Tuesday, February 2, 2016

Arbitration v Collaborative Practice

Arbitration v Collaboration

Family Law Arbitration is becoming increasingly popular as the way many separating couples select to reach a separation agreement.  The big advantage Family Law Arbitration has over traditional litigation is that arbitration is fast, fair and private.  In some jurisdictions, arbitration is called Private Judging.  In Arbitration, you hire you own private judge rather than using the expensive and public court system.

In British Columbia, certain lawyers may become qualified under the Arbitration Act of BC to conduct family law arbitrations.  Instead of spending tens of thousands of dollars and endless amounts of time through the court process, couples can reach the same final enforceable resolution through arbitration in a matter of weeks for a fraction of the cost.  Final arbitral awards are converted into judgments just as Supreme Court decisions turn into judgments that can be enforced. Arbitrators have some of the same powers of a Supreme Court judge such as the power to subpoena a witness.

Arbitration and collaborative practice are similar in that they are both methods for separating couples to reach a final and binding resolution of all legal issues arising through their separation, without going to court.

Arbitration and collaborative practice are similar in that they are both private.  That is, all discussions in arbitration and collaborative practice are confidential and will never be made public.

How does family law arbitration differ from collaborative practice?

Arbitration and litigation are similar in that in each case the parties are handing over the decision making to a third person. 

In Collaborative Practice, the decision making always remains with the parties.  Collaborative Practice is about building consensus.  About 90% of collaborative cases reach a final resolution, and about 10% fall out of process.  That is remarkable when you think about it because it means in 90% of collaborative cases, the parties reached consensus on every item and they did not need a third party to make decisions for them.

Susan Kurtz of the Collaborative Law Group of Nelson is qualified as a Family Law Arbitrator, a Mediator and a Collaborative Lawyer.

Tuesday, August 12, 2014

An Ounce of Prevention

In most cases, if your lawyer starts a family court proceeding on your behalf before you have first spoken with a collaborative lawyer, you are being done a disservice.  Litigation lawyers do not comprehend the true nature of collaborative practice and therefore they are not in a position to describe the benefits of the collaborative process to you.  To understand the option of collaborative practice which is available to resolve your legal issues, you should talk to an experienced collaborative lawyer.  There are many highly skilled and experienced collaborative lawyers in British Columbia, including in Kelowna and Nelson, as well as Vancouver and Victoria. You can locate an experienced collaborative lawyer at www.bccollaborativerostersociety.com.  It may well be worth your time and trouble to explore collaborative practice before you start a lawsuit.  You may avoid unnecessary stress, time and cost to you. 

Wednesday, June 4, 2014

Vancouver Courier Article on Collaborative Practice features Nelson Collaborative Group Lawyer, Danny Zack

Nelson Collaborative Group Lawyer, Danny Zack, was featured in a Vancouver Courier article on May 29, 2014 called "Mutual Respect the Goal of Collaborative Divorce".

Follow the link below to read the full article.


Tuesday, January 14, 2014

Make Peace, Not War

Imagine, lawyers working together, not in opposition to each other, for the benefit of each member of the family in transition.

That is the Collaborative way.

Tuesday, December 10, 2013

The Children's Fire

The Children's Fire is the foundation of Collaborative Law, explained beautifully in the you Tube video called The Children's Fire. http://www.youtube.com/watch?v=1JchSac-VP0

Thursday, November 28, 2013

Armadillo Races

I went to San Antonio last month for the 14th Annual Forum of the International Academy of Collaborative Professionals.  San Antonio is an experience like no other.   While I was strolling down the River Walk, I heard my name called and saw it was Ryan Martin of Nelson heading to the Buckhorn Saloon from whence I had just come.  There are hundreds of dead heads on the walls of the Buckhorn, and the real Bonnie and Clyde getaway car is on display, complete with tons of bullet holes.   I also attended a gun rally at the Alamo where for two hours citizens could wear their guns openly and did not have to conceal their weapons while they talked about how they could wear their guns openly if only they broke away from the United States and the constitution which prohibits them from wearing guns openly.  There were hundreds of loaded assault weapons in people’s hands, kids meandering about.  It seems so strange to me that Americans feel the need to protect themselves from Americans.  When I asked one young man with an automatic assault weapon what he plans to shoot, he said, simply, “Everything.”  San Antonio is wonderfully Mexican, beautiful and warm, although I note today only it is only 4 degrees there.  I rode a long horn steer and was in an armadillo race.  This was my 9th IACP Forum.  It is always so rejuvenating to spend time with like minded professionals from 25 countries.  The theme of the forum this year was “The Power of Collective Wisdom”.  It was a very powerful gathering.  One speaker in particular had a big impact on me when she spoke of conflict being a gift of evolution.  She described how we get excited and motivated when we disagree with another, and that stimulates change, evolution.  I was introduced to a short You Tube film called The Children’s Fire, which has been imprinted on my mind forever.   

Wednesday, November 27, 2013

Beginner's Mind

Being a collaborative lawyer means being in a place of continuous learning. You can be sure than any professional listed on the BC Collaborative Roster Society website www.bccollaborativerostersociety.com is committed to constant ongoing training.  I totally enjoy all the learning.  Recently, for instance, I learned that memory is completely unreliable – that we change and recreate memories every time we think them.  You can read an article about this in Discover Magazine by Kathleen McGowan.  All these important bits of information outside the conventional practice of law have changed the way I think about how to help my clients.  For instance, about 10 years ago, I learned that rejection can dramatically reduce a person’s IQ and their ability to reason analytically, while increasing their aggression.  This piece of information changed the way I behave when serving a client who is feeling rejected. I have learned how to better provide legal services through learning how to collaborate with other professionals.  I love learning this way, with others, collaboratively.

Wednesday, July 10, 2013

Collaborative Lawyers Go To School

Being a collaborative lawyer means constantly improving my skills through continuing education. Highly difficult clients challenge the boundaries and accountability required by the Collaborative process. These cases call for the effective intervention of a highly proficient professional team. Advanced Collaborative practitioners recognize these especially difficult cases as an opportunity to further deepen their skills and maximize the collective wisdom of the team.

In June, I completed the Advanced Mediation 3 course for lawyers.  I also completed a course designed to help collaborative lawyers and mediators screen for family violence.  In that course we learned when one spouse perceives a power imbalance, whether there actually is a power imbalance or not, mediation or collaborative practice will likely best meet that individual’s needs.  This is because the court system is not sensitive to the emotional needs of any litigant.  But a power imbalance in negotiation can be addressed through mediation and collaborative practice by providing a safe place for negotiation to take place. The reason the room is a safe place to negotiate is because:
  1. Each party has their own lawyer at their side;
  2. The lawyers have signed an agreement to never appear for that client in court against the other party, ever;
  3. Each lawyer is also a certified mediator, and the lawyers are using co-mediation skills while providing independent legal advice to their respective clients; and
  4. Mental health coaches are used when needed.
The best training for collaborative professionals is the annual Forum of the International Academy of Collaborative Professionals.  At the annual Forum, participants attend a myriad of seminars and network with other Collaborative professionals from around the world.  I look forward to attending my 9th IACP Forum this year.  

Tuesday, March 26, 2013

Nelson Collaborative Practice Team Is Growing

“I am currently a practicing social worker, working on my masters in counselling. I recently attended the three day basic training for collaborative professionals at the Collaborative Institute in Phoenix, which is part of the International Academy of Collaborative Professionals. I look forward to completing the requirements in order to practice on a collaborative team as a divorce coach and child specialist in the West Kootenay. The collaborative model has the best interests of couples and their children in mind and works to make the best future for the entire family, despite the divorce. I hope the collaborative law option is one that many will consider."      Lisa Machek

Tuesday, September 25, 2012

The New British Columbia Family Law Act

The law in British Columbia about how family law issues are resolved is about to drastically change.  The new Family Law Act comes into force in March 2013.  Starting in March 2013, family lawyers will be called “Family Dispute Resolution Professionals” or FDR Professionals.   Other professionals, such as counsellors, can also be FDR Professionals under the new legislation, and thereby take on a role in the dispute resolution process formerly occupied only by lawyers.  The new Family Law Act actually spells out that “Resolution Out of Court is Preferred”! Lawyers will be obligated to set out to the client the alternatives to going to court, and what resources are available to the client locally, and then to provide a Certificate showing that he or she has so advised the client, before that lawyer can commence a court action for that client. The new Family Law Act codifies many of the principles of collaborative practice as set out by the International Academy of Collaborative Professionals.  This is a giant leap in the right direction to protect children of uncoupling parents from harm, and to encourage and foster peace and understanding between uncoupling parties.  This legislation is in stark contrast to the current common practice of going to court to have each party attempt to prove the other wrong.  The new Family Law Act recognizes that often the non-legal issues, that is, the emotions or psychological issues, are really fueling the dispute, not the legal issues.  Best of all, the new Family Law Act encourages a team approach to dispute resolution in family law cases in British Columbia.  Halleluiah.  This has been a long time coming.  I look forward to seeing how this huge change in British Columbia family law is going to play itself out.  

Thursday, July 12, 2012

New British Columbia Collaborative Professionals Roster Website

Finally, there is a website in British Columbia where you can locate experienced, well respected collaborative professionals!  On May 10, 2012 I went to Vancouver for the party to launch the new website which can be found at www.bccollaborativerostersociety.com .  If you are looking to engage a collaborative professional, you probably want the services of a professional who is experienced, rather than a rookie.  Now the task of finding an experienced collaborative professional in British Columbia has become easy.  To be a  member of the Collaborative Roster Society of British Columbia, a lawyer must have conducted several collaborative cases and be recommended by peers.  I love collaborating with my colleagues rather than working against them!

Monday, January 30, 2012

Calling Collaborative Lawyers to the Kootenays

Today, I found myself wondering, as I often do, why there are no other collaborative lawyers besides me living in the East or West Kootenays. I am passionate about collaborative practice. So far, in the West Kootenay about 100 couples have used the collaborative way to resolve their legal issues at Resolution Place. I am involved with the International Academy of Collaborative Professionals. But I can’t offer collaborative practice to my home community by myself. The process requires each party to have their own collaborative lawyer. So, we import Vancouver lawyer, Danny Zack, here to Nelson to work on almost every collaborative case we have in the Kootenays.

Not every lawyer is suitable to be a collaborative lawyer. As a lawyer, I must absolutely trust the collaborative lawyer with whom I sign a Participation Agreement. Danny’s the best. I love working with Danny, who has been practising law for about 40 years. Danny is considered by many to be the British Columbia guru of collaborative practice. I am grateful to have the opportunity to hone my collaborative legal skills on every case I work on here in Nelson, by working with Danny, who perhaps is the most experienced collaborative lawyer in British Columbia.

Together Danny and I work, in every collaborative case, to create a safe place where our clients can negotiate their legal issues. With Danny, it is easy to help our clients find that safe zone. It is an honour and a pleasure to work with Danny. But, it would be more convenient and less expensive for our clients if there were other collaborative lawyers resident here in the Nelson area.

I have been offering collaborative practise through my Nelson law firm for almost 10 years now. Where are you other collaborative lawyers? Working in a collaborative way with my learned friends is so much more satisfying than working against them through litigation.

Collaborative practice is a better way to practise law. It’s easier on the lawyer’s health. Perhaps, part of the reason for the absence of other collaborative lawyers around here is that there is an overall shortage of lawyers in rural British Columbia, period. That’s why the CBA has the R.E.A.L program, where several rural lawyers are paid each summer to employ a third year law student with the hopes that student will see the obvious merits of practising law in a rural community, and return to work after completing law school. Rural lawyers’ plates are full, why would they want to stop work to retrain as collaborative lawyers?

Maybe it’s because collaborative practice is, after all, contrary to what we lawyers learn at law school, which is to “position” our clients. Danny and I work hard together at helping our clients avoid getting entrenched in positions, and instead to focus on creating solution options that try to meet the needs, values and interest of each person affected by the decisions being made.

Are there any good collaborative lawyers out there who would love to have a rewarding and interesting career as a collaborative lawyer here in Nelson, British Columbia, the Queen City of the Kootenays, surely one of the most beautiful places on earth? Your fascinating and rewarding collaborative law practice may be waiting for you here on the shores of Kootenay Lake. Come co-mediate with me.


Susan Kurtz
Collaborative Lawyer Nelson, BC

Wednesday, January 12, 2011

Why Practice Collaborative Law?

I was recently asked why a lawyer would choose to practice collaborative law. I cannot speak for all collaborative lawyers, but I can tell you about my own experience. When I was in law school, I had no idea of the lack of job satisfaction I would encounter in the practice of law. But, well into my legal career, after a hard-fought win in the Supreme Court of British Columbia or the Queen's Bench in Calgary, I found myself plunging into despair. By the time I reached the women lawyers Barrister's Room from the courtroom, before I had even removed my gown, any elation at proving my case and doing a good job, had evaporated. And this was after a win. On the days that I didn't win, it was even worse. To be a party to a courtroom blood bath where there are no winners, where each party is bankrupt, financially and emotionally and physically, gave me no job satisfaction. For the first 15 years of my life as a lawyer, I often found myself sitting across the desk from people who were at their worst hour, feeling like I had nothing to offer but poison. This was especially the case after 1993 when I moved to Nelson BC and began to practice more family law. These legal battles often took years. Often, beaten down and feeling that I had to quit the practice of law, I sought out mentors who encouraged me to battle it out, who told me that my presence was necessary in the courtroom, that change is always difficult, that my voice was important on the front. But I felt like a fish out of water in the courtroom, despite my appearance, all dressed and ready for the performance. I am a yogi. I believe in contributing to the strength and wellness of my community. The microcosm of Nelson accentuated even more the harmful effects of litigation on the community than had been apparent in the big city. The purpose of a judge is to decide who is right and who is wrong; who wins and who loses; who is at fault and who is not. Lawyers are trained to "position" their clients into the best position they could expect a judge to determine on a good day in court, and then drive their clients to those positions. From the outset, a lawyer is gathering information from you to prove your case. This is becasue the lawyer thinks his or her job is to prove you are right. However, I have never felt that my job as a lawyer was to prove that you are right. My motto has been, do you want to be happy or do you want to be right? I have always felt that my job was to help you come to a resolution of your legal issues. Our court system is about proving who is right. In marriage uncoupling, great emotional or psychological issues arise, but the legal issues are the same for everyone, and there are only two legal issues: children and money. Forcing couples to take the question of children and property division into a courtroom, where the game is to prove who is right and who is wrong, is a travesty. This is more glaringly obvious if the couple has children, for the court system forces the parents to prove the other wrong in order to resolve the legal issues of developing a parenting plan and figuring out child support. This blows the ability of the parents to effectively co-parent into the future out of the water. This, in turn, causes our whole society to become weak since there is ample research to show that children who are products of an acrimonious parental uncoupling are likely to suffer great handicaps as adults (The Unexpected Legacy of Divorce, by Judith Wallerstein). Personally, I suffered with the decision to stay or not to stay in law. I am not alone in this. The Lawyer's Assistance Program of BC offers regular seminars on "What to do with your Law Degree Other than Practice Law". There are many depressed lawyers out there. And no wonder. You would be depressed too if you had to spend all of your time on a battlefield or making the ammunition to harm children in your own community.
So, when the concept of Collaborative Practice crossed my path one day in 2002, I grasped on to it like the saver it is. I have been dedicated to bringing collaborative practice to my home community ever since. I am a very active member of the International Academy of Collaborative Professionals, and I frequently work with members of the Collaborative Law Group of Vancouver. There are no other practicing collaborative lawyers in the East or West Kootenays, although I have not given up attempting to bring them into the fold. There are so few lawyers in the rural areas of BC that the lawyers have more work than they can handle. They don't want to get retrained to do something else. So I continue to communicate with lawyers throughout BC and Alberta, and the law schools, too, about the benefits of developing a collaborative practice. Collaborative lawyers come from the Okanagan and Vancouver to work on a team with me here in Nelson. As a collaborative lawyer, I feel that I am a healer instead of a harmer. I see my job as taking the hand of my uncoupling client and helping him or her cross treacherous waters to the other shore, I place the person on solid ground so he or she gains traction to move forward in life. It doesn't matter whether he or she knows how dangerous and treacherous the waters are - it is enough that I have the experience to know the dangerous territory through which we pass together. In a collaborative practice, I have the opportunity to hold a sacred safe space in my office, a place for the couple to communicate, to forgive, to end conflict despite emotional turmoil. I give a workshop at the local college entitled "Spiritual Divorce" in which I invite couples to explore the law of forgiveness, the law of surrender and the law of acceptance while they are exploring the laws of family property division and child support. I love working on a team with the other professionals - lawyers, child specialists, psychologists and financial planners. I love combining my legal education and experience with my colleague from the outset of a case for the mutual benefit of our clients, instead of paring my great skill against my learned friend's expertise. My office staff suggest to a new caller that he or she bring in the spouse for the initial interview so that they both learn the four routes to a Separation Agreement and the likely time and costs of each route before either takes any action. Most lawyers won't see a couple together because of a perceived conflict of interest. However, I am not giving advice at these initial consultations, but rather, I am giving information so I do not place myself in a conflict of interest, I do not gather "evidence" from either spouse at the initial consultation. After these initial interviews, the couple is often very grateful and I frequently get told "Thank you so much, Susan. I feel so much better now that I have this information. I can see there is a way out." Hearing this makes me feel useful. Being a collaborative lawyer makes me a beneficial contributing member of my community and a better person. These are some of the reasons why I choose to practice collaborative law.

Thursday, August 19, 2010

Lawyer Jokes

As a lawyer, I have experienced being shunned. When I was a litigator, I would sometimes walk into a social setting, like a grocery store or a beach, and whispers would start as some people followed me with their eyes, not in a good way. Invitations to dinner parties were sometimes revoked when the hostess learned that I am a lawyer who acted for "someone's ex". Even though I understand the principle of transference, my feelings still were hurt when I was shunned for being a litigation lawyer. After all, part of my job was trying to prove my client was right, and that necessitated trying to prove someone else was wrong. I did not like that part of my job. Nowadays, as a collaborative lawyer, I work with the other lawyer, not against that lawyer. We work together as a team for the mutual benefit of our clients. It's a win-win situation all the way around. And I no longer feel shunned in my home town just for being a lawyer. As a collaborative lawyer, I have the opportunity to spread peace and goodwill instead of flaming blame and fault. I promote forgiveness as a pathway to peace. In my small way, I can make this a better world.

Thursday, January 22, 2009

Creative Solutions in the New Economy

One of the main reasons a couple may remain under the same roof even in the unhappy situation where they agree their relationship as a couple is over, is because of the cost of physically separating. How can the couple contemplate existing under two household roofs while still earning the same family income? And in our new economy, how can the couple separate when the main family asset – the family home – is not likely to sell in the foreseeable future due to the quiet real estate market we are experiencing? The influences and effects of the new economy show even more vividly why the collaborative legal process is so attractive to separating couples over the court option. A judge’s hands are tied with respect to applying creative solutions. The courtroom is a place of blunt, inflexible justice, to be sought only when the parties in dispute have exhausted all other means of resolving the differences between them. But in the collaborative process, the parties are free to explore every possible solution that arises through the process, since the parties have opted out of the requirement of applying the strict law to the issues arising from their uncoupling. Now, more than ever, we need creative solutions to dispute resolution. The time for change is here.