By Beverley Martel 
The Collaborative Process is based on full disclosure and mutual respect. Parties and their lawyers sign a Participation Agreement acknowledging that written and oral communication between the parties will be respectful and constructive. At the first meeting the lawyers will discuss “rules of conduct” such as politeness, no interrupting, no name calling and others.
A collaborative four way meeting, attended by the parties and their lawyers, is seen as a “safe” place to negotiate a Separation Agreement. But what about the angry souse? Is there a place for anger at the collaborative table? How do parties negotiate in a civil manner when one or both of the parties is openly hostile?
Many couples who are “separated” continue to live under the same roof, usually for financial reasons. Until the issues of support and division of property are resolved it may be impossible for one or both to purchase (or rent) separate accommodation. The laws of Canada recognize that a married couple may be living under the same roof and still meet the criteria of living separate and apart that allows them to seek relief under the Divorce Act or applicable provincial legislation (in Ontario, the Family Law Act).
Obviously, where there has been a breach of trust, especially in cases of infidelity, living under the same roof is stressful. Tempers flare, in the home and at the collaborative table.
Counsel can help the parties handle their emotions and can “model” civil, respectful communication. Coaches can be employed to assist either or both parties to deal with hostility. A third party neutral or facilitator can help everyone move past the anger that may be impeding communication and thwarting potential settlement.
Regardless of their social or financial status people in the midst of a relationship are emotional, sometimes overtly hostile toward one another. Mel Gibson made headlines when his telephone calls to his estranged girlfriend were made public. Going to court does little to calm the waters. In fact, the pleadings served on the other party and filed with the court may inflame an already volatile “relationship.” Angry litigants sit on opposite sides of the courtroom with their respective lawyers between them. There is little if no opportunity for facilitated conversation between these litigants. And if they cannot communicate directly there is little hope of dispersing the anger and moving towards resolution.
The lawyers in a collaborative file will strive to overcome the anger, not feed it, and may call on other professionals, such as social workers, to assist. This “Team Approach” is one of the benefits of the collaborative process. Obviously if there are real threats to the emotional or physical safety of one of the parties the collaborative model is not appropriate. If evidence of violence or threats of violence emerge during the process it may be necessary to terminate. However, where the hurt and resentment of one or both parties boils over into anger, the process and the players (including lawyers, mediators, coaches or mental health professionals) has much to offer.
Beverley A. Martel, B.A., LL.B., LL.M.(in ADR)
Barrister & Solicitor, Mediator, Collaborative Practitioner
Past President, current Director Peel Law Association
Director Ontario Deputy Judges Association
Weir Nakon
1290 Central Parkway West, Suite 710,
Mississauga, ON L5C 4R3
Phone (905)279-7930 (223) Email: bmartel@weirnakon.com