what's being said. Asking clarifying questions. Repeating what has been said to you in a way that indicates that you are actively listening and that you're understanding what's being said. Asking for confirmation that you're understanding things correctly. All of those are components of active listening and they are important for all alternative dispute resolution processes. 

Having some idea as to the range of reasonable outcomes that are possible - clearly I've missed a few words here - I think it's important going into a mediation. I had a client that wanted to do mediation fairly early on in the process and off they went to the mediation, and then when I got the mediator's report afterwards, they had very readily agreed to give up some significant rights without realizing what those rights were. And, unfortunately, that really complicated the independent legal advice that I was being asked to provide after the fact. They just didn't realize. 

So I think you have to have some idea. And where that is particularly important is on things like spousal support. But it can come up in other areas like parenting. And if you're going into the ADR process like, well, you're the the man, you're not going to get significant parenting time with a young child, that's not necessarily true. And so that's not necessarily a reasonable outcome. So going into an ADR process without really knowing what the possible outcomes are is, I think, you're doing yourself a disservice. 

Another tip is: Know the facts of your case, and gather documents, especially financial disclosure. 

And this is kind of a pet peeve of mine. There are some mediators that don't realize the importance of having full financial disclosure before resolving issues of property division and support. The financial disclosure is really important. And it's not enough to say to one or another party: "Well, are you satisfied with these documents", without having some context as to - or giving that party some kind of context as to - whether it's reasonable to rely on those documents.

I had one case where my client was insisting that her husband had an income of, I dunno, let's say a hundred thousand dollars a year. And I said, well, we should get some kind of disclosure on that. And she was very resistant to it. And I said, well, look, we're in January now, why don't we get a pay stub for, you know, for his last pay for the end of the year. So she reluctantly agreed that that's what we had asked for. And the pay stub showed a significantly higher income than what she had insisted was the case. And, you know, I thought, well - so I asked her about it and she said, well, I knew that. Well, didn't appreciate my ability to provide relevant and good legal advice in that kind of situation is severely compromised if the approach to the facts is that cavalier, shall we say. 

So I think it's important. And, on the issue of financial disclosure, you can go on the court's website and there is a standard financial disclosure that is ordered. It's not all the disclosure that would be necessary in every case, but, you know, 90%+ of the cases, that kind of disclosure is going to be enough. You know the facts of your case as to whether there might be something missing. 

And, really, you know, I think it's necessary to treat it seriously. You might be going into this ADR process thinking you know your party, the opposite party. You may not. I mean, that's part of the reason why there's a breakdown in a relationship. There may be stuff going on that you just simply don't know about. So getting that financial disclosure, I can't stress enough, it's really important. 

And then, lastly, be prepared to compromise sensibly in the case. So, going into an ADR process, you should know what's important to you. You should have some idea of what's important to the other side. And have some idea as to what areas you'd be willing to compromise in order to get an overall result.

There are some ways to approach that process that I think will also lead to a better outcome. So, for example, going into an ADR process, a negotiation, or even a mediation with an opening position which is really your best offer, that you aren't willing to move beyond that, because you've come up with what you think is the fairest resolution, and so you thought, well, I'm gonna keep this process really short, I'm gonna open with that. Well, here's the problem when you do that is if you open with what you think is - now, maybe it is. The fact that it is truly the best solution for the dispute. You have given it a lot of serious thought and this is what you're going to do, you're gonna open with that. Well, fundamentally, I think that shows some degree of disrespect for the other party because it's saying you've got the good ideas and you don't really care what they might have to say because they're not likely to come up with anything better, and, after all, you're being really generous to them, so they should accept your proposal. 

Here's the problem. If they don't accept the proposal, because they would at least want to feel like they're having some kind of participation in reaching the resolution, you are going to be very upset that they're not taking your opening position as being, you know, a really good offer, and that's not good for the process of reaching an agreement.

Similarly, so you might be upset if they don't accept your offer, and, likewise, if you are unwilling to budge from your initial offer, then the other side, begins to suspect that you're not participating in this process in good faith, and there must be something more to it, and so you run the risk of jeopardizing the possibility of getting to a resolution, ironically, by starting with what you think is a great resolution.

So that's why it requires a bit of preparation to think about what are some ideas that, yeah, okay, this would be really good to get this, but it's not that important to me. But, you know, let's put it out there. Let's be willing to find out what the other side wants first before presenting this as a final offer. Maybe you don't even have to disclose your final offer position until the other side essentially proposes it. And then you could say, well, yeah, that sounds really good to me. And now you've got an agreement. Again, part of that preparation, there's people who can assist with things like game theory and ways of analyzing the positions of the parties. That's beyond my expertise. Beyond what we can talk about here. 

There are some approaches to - it can come up in the arbitration case, where sometimes arbitrators will say, let's decide this case this way, let's do a final offer arbitration. So each side puts their best offer out there, and the arbitrator, they can't come up with anything else other than choosing between those two proposed outcomes. So that's known as Final Offer Arbitration. You can imagine that there's some - you really do need to be thinking about how to approach it in that case because you want to put out a solution that you hope the arbitrator will choose. It's your proposal so that you're happy with it.

The theory behind Final Offer Arbitration is that it really does encourage both parties to think about what a sensible compromise is because if it's a ridiculous offer that they're putting out there as a final offer, then they won't there's a greater risk that their offer won't be the one that's chosen by the arbitrator.

So, going back to understanding the process, if you're in a Final Offer Arbitration, it makes sense to put your position - opening position - as a reasonable offer because that's what the arbitration process does, under the Final Arbitration process. But starting with that in a mediation is definitely not a good idea because you can torpedo the prospects of a successful resolutions remediation.

So those are some comments that I have tonight. There's tons of material that you can study on the process of Alternative Dispute Resolution. The training I took to be a mediator took a week. It was a week-long training. So I've tried to compress that into 45 minutes. So there you go. I'm sure there's some questions and I may not be able to answer them all but I'll give it a shot. 

Melanie Seneviratne: Okay, great. So I'll start with a few questions here. How are mediated or arbitrated outcomes enforced? 

Charles Fair: Well, a mediated outcome has to be put in writing and and then it needs to have - especially if it's dealing with property, it needs to have independent legal advice. And once you've done that process, then it is, if the other party isn't following it, you can go to court and say, hey, this is the agreement that we reached. I'm trying to enforce that agreement. 

It's much like enforcing any other kind of contract. If you can show that there was truly an agreement that was reached and everybody signed off on it, and there was independent legal advice saying that they were advised of their legal rights and they still agreed with this, then the courts would enforce that as a contract.

Now, you can appreciate that going into court to enforce a contract is not necessarily a slam dunk process. There might be defenses on as to why this mediation agreement should not be enforced. You know, the facts may have changed. There might have been - there's all all sorts of things. 

So enforcing it is like enforcing a contract. It might be a more time consuming process. 

Arbitration is a little different and, because the arbitration is done under the Arbitration Act, once you have an arbitral award, it's much easier to enforce it because the court will enforce it as if it was the court making the decision. So, now, you gotta do some steps to convert that into a court order, but that's essentially the process.

Melanie Seneviratne: Okay. 

Next question is: The ADR Institute of Alberta provides the list of certified mediators, ADRIA teaches and certifies only the interest-based system of mediation and no other. What has been your experience with that system and does it work to resolve family law conflicts? 

Or have you even used it?

Charles Fair: Well, interest-based negotiation is where you are - it's certainly my preference across the board. So when you're talking about negotiation, you can talk about it like positional bargaining. You're trying to buy a car from somebody and you offer a really low price, and they say, well, this is a very, you know, vintage car, I want more money for this car. And so they quote a high price. And you argue about it for a while and you come up with something in the middle. And it might work for buying a car. 

And you may both be expecting that your price is going to be, you know, somewhere in the middle between those two positions. So we call that positional bargaining. 

Interest-based bargaining is - really the idea is to come up with a win-win solution. So what you want to do is try to figure out what interest each party has. And I think that's a much more appropriate way of approaching any ADR in family situations.

So you would think, well, what's in the best interest of the children? You notice that word is right there. That's the test for, you know, decisions regarding children. Regarding parenting. The legal test is what is in the best interest of the children. So you gotta be prepared to have a discussion about what the interests are.

Interest is, you know, children to have a stable home. Okay, well that might not be possible now that they've got two homes. So now what are the interests. They need to be free of being exposed to conflict between the parents, right? So, you know, that's an example of - you can start using those interests to start finding ways to reach agreement.

And that's ultimately why interest-based negotiation gives a better result, because you are - the interests of every party are being considered.

Melanie Seneviratne: Okay. So the next question - sorry, I just lost my place there for a sec - is: "If a party agrees to mediation or collaborative solutions, but then acts in bad faith, thereby wasting time and money, how can these bad faith actions be put before the court to gain enhanced costs? Especially as many use the constant "without prejudice clause".

Charles Fair: Okay, well, there's a whole bunch of stuff in there. 

I didn't talk about collaborative law partly because I don't want to get into trouble over my comments, but I'll wade in on this. 


So collaborative law, for those who may not know, is a process whereby the two lawyers, and the two clients, and potentially one or two other experts, will all sign on to a process that says, if we can't reach an agreement here, then the lawyers and the third party, presumably, would all have to get off the file, and the clients, the parties, would have to go get new council, new experts, to help them resolve their dispute in the court system.

It sounds really good. This is why I'm gonna get to get myself in the trouble. Because it's like the penultimate in alternative dispute resolution because they're saying, you guys gotta, you've got to reach agreement. And we're so committed to this idea of reaching an agreement that we're gonna get everybody to sign onto it. Sounds good. 

However it can be abused. Somebody can go into it with bad faith. And not negotiating in good faith. 

Here's another thing that is my particular perspective, and I don't know that it's shared by very many people, but it's my perspective. That - well, there's a couple of things. One is that, when a lawyer signs onto a collaborative law process, that puts the lawyer and the client in a conflict of interest. The lawyer, the collaborative lawyer, has an interest in reaching a collaborative agreement. And when the client is raising concerns about the agreement that is being proposed, the lawyer, who has maybe an interest in keeping the file or an interest in maintaining their reputation as being a good collaborative lawyer, now is in a position of really having to push their client to agree to whatever's being proposed.

Now that's not necessarily a bad thing in the sense that, well, you know, part of what happens in the lawyer-client relationship is we have to give our clients advice as to whether a proposal is a reasonable proposal, and that should be done based on our perspective, from the lawyer's perspective, what our perspective is on the facts and the applicable law and what a court is likely to do.

I think that adding the, well, I've got to protect my reputation as a collaborative lawyer into that mix, it complicates or taints that process. 

Now, I recognize that a collaborative lawyer who's doing their job correctly is not going to do that, so this is, maybe, a minor point. But that's one of the things that I'm concerned about. And it's because I've had clients come to me and say, well, this is what we agreed to through the collaborative law process and my lawyer just wouldn't listen to me when I said this wasn't going to work. And, sure enough, after we reached the agreement, it only took a matter of weeks or months before it became a problem. 

So I'm not making that up. I mean, this can happen. 

The second thing that I don't like about the collaborative law process is that collaboration should not require me to get you to sign an agreement that says that you're going to practice collaboratively. 

I view myself as being willing to practice collaboratively. If you're willing to practice collaboratively with me, then great, we're going to get to a resolution. But if you're not going to negotiate in good faith, then we're going to go to court because that's how I get you to the table to reach a resolution. So to solve that problem by getting somebody to sign an agreement that says that they're going to behave themselves is, I think - it shouldn't be necessary. 

To me, it doesn't matter whether you are going to - if you're on the opposing side of me. It doesn't matter to me whether you're gonna practice collaboratively or not. If you don't, I'll go to court. If you do, then we're gonna collaborate. I don't like taking court off the table. 

Now, those are a couple of points. One is the conflict of interest, and the other one is, I shouldn't have to get you to sign on to be collaborative in order to have a collaborative process. Those are very much my perspectives on this, and I'm sure there's lots of people who have been happy with the collaborative process. 

Going into the collaborative process in bad faith, and then, you know, you want to try to get - sorry to answer the last part of the question, which is how do you get enhanced cost against somebody who's approached the collaborative process in bad faith - I'm gonna say is very difficult because the whole point of a collaborative process is that it's intended to be private and without prejudice, and the question of cost really only comes later on down the road when one party has been making reasonable proposals and the court ultimately agrees with them and, you know, substantially awards in their favor, are even better. Then the party who hasn't been making those kinds of offers will have to pay enhanced costs. 

It may be a little cleaner to show that in a non-collaborative law context, under the formal collaborative law agreement process, in the case of just regular negotiations. I hear the reference to "without prejudice communications", well, you gotta, if these are not reasonable proposals that are being made without prejudice, then ultimately when it comes to costs, anything that's without prejudice now can be considered by the court when determining the reasonableness of - when determining costs. 

So the court's already made a decision. Now the judge turns their mind to the question of costs. And, at that point, you can bring out all of the "without prejudice communications". 

That being said, in family law in particular, winners and losers are sometimes hard to see - it's sometimes hard to see who the winner and the loser is in the family law case, when there are so many moving parts. 

You know, sometimes you get a clear win. Yes. And you'll get enhanced costs if the other side has ignored reasonable offers that you've been making. But it's a difficult, difficult process.

And, remember, if your goal is to go into the collaborative or ADR process with the idea that you're gonna get the other side with enhanced costs if they don't cooperate, well, there is some argument that you may not be going into this with good faith. If your emphasis is on trying to get a favorable cost order at the end, that's a tricky game to play.

Melanie Seneviratne: Okay, great. I think that's it for time today. So, Vanessa, I will let you do the 

wrap up.

Vanessa Farkas-Brahmakshatriya: Yes. Thank you so much to everyone who came and participated. This is a very important topic as Alternative Dispute Resolution is so important. And many of the men that we serve do their best to go through these channels. Nobody really wants to be in court. 

I suppose I'm not supposed to editorialize in my goodbye, but thank you very much to Charles and Melanie for volunteering your time and your expertise. 

Charles, thank you very much. 

One of the things I love about having Charles here is he deals with both criminal law and family law. And so, the areas where those intersect are some of the areas that hurt people the most.

And so, please consider visiting our website at - I'll put it in the chat again - to find on the calendar our future webinars with Charles. 

We will not have one in May, but we'll be back in June and most months we have it on the fourth Thursday. And there are many very good content rich topics.

So come back and bring your questions. Again, thank you so much. 

Charles Fair: It's been a real pleasure.