The Collaborative Law Process – A New Alternative for Resolution in Family law

The title of this article is a bit misleading.

Collaborative law has actually been around for about two decades now, but the reality is most family law lawyers, and nearly all of the potential participants in family law proceedings, know little about the process. As well, few people know how Collaborative law differs from the regular ways people have been resolving family law disputes for decades.

First, most potential family law clients come to my office with a few issues they need addressed. It could be property division, child support, spousal support, divorce or some other question that they need and answer to. I am happy to provide advice and help them out, but what I always discuss at the beginning are the forums available to them, where we can discuss the issues at play.

There is the traditional Court room. We prepare Court documents and get the matter into Court as soon as possible. This option actually takes a bit of time to get together all of the appropriate documentation and evidence, before submitting everything to Court and “having your day”. Most of time, one Court appearance will not resolve all the issues in dispute in final form. Often, a few Court appearances and a pre-trial, and perhaps trial, are required to get everything ironed out.  This is very costly and takes a long time. For some people, where an agreement on a central issue or issues is not a possibility, Court may be the best option. But for many people, Court is not the appropriate route.

On the other side of the spectrum, some clients pop in and say that they have a great relationship with their ex-partner and are able to sit around the kitchen table to come up with an agreement. I only need to put the agreement on paper and it should be all over. Those clients are rare, but commendable.

Most clients are somewhere in the middle, between adversarial and completely agreeable. That is where Collaborative law may come in.

Some lawyers, like myself, have been trained in the Collaborative process to work with our client, the other party, and their lawyer in a team environment in hopes of establishing an agreeable resolution to their family law issues that sees everybody’s input and interests being considered. The framework typically has the four people meeting several times over the span of a few months. During those meetings the parties discuss what brought us all to the collaborative process, the interests each has in the process, issues that relate to those interests, what has to be discussed and disclosed to make sure that everyone is fully informed of the facts and emotions surrounding those issues and options for choices to resolve the issues. The whole process is very client-focused, with the lawyers often taking a back seat and simply steering the conversations in effort to have to parties resolve everything on their own terms.

Collaborative law also frequently uses the assistance of other professionals as coaches throughout the process. For example, we will encourage our clients to each have a personal separation coach – somebody they can speak to about the often emotional circumstances that people face in separation situations. Also, we will frequently bring in a financial advisor or accountant to work with both parties to facilitate the accurate disclosure and explanation of financial material relevant to the settlement.

You might ask how the Collaborative law process differs from the courtroom process or other resolution alternatives like negotiation and arbitration. Without going into great detail, I would make the following observations.

More than other options available, Collaborative law is client-focused. There is a good deal of time spent identifying the actual interests of the parties before rushing into labeling issues and solutions to those issues. This brainstorming allows for a more all-encompassing understanding of the parties positions.  This not only allows for a more holistic definition of the actual issues, but also creates empathy between the parties, as each has a better understating of the often benevolent motivations that lay behind each interest.

Collaborative law also has the whole group, all lawyers, coaches, and the parties working together as a team to find an amicable resolution. The standard arbitration or negotiation model is still very positional with each party coming in with their own game plan. That works at times, but both sides in a negotiation have the belief that they must give up their power and position before coming to an agreement. In the Collaborative model, there are no pre-determined issues or positions. Both parties establish their interests and then work to satisfy them to the greatest extent possible.

Collaborative law is not as formal as Court. Court rules require a substantial amount of financial disclosure, have rigid rules regarding opinion, speculation and hearsay, and result in decisions that are not often tailored to the parties’ unique circumstances.  These rules and results are necessary in Court because the judge only gets a quick snapshot of your life. They need to know all relevant materials, discard anything that could potentially be incorrect evidence, and render a decision quickly. On the other side of the coin, Collaborative law involves people who know each other very well. There is room for discussion of options, emotions, and opinions. There is the ability to tailor the financial disclosure to discuss only issues that might be in dispute. The option is there to have several meetings and bring in several coaches to fully explain the situation. In this way, the decision that is ultimately decided upon is made by the parties to the collaboration who are fully informed of their matter, as opposed to a third party judge, in the Court setting, who has just seen that quick snapshot of their lives.

The last key differentiating characteristic I will mention, although there are many more, is that in the Collaborative model, the parties and lawyers all enter into a contract at the beginning of the process. The contract has many unique characteristics, but perhaps the most important one is that the contract binds the parties and the lawyers to work the respective interests, issues, and solutions through to completion. In the event the parties are unable to resolve their matter through the collaboration process, both lawyers will have to withdraw from assisting the parties any longer. The parties will then have to go and get new lawyers to assist with outstanding issues in dispute.  This characteristic of Collaborative law puts a strong emphasis and background pressure on both the parties and lawyers to find a resolution. Otherwise, the parties incur significant expense and time delay in going out and finding new lawyers to start the Court process. This characteristic of the Collaborative law contract is very helpful in pushing past those sometimes difficult moments in the process when it appears a road block may have been hit.

I am a trained and certified Collaborative law lawyer, although I still do have many standard family law litigation files.  If you would be interested in sitting down for a discussion of how the Collaborative law process may help you, and your former partner, resolve your separation in a way that is very often more amicable, self-directed, faster and cheaper, please do give me a call. I would be happy to sit down for a strategy conference to see if Collaborative law is the right fit in your circumstance.

This article is of a general nature only. It is based upon laws and policies in effect as of the date published, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.