The vast majority of divorce cases in Ontario are settled outside of court and collaborative law is attracting considerable attention as a proactive and humane divorce settlement option. Proponents of collaborative law tout that collaborative law is faster, cheaper and nicer than traditional divorce. This helps everyone in the process…especially the children. It can also lower the expenses incurred by divorcing couples, protecting families from unnecessary resource depletion at a time when money is tighter than before.
Collaborative Divorce is different from mediation or arbitration. It takes place completely out of the shadow of the court. Collaborative law is a client-centered, interest-based negotiation model for resolving disputes. While the details vary from collaborative lawyer to collaborative lawyer, the central idea is that the parties retain lawyers who agree in advance not to take the case to court and who agree to full disclosure of information. You and your lawyers must agree not to go to litigation and, in the end, if your case cannot be settled and you decide to litigate, you both have to hire new lawyers.
If you are a couple who wants to resolve your divorce amicably, this may be an ideal process for you. This process allows you all the benefits of legal counsel without the threat of court. Going with the collaborative process may also reduce some of the stress and tension in your personal life, as you are going through the process of divorce and trying to establish the groundwork for a new beginning.
Collaborative divorce lawyers help you make informed decisions about financial and emotional issues, and sometimes involve financial experts or mental health professionals to help the process along. Collaborative lawyers make sure documents are drafted properly and thoroughly. Collaborative lawyers make sure you understand the law, your rights, your obligations, and the legal effect of your decisions. They also help make the process of separating your assets more peaceful, as they focus on positive communication methods and making requests versus demands from the other party. This approach is much less strenuous on everyone and helps build a constructive rapport between the two sides. It helps set you up for a future relationship with your ex-spouse to co-parent.
In order for a lawyer to practice collaborative law, he or she must have undergone specific collaborative training. The training focuses on negotiation and communication skills. An open environment is critical to a peaceful resolution of issues. Similar to arbitration, collaborative law requires all parties to sign a contract. This is called a disqualification agreement or participation agreement, and is signed before any negotiations begin. A critical piece of this agreement is to disqualify the lawyers from going to court in this case.
The participation agreement must be signed voluntarily by the parties and professionals. It is an important document as it lays out the principles of the collaborative process.
The agreement stipulates that third parties may be brought into the process, such as accountants, therapists, or appraisers. These specialists are retained jointly and directed to work in a cooperative effort to resolve the issues. These specialists generally also have specified training in collaborative practice.
Parents agree to insulate children from the disputes. The goal is to resolve any parenting issues as amicably as possible and in the best interest of the children. The agreement also outlines these goals regarding children.
Since collaborative divorce is a consensual process, there is no guarantee that it will be successful in resolving every case. Although this process can promote healing and growth, it will not necessarily resolve certain feelings and concerns that led to the current conflict.
Even though lawyers are stepping out of their traditional role to some degree, they must still represent their clients diligently and exclusively. Lawyers must also ensure their client gives truthful and adequate information and generally must withdraw if information is withheld. Honesty is critical to the process. If either party decides that the collaborative process is no longer appropriate, then the process may be terminated by written notice to the lawyers.
The collaborative process does not preclude the use of other methods of dispute resolution. For example, a mediator may be consulted to help with the collaborative process if you should find yourselves at an impasse.
Though the process of collaborative divorce often help divorcing couples put their lives back in order, it is not appropriate for all situations. Couples entering into a collaborative process should feel confident that both parties will be honest and forthcoming throughout the negotiation process. Collaborative lawyers will assess your case and decide whether it is an appropriate process for you.