Collaborative Law

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Collaborative divorce is a process where you and your spouse work as part of a Collaborative Practice team to help you get through the legal and emotional transitions of separation and divorce without going to court. You and your spouse decide together, efficiently and respectfully, what will be best for both of you and for your children. The process begins with each of you retaining your own Registered Collaborative Lawyer to advise and assist you with negotiating an agreement on all issues. The Collaborative Law Participation Agreement provides for confidentiality, privacy and full disclosure of all relevant information needed to resolve the issues in dispute. Negotiations take place in “four-way” settlement meetings that both clients and both lawyers attend. In order to ensure a safe and effective environment for negotiation, the lawyers and participants cannot go to court or threaten to go to court. If either party goes to court, both collaborative lawyers are disqualified from further participation. This allows the parties to speak more freely and to openly explore creative options in a manner that is unlikely with the threat of court in the background. The lawyers advocate for their clients, guide them towards reasonable resolutions and provide legal advice throughout the process but you and your spouse are the decision makers.

What is Collaborative Practice?

Collaborative Practice is a way for people to resolve their own disputes in an open and respectful manner, by reaching a mutually acceptable settlement. The process is commenced with the signing of the Collaborative Family Law Participation Agreement. The parties and their Registered Collaborative Lawyers agree that they will not go to court to ask a judge to resolve their dispute for them during the Collaborative Process. If they are unable to reach an agreement, and one of the parties decides to go to court, the Collaborative Professionals withdraw. Litigation lawyers are then retained to take the dispute to court.

How does Collaborative Practice differ from other methods of dispute resolution?

There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, lawyers work hard to advocate through the court process for their client’s position. Often, this includes court applications, contradictory affidavits, questioning, and settlement negotiations. Some matters may ultimately be decided by a judge through trial or other judicial dispute resolution methods. In some circumstances, litigation may be the only appropriate option. The litigation specialists in our firm are extremely skilled and can assist you if this is the best option for you. Litigation can cost more than other forms of dispute resolution, generally takes longer and the outcome can be less satisfactory. For many people a more co-operative approach is possible.

In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a "win-win" solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, the party’s lawyers serve only in a consulting or reviewing capacity. In other situations, the lawyers participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who are able to understand and analyze the information being presented.

Collaborative Practice combines the positive qualities of litigation and mediation. As in litigation, each party has an independent lawyer who will provide quality legal advice and will assist in putting forward the client’s interests. Drawing from mediation, the parties and their Collaborative Lawyers commit to both an open information gathering and sharing process and a resolution of their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as Child Specialists, Financial Specialists, Divorce Coaches or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for both of them.

What does a Collaborative Lawyer do?

To participate in the Collaborative Process, both parties must retain Registered Collaborative Family Lawyers. Collaborative lawyers have specific training to facilitate resolution for a broad range of family issues. They are required to take training in the collaborative process, in family mediation and in interest based negotiation to develop skills in negotiation and managing conflict. Collaborative lawyers can do everything a conventional family lawyer but will not represent you in court if court is required. They can negotiate cohabitation agreements or pre or postnuptial agreements, grandparent access, interim agreements to create a framework for parties while working on reconciliation, separation agreements, parenting agreements or divorce and property contracts to resolve parenting, child and spousal support and property issues. A Collaborative lawyer will work with you to reach an agreement tailored to the specific needs of you and your family without the underlying threat of contested litigation and the uncertain outcome of Court.

How is information gathered in Collaborative Practice?

The parties do not engage in legal procedures to obtain information. The parties and their Collaborative Lawyers agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or engaging in unnecessary delays are not permitted. If a party is not acting in good faith, it is the duty of his or her lawyer to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative Process can be terminated.

The parties decide what type of assistance is needed in the information gathering process and jointly engage experts, if needed, to assist them. For example, the parties can jointly hire a Financial Specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. They can also jointly engage an appraiser to provide them with information and education regarding the ranges of value of a particular asset.

How are questions relating to children addressed in Collaborative Practice?

One of the most important aspects of Collaborative Practice in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children's interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, the parents need assistance in making the transition from parenting in one household to parenting in two households. Collaborative Lawyers, Divorce Coaches and Child Specialists are skilled in assisting parents in developing effective communication and in creating a parenting agreement which will be beneficial for the children.

How do the parties and professionals work together?

After initial meetings with their own Collaborative lawyer, the process begins with a four way meeting with both clients and their lawyers. At this first meeting, the Collaborative Family Law Participation Agreement is reviewed and signed. You and your spouse will identify your goals and issues and then begin the process of making any necessary interim arrangements regarding children or finances, and to plan for information gathering. You may also choose to work individually with Coaches to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional collaborative professionals such as Financial Specialists, Child Specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing if needed. The lawyers and any other collaborative team members agree to work cooperatively to gather and share all information needed to reach an agreement. Further four-way meetings are scheduled as needed to exchange and clarify information and brainstorm possible options for resolution. The Collaborative Lawyers work with each other and with their clients to plan each meeting. The parties and Collaborative Lawyers focus on educating everyone regarding the underlying information, each party's interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be created.

Does it work to have everyone together in the same room in the middle of a conflict?

The job of the Collaborative Professionals is to "set the tone" for positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative Professionals help each client to present his or her interests and needs in a positive manner that can be heard by the other participants. Meeting together can help everyone to be "on the same page", which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.

Must an agreement be reached in Collaborative Practice?

Any solution must be voluntarily agreed to by all parties. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a "win-win" agreement, while recognizing that they may not receive everything on their "wish list". Parties may reach a full settlement on all of the issues, or may also choose to enter in a partial settlement that resolves some of the issues and therefore leaves less to fight about in litigation.

If the parties reach an agreement through Collaborative Practice, what happens next?

The Collaborative Lawyers will draft the necessary legal and court documents to formalize the agreement. If a divorce is required, the appropriate legal documents will be then submitted to the court for approval. A court hearing is not required. Neither the lawyers, nor the parties, appear in court.

What happens if a settlement cannot be reached?

If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, and other options, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative Lawyers withdraw and each party retains a new lawyer to assist them with the litigation process.

Why is it necessary for the Collaborative Lawyer to withdraw if an agreement is not reached?

Lawyers are typically trained to approach cases with the underlying assumption that a judge will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being "what will happen if we go to court." "Going to court" can often become a weapon or threat that derails communication rather than moving the parties to settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are "on the courthouse steps," after incurring substantial legal fees and depleting their emotional resources.

The agreement by both the parties and Collaborative Lawyers that the Collaborative Lawyers will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative Lawyers will not be representing the parties in court. The tendency to "drift" to court as the default decision-making method is reduced.

In addition, the parties are assured of the commitment level of the Collaborative Lawyers to the Collaborative Process by the requirement that the Lawyers withdraw if the Process is terminated. Similarly, each party is assured of the strength of the other party’s commitment to achieve a resolution that is acceptable to both of them, as they would otherwise need to find new counsel and establish a new working relationship if the Process is terminated.

Who should consider the Collaborative approach for their dispute?

Collaborative Practice works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. You may wish to consider Collaborative Practice if:

What do I do if I want to use Collaborative Practice for my dispute?

You will need to find a Collaborative Lawyer whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. Our firm has four Registered Collaborative Family Lawyers who can provide you with the information you need to decide if Collaborative Practice is right for you.

* adapted from materials by Catherine Conner and Margaret Anderson

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