I had a couple of people ask me recently if I knew any collaborative family lawyers. They insisted on one. I for one have mixed feelings about the process. It got me thinking. If it is as effective as its proponents say, why don’t they crank up the approach even more. Maybe they can get the legislators to import the no argument disputes into all litigation. Call it collaborative litigation. No finger pointing, no inflammatory comments, just collaborate with a smile to resolve the dispute.
It would start with the pleadings:
In a motor vehicle case for example, the statement of claim might read,
” GREETINGS Mr Defendant.
1. The defendant lives in Ottawa Ontario. Lots of good folks live there. It hosts the world’s largest annual tulip festival.
2. On January 13, 2016, the defendant drove his car through an intersection striking the plaintiff’s car. The defendant is a hard working and upright citizen. He just did not notice the red light as he was overjoyed after sipping a whole bottle of Chardonnay. He is a generous person actually as he shared the rest of the case with friends.
3. After all this was an accident and we all know accidents can happen. We can extrapolate the biblical golden rule here, namely that if our vehicle is struck, then we turn the other fender.
4. The plaintiff indeed was injured but doesn’t time heal all? He probably would be getting these same excruciating backaches later on about 4 decades from now in any event.
5. The plaintiff asks that the good defendant consider paying some compensation as a result of this unfortunate incident. Any reasonable offer will be deemed reasonable.”
There would also be a collaborative examination for discovery or deposition.
“Question to Defendant: what is your name sir, if you please? You need not answer of course if this question upsets you. Do you need a break?”
And of course in the unlikely event that this collaborative approach fails and the matter goes to trial, the system would also entertain a collaborative trial.
There would be an opening statement from the judge
“I am sitting as your collaborative trial judge today. Unfortunately the case did not settle yet and here we are at trial. Let the evidence begin. If there are any objections I shall not make any rulings as that would suggest one part is right and one is wrong.
As well you have chosen trial by jury. The jury has been instructed to listen carefully to the evidence and after the lawyers’ closing statements, the jury verdict will only say. ‘Interesting case. Both sides are right.’ ”
Like I said I have mixed feelings about collaborative. I think there is some wisdom in the words of Al Capone, who said, ” A smile goes a long way. A smile and a handgun go a lot further.”
Author- Poutine on the Orient Express: An Irreverent Look at Travel