Protocols of Lethbridge Collaborative Family Lawyers

The following protocols and related sanctions are designed to ensure the highest likelihood of success in reaching acceptable agreements on behalf of collaborative law clients. While it is recognized that in the circumstances of any given case, it may not be practicable or even possible to follow these protocols fully, it is important that each member be able to assure their client that the opposing client will also be counseled in a manner consistent with these protocols, that the opposing counsel will also be striving to achieve the same ends and to carry on negotiations in the same principled fashion, and that the violations of the collaborative law process will attract appropriate sanctions.

PROTOCOLS

In the handling of a Collaborative Family Law case, the members will endeavor to:

1. In an initial interview with any client or prospective client:

1. Provide an overview of the range of process options available to a client including the processes of mediation and collaborative law;
2. Explain the collaborative process and in particular
1. Review the Association's form of Collaborative Law Agreement;
2. Advise of the goals of facilitating
(1) Constructive communication;
(2) Full disclosure;
(3) Maximizing possible outcomes;
(4) Creating a safe environment.

2. In preparing a client for a first four way meeting:

1. Review the Collaborative Law Agreement again;
2. Prepare client for how lawyers can be expected to act and of what is expected of clients;
3. Review the needs of their client and those expected of the opposing party, both substantive and procedural, and identify in particular any pressing needs;
4. Assist the client to identify their specific needs, interests, priorities and goals, motivations and sources of satisfaction for presentation to the opposing party;
5. Encourage client to avoid developing or promoting specific positions until all facts have been mutually collected and all options generated and mutually explored;
6. Advise of the initial agenda to set the tone of negotiations, mutually identify issues and commence exchanging all facts possibly helpful to either party, but to not negotiate prematurely;
7. Estimate likely issues and identify all facts which are expected to be helpful to either party and commence collecting documentation for disclosure.

3. Meet with opposing counsel prior to the first four way meeting to:

1. Agree on location and facility arrangements most likely to be effective in the circumstances;
2. Exchange expected client needs and interests and make preliminary identification of expected issues and of areas of agreement;
3. Identify pressing issues;
4. Agree on any procedures needed to accommodate client concerns;
5. Agree on agenda and mutual goals for first session ensuring pressing needs are addressed;
6. Commit to exchanging as much financial information as available prior to first meeting.

4. At a first four way meeting:

1. Set a safe and positive atmosphere by
1. Seeking to establish a rapport with opposing client by
(1) Introducing self;
(2) Reviewing commitment to non-adversarial outcome and the need for any agreement to meet the needs of both parties;
(3) Demonstrating interest and concern for the opposing client's interests and feelings;
2. Signing the Collaborative Law Agreement;
3. Confirming mutual commitment to the process;
4. Identifying and agreeing on any further Ground Rules needed by the Parties;
5. Identifying and stressing the parties mutual interests such as cost, time, privacy, children's welfare, protection from unilateral actions, safety, being heard and understood;

2. Mutually identifying issues, and all areas of agreement by
1. Assisting their own client to communicate their goals, needs, and interests by reframing them in positive constructive non-positional manner.
2. Ensuring the opposing party knows they are heard and understood by active listening;
3. Recording or stressing all areas of agreement;
4. Not seeking to resolve areas of disagreement, but just noting them as issues to be addressed and normalizing the existence of such issues;
5. Identifying any pressing issues needing immediate attention;

3. Attending to Pressing Issues by
1. Resolving only what has to be resolved on a temporary non precedent setting basis subject to retroactive revision to meet immediate needs and leaving the broadest possibilities open for both parties for global settlement;
2. Using an abbreviated version of the interest based negotiation process to reach resolution by
(1) Identifying the issues as narrowly as can be;
(2) Obtaining all readily available data;
(3) Identifying the underlying interests;
(4) Generating the most options in the time available;
(5) Choosing the best option;

4. Gathering and exchanging all additional information and identifying further data or documents needed for future meetings and committing to obtaining them and, where not readily settled, avoiding disputes over which party's version of the facts is correct, rather honouring each party's perspective, or belief (and later using both versions of fact to generate a wider range of possible outcomes).

5. At the First or Further Four Way meetings as required

1. Identifying the needs and interests underlying the issues for both parties and ensuring these are communicated and understood by both parties by
1. both lawyers helping both parties to understand, communicate, and clarify their real needs, motivations, goals, and intentions and ensuring the party opposite knows they are seeking to understand the party with a view to finding an acceptable way to satisfy their interests;
2. Identifying which of the interests are shared by both parties or are compatible with those of the other party;

2. Generating as wide a range of options as possible that will respond to each party's interests and goals and maximize the value to be divided by
1. Analyzing the data together to identify
(1) the maximum value for exchange; and
(2) the widest range of options;
2. Refraining from prejudging possible options prematurely;
3. Reviewing the Law
(1) as one source of an objective, reasonable range of outcomes;
(2) candidly and openly as to the range of outcomes on the facts as each party in their turn perceives them. (The goal is to identify a range of options, not to estimate which facts will most likely succeed in court);
(3) and noting it has limited scope and flexibility and only represents some of many possible outcomes and may not always be the best one for the parties;
4. Identifying limiting factors beyond the control of the parties;
5. Reviewing the parties' own creative options;

3. Selecting the outcome which best meets the needs of both parties and is acceptable to each by
1. Avoiding simple compromise unless limited time or resources necessitate it;
2. Evaluating possible solutions to best meet the identified need and evaluating how to best divide the benefits using criteria meaningful to the parties;
3. Assisting their client to develop a comprehensive settlement model accounting for how best to get what the client wants and accommodates the other parties interests so as likely to be acceptable to them.

6. Communicate with the opposing lawyer prior to and after each four way meeting to evaluate the previous session and plan how to optimize further sessions.

7. If an agreement is reached, Collaborative lawyers may assist the parties to draw up and sign settlement agreements and to implement those settlement agreements in court proceedings on a consent basis only.

SANCTIONS

Lethbridge Collaborative Family Lawyers have collectively committed to assisting their clients in reaching acceptable agreements, where appropriate, through the collaborative law process. As evidence of this commitment, Lethbridge Collaborative Family Lawyers have agreed to authorize a subcommittee of their membership to act as a Sanctions Panel, with authorities as outlined below. Any breach by a member of the Collaborative Law Agreement or the Protocols of Lethbridge Collaborative Family Lawyers shall be referred to the Sanctions Panel for determination. The member shall be entitled to notice and hearing prior to any decision of the Sanctions Panel.

The Sanctions Panel shall have absolute discretion in sanctioning members for violations of either the Collaborative Law Agreement or the Protocols of Lethbridge Collaborative Family Lawyers, subject to the following guidelines:

1. Any member who commences a Court application either, directly or indirectly, on behalf of his or her client after the execution of a Collaborative Law Agreement shall, in addition to any other sanctions imposed by the Sanctions Panel, be suspended from membership in Lethbridge Collaborative Family Lawyers for:

a) a period of no less than six months for a first violation, subject to the discretion of the Sanctions panel:
b) a period of no less than one year for a second violation, subject to the discretion of the sanctions panel;
c) an indefinite period for any offense thereafter, subject to the discretion of the Sanctions Panel.

2. Lethbridge Collaborative Family Lawyers shall not enter into Collaborative Family Law Agreements with suspended members, nor shall any member provide referrals to a suspended member, the violation of which will attract sanctions in the discretion of the Sanctions Panel.

3. Any other breach of the Collaborative Law Agreement or the Protocols of Lethbridge Collaborative Family Lawyers, which could, but without limiting the generality, include withholding financial disclosure, providing false or misleading information, or failing to bargaining in good faith.

4. In imposing sanctions, the Sanctions Panel may consider the following suggested penalties, yet such shall not limit the absolute discretion of the Panel in imposing sanctions:

a) suspension;
b) no referrals from members;
c) exclusion from membership advertising;
d) increased dues;
e) monetary penalties.