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Keeping families out of court

Tara Kearsey
Northern News Services

Yellowknife (Aug 07/02) - A new response to family law disputes is keeping parents and children out of the courtroom.

Collaborative law is a new approach to practicing law. It has been used in Canada now for the past four years and is used as an alternative to court action and mediation which can be costly, stressful, creates more anger within the family and often puts children in the middle of the dispute.

Elaine Keenan-Bengts, chairperson of the Family Law subsection of the Canadian Bar Association NWT Chapter, brought two Southern lawyers to Yellowknife in June to offer collaborative law training to 18 local lawyers.

Funding for the two-day training session was provided by the Law Foundation and the GNWT.

"What happens with collaborative law is everything, from day one, starts on the premise that if you hire me as your lawyer, I will not take it to court. Your retainer with me is to negotiate a settlement," she said.

The lawyer for the second party has the same contract as well, she explained.

All negotiations then are conducted during four-way meetings.

"The beauty of it is, for clients ... the agreement is unique to them, it's made by them, they have control over things instead of the lawyers having control," said Keenan-Bengts.

The collaborative approach has been very successful in Medicine Hat, Alta., where court applications in family law matters have declined by approximately 90 per cent over the past 18 months, according to Keenan-Bengts.

Clients decide the agreement

"Lawyers rave about it because although the meetings themselves can be stressful and difficult, it's not up to them to make an agreement anymore - it's up to the clients," she said.

Keenan-Bengts has already begun using the collaborative technique.

"It was tough. There were tears, there were recriminations, there was yelling and the whole gamut. But in the end the parties came up with an agreement for the children that was unique and worked for them," she said.

And the unique approach is not only used in family law, but also works well with corporate and commercial disputes as well.

"I love the concept," said Keenan-Bengts. She has been practicing law for 20 years.

All along the way she told herself that there must be a better way of dealing with family law than dragging families into the courtroom.

And finally, the collaborative approach came along.

The approach will not work with all family disputes, but Keenan-Bengts is confident that once the NWT lawyers get some practice under their belts, "just about any case, except one with extreme violence involved, will probably be resolved" using the approach.

The second training session will be held in mid-September in Yellowknife.