The collaborative process is geared to achieve a mutually fair and equitable end to a relationship breakdown, but while avoiding the acrimony, anxiety and financial cost that typically accompanies litigation-based approaches, especially Family Court. This is not about winners and losers. In fact, it is designed to avoid that outcome altogether. In reality, there are no winners and losers after a costly, protracted Family Court battle. Therefore, why endure it, if there may be a better alternative?
Our goal as specialized, collaboratively-trained lawyers – help our clients get through a separation process with respect, while also helping them negotiate and achieve terms of resolution that meet their interests, needs and objectives and, quite possibly, that leave everyone as whole as possible.
WHAT IS IT? IS IT RIGHT FOR ME?
Effective alternative to Family Court
The collaborative process is not Family Court, where many end up to resolve their disputes for their divorce or relationship breakdown. In fact, in the collaborative process, there is no Family Court at all. Rather, collaborative practice is very different - it is an out-of-Court process designed to facilitate and achieve a resolution for those who experience relationship breakdowns. Unlike Family Court typically and traditional separation and divorce battles with lawyers involved, the collaborative process truly focusses on fair and fulsome disclosure, mutual recognition and open, facilitated communication – the process and approach is specifically designed to be client-focused and family-centred, particularly when children are involved.
Many who have completed the collaborative process or who work within it professionally attest that it is ideal for those seeking an alternative to traditional, Family Court-or-litigation-based approaches to relationship breakdown. The process is especially attractive when children are involved, particularly if the parents or guardians wish to minimize conflict for the children and try to preserve and maintain the best possible family relationships for the future.
Make Your Own Decisions
The process also works very well for those who want some ability to influence and make the decisions affecting his or her life, when a relationship breaks down. The Family Court makes decisions for you; in the collaborative process, you maintain control and decision-making ability, with the guidance of the collaborative professionals around you to help you make those decisions and plan for your future. If you place a value on taking personal responsibility for managing your life, and possibly the lives of your children, and for resolving conflicts with integrity, respect and self-fulfillment, the collaborative process may be ideal for you, too.
Personal. Private. Less Intrusive.
The collaborative process, unlike public Family Court, is a much more personal, private and less intrusive and contentious process. Everyone involved agrees to work together, with the assistance of special professionals as may be necessary, to derive a mutually agreed upon settlement out of Court. Goals and objectives are consistently set and achieved by working together with your respective lawyers and any other collaborative professionals that may be brought on board for their expertise and assistance, as may be necessary.
The collaborative process is also ideal for parents and for those whose objective is to preserve and maintain financial wealth, rather than deplete it through costly Court proceedings, especially for those who seek privacy for their personal affairs. Most observers agree, this process is a turning point in how relationship breakdowns are resolved in Ontario – essentially, it offers new hope for the traditional cycle of conflict and financial waste in separation and divorce.
The Basic Process and the Players
Each person hires a lawyer specifically trained and certified as a Collaborative Family Lawyer.
Your collaboratively-trained lawyer provides you legal guidance and advice throughout the entire collaborative process, including to ensure that you are fully informed and confident in the decisions you make to achieve a resolution of the issues.
The lawyers involved do not grandstand, they do not act like they may act in Court, they do not threaten anyone or otherwise engage in the type of conduct you might expect to see in a contentious Court case. Typically, there are no demanding or threatening statements or letters between the lawyers, no written or verbal statements of hurtful or accusatory allegations and, for certain, no potentially anxiety-filled, stressful appearances before a Judge in Court. Even better, because there is no Family Court involved in this process, all of your personal information remains private, which may be important to you.
There may be a decision made, in some cases, to bring on board and work with other collaborative specialists, such as collaboratively-trained, neutral family and financial professionals. It depends on the circumstances and what needs to be resolved in your particular case. Bringing in another non-lawyer professional may not increase the cost of the process – the objective of the process is to allocate the expertise and work involved between those who are most experienced to do the work, but in a co-ordinated, managed way. Once these specially-trained professionals are engaged, they help parties work collaboratively and together towards a co-operative, non-adversarial, common resolution.
Sometimes collaboratively-trained financial professionals are involved to assist with the process. They generally provide unbiased, independent information, analysis and assistance, which may be necessary for you to make decisions about sometimes complex issues that need to be addressed with respect to financial matters arising from your relationship breakdown. Often these professionals are financial planners, accountants, certified business valuators or pension experts.
There may also be a need for family professionals in your collaborative process. Generally, they offer important parenting guidance and assistance to ensure that your children's needs are considered and addressed during the process and for the future. Often these professionals are parenting mediators, therapists or coaches.
The Participation Agreement
When there is an agreement to participate in the collaborative process, typically the next step is to enter a Participation Agreement – this is a contract between the parties to commit and follow-through with the collaborative process in good faith and with a common objective; namely, to resolve the disputes by utilizing this collaborative method.
Essentially, each party promises to the other to co-operatively disclose any financial and other material information that may be necessary to address the issues, to mutually communicate in a respectful manner and, generally, to act in good faith as the issues are addressed and move towards a full and final resolution.
Arrange and Attend Team Meetings
The collaborative process works best through face-to-face meetings with everyone at the table. Typically, these meetings are held at the lawyers' offices, or another agreed-upon location, but can also be held virtually. These are managed, structured discussions – the lawyers generally develop an agenda and plan for the meeting in advance, which they make sure is followed at the meeting to ensure the most is accomplished and gained at each meeting. These meetings are designed to be progressive, constructive and forward-looking, similar to the collaborative process generally. They adopt the team-based methodology for collaborative process and, sometimes or as may be necessary, other collaborative professionals on the team may attend, such as an accountant, financial advisor, or parenting specialist. With the collaborative professionals at the table, each party is encouraged to work through the issues with the other with a common goal of reaching a fulsome legal, financial and parenting-related agreement, depending on the issues.
Having Settlement Discussions
Collaboratively-speaking, having interest-based problem solving discussions is an important objective. Everyone at the table participates. You make your own decisions, with guidance and advice from not only your own lawyer, but possibly the other collaborative professionals involved. Your collaborative professionals assist you to identify the decisions to be made, help you prioritize and communicate your most important goals and ensure that the discussions are focused, appropriate and managed properly, to maximize the chance of creating and achieving often creative and customized solutions, directly addressing your particular needs, interests and circumstances. By using this different approach, conflict becomes much more effectively managed and, frequently, minimized, so you can think and make decisions clearly and in a conflict-minimized way to achieve your interest-based outcome with confidence, integrity and respect.
Reaching a Resolution
When the issues are tentatively resolved in a way that you feel entirely confident and comfortable with, usually a written agreement is prepared to reflect those choices and outcomes. Generally the lawyers involved assist with this final agreement, which is shared between everyone involved and properly reviewed and discussed before it is signed by anyone. Only when everyone is fully satisfied with the final agreement will it be signed. Sometimes there is a need for some more discussions, once everyone reads the final resolution in written form, but that process also takes place collaboratively and in this same framework. When a final, written agreement is entered, this becomes your separation agreement, which is binding as the final resolution of the issues.
Here are links to more information about collaborative family law practice, including our local Collaborative Practice Group in the City of Kawartha Lakes: