Collaborative Law or Litigation? Draw Your Own Conclusions

Collaborative Law – maybe you’ve heard the hype, maybe you haven’t. Maybe you’re wondering, “What hype? What is collaborative law?” But it is out there, ruminating in the back of people’s minds as an alternative to Court. It is an international concept and its principles can be easily understood.

The process taught to collaboratively trained lawyers and described to clients takes place in a forum of “interest based negotiations”. While parties committed to litigation, an adversarial process, are required to take a legal position based on what they want to achieve and then pursue the facts and evidence based on what is required to be proven, participants in the collaborative process are encouraged to identify the interests of both parties and look behind the legal positions on both sides. The goal is to brainstorm creative compromises that will satisfy as many of those interests as possible. The parties rely on their lawyers to guide them through this process in the same way as any other process. However, rather than your lawyer simply opposing your spouse’s lawyer over legal arguments you might not fully understand, you can expect to see lawyers working together to acknowledge what they know to be the law and to help the parties navigate the grey areas to a reasonable compromise on both sides.

If this all sounds great, you might be wondering what the problem is. There are several, which lie in the realm of public perception. While people often buy into the spirit of collaboration,  two common objections are time and energy, and cost:

Time and Energy: One reason people are hesitant to commit to the collaborative process is time. They think it is a more time consuming process, given the need for a series of meetings and something like homework in between. It sounds like a lot of work. There is a prevalent attitude that it is better to “just go to Court and get it done”. If there is frustration resulting from stalled negotiations, there is a corresponding perception that things would have been different had we just gone to court.

This perception fails to recognize that most court applications require a huge investment of time and emotional energy. Just crafting a sufficient affidavit requires lawyers to gather any and all information that may be relevant to any number of issues. Clients have to relive every detail of a difficult situation and let a third party determine the relevance of those experiences to the legal position. What they most want heard is often deemed irrelevant. There is a high onus to prove allegations, which requires a diligent effort from litigants to provide facts. Furthermore, court applications achieve a result for an interim period that is only the beginning of the process. Although the process can be shorter or longer, typical litigation files take anywhere from 9 months to two years to resolve.

Cost: The reality is that costs are not set or determined in either process. However, one of the benefits of the collaborative process is that parties are encouraged to consider methods of jointly financing the venture with family assets. Depending on the willingness of the parties to engage in true collaboration, which involves gathering relevant information, acknowledging and applying the law to find a range of options, and working towards compromise, the entire process can cost the parties thousands of dollars each. There seems to be a perception that this is a steep price to pay with no guarantee of results, while going to Court guarantees a result, for better or for worse.

This perception fails to recognize the harsh reality that going to Court is unpredictable and the result obtained is rarely entirely satisfactory to either party and can be unsatisfactory to both. Put this way, the $5,000.00 (or greater) retainer to commence litigation simply to get a result seems steep in comparison. As mentioned, an initial court application is just the beginning of the process. It is also the beginning of the costs. Except in the most straightforward of cases with narrow issues, commencing litigation and the application itself are likely to cost much more than that$5,000.00. That retainer is often a down payment on the first step in the process. There may be several more steps required to reach resolution.

 Whatever you might have heard from others about their opinions on collaborative law, whether positive or negative, those opinions are formed by experiences perceived through a unique lens, created by their own sets of circumstances and understandings. They also account for nothing of the alternative, the litigation process. By way of comparison, perhaps one cannot do better than to consider “The Great Orange Dispute” provided on the Collaborative Lawyers’ Association website, as follows:

 Once upon a time two people were fighting over an orange. One person felt entitled to the orange because she planted the seed for the orange tree. The second person believed he was entitled to the orange because he had watered the tree from which the orange was picked. They each hired a lawyer to advance their position as to why they should have the orange.


The lawyers researched precedent case law and developed arguments to support their client’s claim to the orange. When presented with these arguments the judge found merit to each of the claims and ordered that the orange be cut in two equal pieces, so that both could enjoy some benefit from their labour.


Neither party was pleased with the outcome. The first person took their ½ piece home but did not have quite enough juice for her Tequila Sunrise. The second person took home their ½ piece and did not have enough rind for the marmalade he was going to make. How different the outcome could have been if, instead of focusing on their positions for ownership of the orange, discussions had been focused on the needs of the parties. Had that been the case, each person would have received maximum benefit of the orange (

There is no question that the realm of family law needs both systems. Resolving these disputes cannot be managed without them. Some parties are capable of collaborating in the interest of resolution while others require Court intervention. In making your own decision, it is important to take collaborative law seriously as an option. Listen carefully to what your lawyer says about collaborative law and read whatever information is provided. You should not govern your dispute resolution process merely on the basis of perception the experiences of others. Doing so may just lead you down the long and expensive road you are trying to avoid.