Your relationship is over. You have to move on. You’re hurt, you’re angry, or maybe just resigned to the fact and simply cannot wait to move on to the next phase of your life.
You’re wondering if you and your ex-partner can be amicable enough to settle all the issues yourselves. May you can, maybe you can’t or maybe there’s a few issues that will surely prove problematic.
You talk to your friends, family and even get independent legal advice from a lawyer. They tell you about various options for dispute resolution. They tell you your rights and obligations. You discuss the best interests of the children. You even talk about fees and limited scope retainers. You wonder if should just represent yourself.
In all of this, what are the chances that anyone told you anything about Collaborative Family Law?
If you’re one of the lucky few to have been offered that option, congratulations. I hope I can answer any lingering questions you have about the process. Most people however, would have never heard about this process.
So what is the Collaborative Family Law process? Simply put, it is a dignified, respectful approach to resolving your family law dispute.
To give you better context, lets quickly go over the various choices you have for resolving your family law dispute, in the order of how inexpensive they are.
Negotiation by the parties
This involves the parties talking things out, and drafting a Separation Agreement for themselves. The parties may get independent legal advice or not and they may draft their Agreement on their own or the parties may retain lawyers to draft the Agreement.
This is a great option if the parties are able to communicate amicably. If there is a power imbalance between them, one party may be at a huge disadvantage. Provided the parties are amicable, informed and each can hold his or her own, this is the most cost effective dispute resolution process. Provided of course, they get a lawyer to draft the final agreement for them.
The worst thing parties in this situation can do is draft the Agreement themselves. This is because clarity in the Agreement matters just as much as the actual terms of the Agreement and this is where most “kitchen table agreements” miss the mark. The cost of resolving disputes that arise from improperly drafted Agreements, is much more than the cost of the getting a lawyer to draft it from the onset.
The parties get the assistance of a 3rd party to assist them in the negotiation process. Mediation can be done with or without lawyers in attendance. The parties must be willing to cooperate all through the process otherwise, negotiations can breakdown and both parties can walk away from the process without reaching an agreement as there is little incentive to remain in the process beyond the recognition that it is a great alternative way to resolve your dispute.
Parties would generally enter into a memorandum of understanding and a lawyer needs to draft a separation agreement for the parties otherwise, the Agreement is not binding.
I’ll save this one for last.
This is usually a great option to start but can often escalate the process, if BOTH parties are not working with settlement focused lawyers. With settlement focused lawyers, agreements can be reached relatively quickly and can often be more cost effective than all the other options besides the option where the parties do the negotiations themselves.
If one of the lawyers is not settlement focused? This can turn into a very expensive process and the parties can even find themselves in protracted litigation.
The arbitrator is like a judge and makes the final decision for the parties. It is less expensive than court because there is less procedural formality. It is also faster than court and the parties have the option of selecting who their decision maker would be.
Arbitration is expensive as the parties have to not only pay their lawyers, but also have to pay their Arbitrators themselves. Regardless, it is often more cost-effective than taking a matter all the way to a Trial. It is also preferable to court, where privacy is important to the parties.
Do we need to say anything about this? People already know litigation is slow and expensive. You lose the opportunity to enter into a creative/customised settlement.
Courts serve a useful purpose when a party refuses to negotiate or negotiate reasonably. If a party is unduly delaying the process, the court process can ensure the matter moves forward eventually. Where a party wilfully and consistently breaches agreements, the enforcement tools of the court may be necessary.
With this process, both parties work with a lawyer all through. The parties interests, not their positions is paramount. The parties maintain the flexibility to reach an agreement that works for their particular situation and what they are individually interested in, not just what the letter of the law dictates.
For a process to be considered a collaborative family law process, both parties must be represented by counsel and the parties and their lawyers must sign a Participation Agreement. The bottom line of the Participation Agreement is that neither lawyer can represent the parties, if the matter escalates to court. What a great incentive!
Both lawyers are usually knowledgeable and know what their client’s cases’ strong and weak points are. By removing that constant posturing by the lawyers and the (empty) threats of litigation, the parties really focus on reaching a settlement that not only is fair under the law, but most important, serves the clients interest.
Collaborative process is truly client focused every step of the way and most collaborative cases settle and the parties are happier with the decisions and consequently, are more likely to follow through on the deals made.
In the collaborative process, the lawyers do not attack each other or the parties. The parties do not have to dread the process. A separation is hard enough without the added stress of overly aggressive lawyers. While the aggression may be satisfying to the client whose lawyer is behaving in that manner, they forget that such behaviour costs them tens of thousands of dollars in legal fees. It’s really not worth it. Remember: you attract more bees with honey. Do you want results, or do you simply want a fight?
The Collaborative Team
Besides the lawyers for the parties, you can work with a team that includes financial specialists and family coaches.
Financial specialists can be involved to ensure full and frank disclosure is provided. The Financial Specialists are neutral and work with both parties. They’re specialists in what they do so bye bye worries about a party hiding money. They’re able to uncover such things. Best part, they usually cost less than the lawyers. They do not offer any legal advice because they are not lawyers, but they offer financial advice and are very helpful with creating budgets and coming up with strategies to ensure both parties can thrive financially, post divorce.
By using one professional, the parties save money by not having multiple professionals duplicating work.
Family coaches help deal with the emotional aspects of a separation and believe me when I say every case has an emotional side to it, whether or not the parties admit it. The family coach can work with the children to deal with their feelings surrounding the separation. They help craft a child-focused parenting plan. The family coaches help keep the parties focused on reaching a settlement that works best for them and their children if they have children. They understand the parties’ triggers and are able to ensure that both parties’ emotional well-being is protected throughout the process.
More often than not, we do not realize that most impediments to a settlement are purely emotional. Yes, legal justifications can be made, but when uncovered, you find that more often than not, the real reasons are emotional. If those needs are attended to, rather than ignored, parties are more open to reasonable negotiations and settlements are reached way faster.
The family coaches have the specialized skills to deal with the mental and emotional, and generally cost less than lawyers.
As you can see, by working with a team, the parties are able to get the best possible specialized service, making the collaborative process more cost-effective. Taking out the aggressiveness and fighting between the lawyers significantly reduces legal fees. The parties are able to negotiate for what they want, and are not confined by their rights and responsibilities under the law.
Settlements are reached faster and the parties and their lawyers focus solely on what the clients want. Even when it looks like the parties are at an impasse, you would be surprised to discover what creative solutions can be crafted when people are committed to resolving their issues collaboratively.