Family law, Legal Practice Management, Quebec
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Collaborative law making inroads in Quebec

When Martha Shea summoned up the courage to ask former Madam Justice Claire L’Heureux-Dubé her take on collaborative law in Quebec at a family law conference six years ago, little did the Montreal family lawyer realize that she had sown the seeds to an organization that is now drawing attention from French-speaking nations.

Several months after L’Heureux-Dubé replied that “les Québecois are made for collaborative law,” Shea was by happenstance delegated to pick up L’Heureux-Dubé and bring her to a conference in Montreal that was paying her tribute following her retirement from the Supreme Court of Canada.

“And I thought ‘Oh, my God, I haven’t done anything about collaborative law,’” recalled Shea from her downtown Montreal office that was in a state of disarray following a recent move. “I was so determined that before she arrived and that if she asked me about collaborative law that I would have something to say, so a group of us got together and started collaborative law, thanks to Claire L’Heureux-Dubé.”

Founded in October 2002 by Shea, along with three fellow practitioners, the Quebec Collaborative Law Group has evolved from its humble beginnings into the world’s first francophone collaborative law non-profit organization, operates the first French-language website on the practice, and is helping to train French-speaking lawyers from Belgium, France and Switzerland. So far this year, the group, which has over 60 members, all of whom are lawyers practising family law, has trained 15 lawyers.

Conceived by Minnesota family lawyer Stu Webb after an acrimonious divorce case left him on non-speaking terms with a law partner, collaborative law melds the principles behind mediation with attorney advocacy and advice, and begins with the simple premise that most litigation cases settle. At its very core, collaborative law consists of two clients, each represented by their respective attorneys, who work together towards achieving a fair and comprehensive settlement. The ground rules are established between the parties from the outset. Indeed, everyone signs a binding agreement defining how the process will be conducted – and it remains into effect so long as everyone conducts themselves in good faith. Aside from the first attorney-client meeting, most of the process is held via four-way meetings. Lawyers are retained only to try and reach a settlement – if negotiations break down, then both collaborative lawyers must withdraw from the case.

It’s an approach that fits Shea to the tee. A seventh-generation Irish-Catholic Montrealer, Shea came to law late. A successful bookseller who worked 10 years for the now-defunct Classics book chain during the 1970s, Shea was drawn to law to become more socially active.

“I was brought up to believe that we lived lives of great privilege and therefore we had to give back,” said Shea. “So when I went to law school it was with a view of acting and being a participant in society – I wanted to offer something very concrete to people.”

After earning degrees in civil and common law at McGill University, Shea not surprisingly gravitated towards legal aid, something she did for 10 years before opening her own office in 1985 specializing in family law. In the meantime Shea also became a trained mediator. While mediation has proven to be an effective and powerful tool to resolve disputes, mediators cannot offer advice to either party. Part of the reason many clients prefer collaborative family law over mediation is the presence of their own legal counsel in the process, and the assurance that the client will receive guidance over their legal situation, points out Shea.

“Many clients would ask why I could not accompany them to mediation, and so I was looking for an alternative,” said Shea, who still does traditional litigation work. “When I heard about collaborative law, it was the perfect way to both accompany clients and do the other thing many clients ask – to settle without the Damocles of court hanging over them. So collaborative law seemed to fill what at that time was seen as a void.”

Collaborative law also melds well with Shea’s business experience and her belief in the legitimacy of participatory justice, an approach that engages everyone affected by conflict towards finding a satisfactory resolution. An alternative method of conflict resolution, participatory justice presumes that people are reasonably well-informed and want to engage fully in the dialogue and negotiations instead of leaving it all in the hands of counsel.

“I was in retail operations for 10 years so I have a solution-oriented approach,” said Shea, adding that her focus always centered on discussing and solving issues with clients. Law, therefore “as a dispute resolution mechanism has always made sense to me. And in collaborative law you’re working with clients to give them an understanding of their legal situation, and the appropriate resolution mechanism for that legal situation, given the personalities and objectives of the parties.”

But it’s been a tough slog, and not because Shea hasn’t been active. Shea, a member of the Barreau du Québec’s participatory justice committee, vice-president of the Montreal Lawyers’ Mutual Assistance Program, and formerly involved with the Canadian Bar Association, has hit the road promoting collaborating lawyering. While now gaining momentum collaborative lawyering has been slow to catch on in Quebec, partly because the approach is held in disdain by some traditional litigators, partly because some fear plummeting revenues, and partly because the concept is not yet fully known both within legal spheres and by the community at large. Shea herself now only has three cases using the collaborative law approach, and would like far more.

But Shea is optimistic that collaborative lawyering will eventually make deep inroads, thanks to more promotion, greater awareness due to the Internet, and a growing number of citizens seeking alternatives in conflict resolution. French-speaking lawyers hailing from Europe seeking to be trained by the Quebec Collaborative Law Group is just one of the encouraging signs that the approach is beginning to gain ground. So is the fact that there is sufficient interest in collaborative law that the group is now planning to expand beyond family law and delve into civil law sometime next year.

Indeed Shea compares the fate of collaborative law to mediation when it first made its appearance. “People went bananas about mediation when it first appeared,” said Shea. “They couldn’t believe that such an idea was coming down the pipes. But all of our work is beginning to pay off. It’s really beginning to pick up this year.”

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