By Deanne Sowter*
The Osgoode Mediation Clinic and Collaborative Practice Toronto (“CPT”) have partnered to launch a pro bono pilot project (the “Project”) that seeks to bring the collaborative process to low and modest income families. The Project is loosely based on a successful pro bono model that is available in Vancouver, but it has been modified to incorporate law students into the process. Separating families will work with both law students and a full team of experienced family law professionals to negotiate a settlement or partial settlement. The collaborative team assigned to every file will include two lawyers, a neutral family professional, and a neutral financial professional. There is no cost to the family, and the professionals will not receive any compensation.
The Project is designed to provide the collaborative process to families who may not qualify for legal aid but cannot afford lawyers. As this is a pilot project, there are strict thresholds before a family will qualify for participation, including:
- Combined gross family income of less than $60k / year;
- Combined family net worth is less than $100k;
- Neither participant may be self-employed or own a business;
- Neither participant may have a private defined benefit pension;
- The participants must not be currently involved in a family court proceeding; and,
- There must be no restraining order or no contact order in place.
In addition, the participants must be able to meet in the same room together. The collaborative process relies heavily on meetings with all four professionals and both parties to try to come to an agreement together that meets both party’s interests.
Participants may not qualify for the project if the issues are too complicated or if it is a high conflict file. There are several mechanisms built into the protocols to catch files that involve domestic violence or power imbalances, in order to streamline them out of the Project and into a process that is more flexible and appropriate to accommodate the unique challenges created by domestic violence. The project does not rely on students to do the screening.
The process begins with the students. The Toronto collaborative model has been modified to a process that fits into 7-hours. Potential participants may contact the Osgoode Mediation Clinic to see if they qualify. A law student will answer initial questions on the phone, and then meet with each spouse separately to help them prepare their financial disclosure, and complete the rest of the intake materials including questions about how they handle conflict in their family, and questions related to parenting. Once the student has met separately with both spouses and compiled all of the intake information they will send it to the Project Administrator who will assign a collaborative team to the family.
There will be 2-3 meetings over a maximum of 7 hours. The clients may not contact the professionals in between meetings, and the professionals will not be required to do any work outside of the 7-hour commitment. If any unexpected issues arise throughout the file the team and/or parties can contact the Project Administrator to problem solve, or terminate the process, if necessary.
The Project does not promise to deliver every family a fully negotiated separation agreement at the end of the 7-hour period. Depending on the issues involved and the family dynamics, the final result may be a parenting plan, an interim agreement, a partial agreement, or a memorandum of understanding (“MOU”). One of the goals of the Project is to see if the 7-hour process is effective, and to measure the range outcomes that can be reached within the confined protocols and qualifications. The Project is also a stepping stone to potentially introduce a low-bono model.
Finally, the Project is also designed to offer mentoring to both law students and inexperienced collaborative professionals who are CPT members. Each file will have either an Osgoode Mediation student and / or a CPT member assigned to it, who will sit in on the meetings, draft the progress notes, and draft a first pass of the separation agreement or MOU. The best way to learn the art of settlement advocacy and neutral facilitation is through hands on experience, and the Project is trying to help fill that gap in available training.
If you are interested in volunteering as a professional, you must be collaboratively trained and be a member of CPT. Please contact Daniella Wald for more information: Daniella@waldfamilylaw.com
If you are an Osgoode student and would like more information, please contact Professor Martha Simmons: MSimmons@osgoode.yorku.ca
For more information about the Project or to contact the Osgoode Mediation clinic, please see: www.cpfamilylawproject.com
*Deanne M. Sowter, BFA (York), MFA (American Film Institute), JD (Osgoode Hall Law School), is the 2015/16 OBA Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Studies, and a Research Fellow at the Winkler Institute for Dispute Resolution. Ms. Sowter practices Family Law, specializing in negotiated settlements. Ms. Sowter summered and articled at a full service Bay Street firm, and prior to becoming a lawyer Ms. Sowter worked in the film industry for 13 years. Ms. Sowter’s research interests lie in the areas of family law, professional ethics, and alternative dispute resolution.