The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50837
LEGAL REPOR T: WILLS , TRUSTS , & ESTATES Growing pains Collaborative law has taken off with the family bar but is struggling to get a foothold with estates law practitioners. BY JUDY VAN RHIJN T he last 10 years have seen a phenom- enon sweep through the family law community in the form of collabora- tive law. The hallmark of that movement has been that lawyers are only retained for the purpose of negotiating a settlement, and if that fails to eventuate, the parties have to find new counsel to litigate the mat- ter. The collaborative approach turns away from aggressive, adversarial behaviour and favours interest-based negotiations. While collaborative family law is growing exponentially and has almost acquired mainstream status, it is very much in its infancy in estate law. Practitioners all over the country extol the concept as an excel- lent fit for estate matters. Why then are so few estate lawyers actually doing it? The landscape of collaborative family law is strewn with international, provin- cial, and local associations, but collab- orative estate law is evidenced by the odd case or willing individual here and there. The first formal attempt to promote the practice came in Alberta in 2003 when the Collaborative Estate and Trust Lawyers Society of Alberta (CETL) was incorpo- rated. Bylaws were written, protocols were discussed, and a membership of about 40 lawyers was predicted. Seven years on, CETL is still not active although attempts are being made to kick-start it into life. Anne de Villars, co-founder and presi- dent of CETL, says the movement "hit a hiatus" before the groundwork was com- plete. Renewed interest in the group stems from a new Wills Act expected in Alberta next spring that will require anyone mak- ing an application to the court in an estates dispute to be advised about alternative dispute resolution options. "This is a new requirement for estate lawyers," says de Villars. "We are in the process of gearing the thing up again." The slow progress results from a lack of enthusiasm for collaborative law's key concept, notes de Villars. "The thing halt- ed itself because of the requirement that if it doesn't work you have to get off the file." She has done a couple of estate files in a collaborative way but not formally, and not with an agreement to lose the client if negotiations fail. So is it necessary to endorse the fundamental approach to get results? "In the collaborative law com- munity, there is some discussion whether that clause is required. Maybe it's not a hallmark in estate law." Collaborative Practice Toronto is grap- pling with the problem. It amended its bylaws in 2007 to permit all disciplines of law to join, but so far no one outside the family law bar has. Co-chairwoman Jill McLeod agrees the barrier may be the signing of the restrictive participation agreement. "There are firms who have represented some families for generations. The firm might lose the client if they start building a relationship with another firm. We're not going to be rebellious and say we're getting rid of the disclaimer but we could modify it so the individual lawyer is not profiting from the fact of a change. For instance, estate lawyers might be more comfortable if another lawyer in their firm takes over. Ultimately we want ADR to be one big happy family — that's a philo- sophical goal — but the public needs the service so it can't be all about doctrine. We have to be practical in how we create access to this." Ian Hull of Hull & Hull LLP in Toronto agrees. "Personally I think the threat of being kicked off the file is unnec- essary. It's an excessive consequence of www. C ANADIAN Law ye rmag.com OC T O BER 2010 49 PIEERE-PAUL PARISEAU