Posted on July 16th 2018 in Family Law

Collaborative Law calls for one-on-one contact

Certain circumstances may call for the use of online dispute resolution (ODR) tools, but in her collaborative family law practice, Toronto family lawyer Nicola Savin says there’s no substitute for face-to-face contact.

ODR processes, Law Times reports, were discussed in a recent Civil Justice Council study in Britain where a system called HM Online Court would engage facilitators who aren’t lawyers working online to settle low-value claims through automated negotiations. The system would see online judges make a decision if parties can’t reach a settlement, says the legal publication.

British Columbia, the first province to institute electronic filing in 2005, has become an ODR trend-setter, says the article, noting the province plans to launch an online system dubbed the B.C. Civil Resolution Tribunal later this year.

In Ontario, the Ministry of the Attorney General is examining ODR’s use for a number of programs, reports Law Times.

And while Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP, says some scenarios may require online communication, she says she prefers to deal with clients one-on-one.

“People want a personal connection when they’re dealing with emotionally charged conflicts,” says Savin, who uses negotiation techniques and mediation to assist her clients in meeting their goals.

“Certainly I email clients and have conversations on the phone, but for actual negotiations I think there’s no substitute for personal contact. You can tell more about what a person is feeling by looking at them. You can calm them sometimes by even reaching out to them and touching them on the shoulder, or taking them into another room apart from the other side and having a one-on-one conversation with them.”

Straightforward issues like annual child support reviews may make sense to work through online, but many family law matters are highly-charged, emotional and complicated, Savin tells AdvocateDaily.com.

“When you’re talking about issues like spousal support, a custody or access plan, inherited property, infidelity and trust issues, personal conflict issues then come into play and they do affect negotiations – sometimes in a significant way if there’s anger and resentment and distrust,” she says. “It’s very hard to work through those issues, and you do have to work through them. If you do want to resolve things fairly quickly, it is best to do that face-to-face if an apology needs to be made or concessions granted or work well done acknowledged. In order to get over certain hurdles people need to see each other.”

In high-conflict cases where parties prefer not to be in the same room, Savin says ODR tools may be put to use. Communicating online may also be a more efficient option if parties live in different jurisdictions, she adds.

“I always check for their preference, but I do tell them it will take longer if you’re not in the same room,” she says. “I find often there isn’t transparency if people aren’t in the same room, and everybody is not hearing the same thing, so you’ll hear, ‘That’s not what I said,’ or ‘I didn’t understand that.’ I think the person who’s not in the room would feel they are missing something and when you’re paying that much money for a meeting, you want to get it all,” says Savin.

“If you’re all hearing the same thing, chances are you’ll have a more enduring outcome because the negotiations are transparent. Otherwise, there’s always stuff that’s lost in translation.”

Originally published in Advocate Daily.

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