Collaborative Family Law (CFL) is an exciting development in Family Law that has spread to Ontario via the United States and the Western province. Both clients select collaboratively trained lawyers who blend the communication skills of mediators with the problem-solving skills of lawyers.
WHAT IS COLLABORATIVE FAMILY LAW?
Collaborative Family Law is a legal form of dispute settlement, or rather an alternate form of dispute resolution that involves separating parties. The main aim of collaborative family law is to solve disputes fairly outside the court. This is based on the premise that couples agree to collaborate and solve their issues amicably.
CFL represents a paradigm shift from the traditional role of a lawyer. Fundamentally, a collaborative lawyer uses his or her skills to model and teach clients how to be more effective negotiators. Collaborative lawyers act as legal advisors and process facilitators, rather than decision-makers.
WHAT IS A COLLABORATIVE DIVORCE?
Collaborative divorce or collaborative separation refers to the use of an out-of-court process that addresses the emotional, financial and legal issues that arise as your family transitions from one household to two. It is a voluntary process that focuses on making sure all the information you require to make decisions is available, and that your negotiations remain constructive and capture your interests. Respectful communication and full transparency are of primary importance. You and your spouse will each have your own collaboratively-trained lawyer for guidance and support, and a neutral family professional and/or financial professional may also be part of your team. The whole team focuses on your goals and concerns while helping you achieve the best possible outcome for you and your children.
The collaborative process is not just for separating couples. It is an excellent way to work through the details of a marriage contract or cohabitation agreement. Discussions are focused on you and your future spouse’s interests and concerns and the process ensures negotiations will not become adversarial.
PRE-REQUISITES FOR A COLLABORATIVE FAMILY LAW LAWYER
Collaborative family lawyers must have special training in:
- using a cooperative way to get partners to agree
- focusing on solutions that consider both partners’ interests and needs, while taking into account legal rights
- supporting partners to speak openly and honestly with each other
- making sure that partners have all the financial documents and information they need to make informed decisions.
- Collaborative family lawyers also agree in writing not to go to court. As a result, they are committed to helping you reach a settlement.
COLLABORATIVE FAMILY LAW PROFESSIONALS
Your collaborative family law lawyer works with you to set up a process for negotiation that makes sense for your family. You may discuss things in person or over the telephone, and exchange documents and information in person, or by email or fax.
Usually, the lawyers exchange documents, or have initial phone discussions before all of you meet – you, your partner, and your lawyers. You may have several meetings together.
Your lawyer may also discuss your draft separation agreement with you. This way you have time to think about the agreement and talk with your lawyer privately about it. There may be several draft agreements before you and your partner make an agreement.
If parties eventually do not reach an agreement using CFL and opt for litigation, the lawyers must withdraw. This is based on the premise that parties must opt for CFL only if they are resolution-oriented; if litigation is an option, the lawyer would not be determined to resolve the matter through effective negotiation and the process may be compromised. Therefore, if CFL fails, collaborative lawyers must withdraw, parties must then proceed to be represented by other lawyers
Your collaborative family lawyer may refer you to other professionals who may help resolve your issues. For example, a financial planner may help you understand what taxes you will pay if certain types of property are transferred to you from your spouse.
And a child specialist, such as a social worker, may help you reach a parenting time schedule that meets your child’s wishes, their extracurricular activities, and you and your partner’s schedules. Parenting time used to be called access.
You and your partner have to pay for this.
If you need to resolve property or support issues, it is very important that you share complete and honest information about your income, assets, and debts. This is called financial disclosure.
You can share this information in many ways. For example, you could use a computer spreadsheet that lists your financial information.
You can also fill out one of the financial statement court forms. Many people use these forms even if they don’t go to court. The forms can be useful because they show you what a court looks at when deciding support and property issues. They also help you see what type of information you and your partner need to give each other.
Your collaborative family law lawyer, your partner’s collaborative family law lawyer, and sometimes a financial specialist can help you figure out what information needs to be shared to reach an agreement.
IS A COLLABORATIVE DIVORCE RIGHT FOR YOU?
For Collaborative Divorce to be successful, parties must:
- Be honest
This is a mandatory requirement. Both parties have to agree to be honest and disclose all relevant information.
- Agree to solve their case out of court
If either partner declines to resolve the matter out of court then collaborative law cannot be used.
- Control the process
The presence of the lawyers does not determine the case direction. The lawyers are there to only provide guidance and offer legal advice, but the outcome is highly dependant on the parties themselves.
HOW DO YOU KNOW IF CFL IS SUITED FOR YOU?
- When there is no real fear of domestic violence or power control
- Both parties must agree to participate
- Willingness to listen and be outcome-oriented
- You can speak for yourself
- Listen to views and concerns from your spouse
- Willing to negotiate in good faith
- You are able to negotiate a mutually acceptable settlement and do not want to leave the decision regarding your children and property to a judge
WHAT IS THE BENEFIT OF COLLABORATIVE DIVORCE?
It promotes effective communication between you and your spouse both during and after your divorce by allowing you to o retain decision-making control over your family and your divorce.
THE STRUCTURE OF NEGOTIATIONS IN CFL
The central hypothesis of CFL is that by removing the potential to litigate a case, the nature of negotiations shifts toward settlement. Without the potential of litigation in the background, lawyers will take different steps and adopt different strategies for negotiation. For example, there will be less paperwork and no need to prepare affidavits and other statements—which, because of their impersonal formality, are often seen as offensive by one or the other side.
THE STEPS IN COLLABORATIVE FAMILY LAW
- Build the foundation- The parties and lawyers are introduced, and they overview the process by identifying goals, needs, interests, and concerns.
- Identify issues- Determine issues to be resolved.
- Gather information- Identify what financial and other information is needed.
- Explore options for resolution of issues- Develop a realistic range of possible solutions.
- Evaluate consequences of each option- Consider immediate and long-term implications on parties and the children and how well does the option meet the parties’ interests and goals.
- Arrive at an agreement- Generate a settlement proposal that considers and reflects the parties’ goals, needs, interests, and concerns.
COMPARISONS BETWEEN CFL AND TRADITIONAL LITIGATION OUTCOMES
The substance of the outcome in CFL is no different or very little different than what they might have expected in a traditional litigation-negotiation process. The apparent discourse between core CFL outcomes and the outcomes that might be expected from traditional litigation is important since some people have raised legitimate concerns about weaker parties coming out of collaborative negotiations with less than their entitlement. Therefore, CFL is only advisable in cases where there is no risk of power imbalances between parties.