Collaborative Negotiation: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = outofcourt}}
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}}In collaborative settlement processes, the parties, their lawyers, and their counsellors work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship, and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.
}}In collaborative processes, the parties and their lawyers, and sometimes other professionals, work together as a team to find a resolution to the issues arising from the breakdown of the parties' relationship. The other professionals the parties might work with include psychologists or clinical counsellors, and experts such as child specialists and financial specialists, who are called upon as the need arises during the collaborative process.
 
Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, in a cooperative rather than a competitive way. As a result, it can help people deal with difficult issues, like substance abuse and mental health problems, in a far more constructive way than going to court. It is, in my view, one of the best possible ways of resolving family law disputes.


This section provides a provides a <span class="noglossary">brief</span> introduction to collaborative settlement processes, a step-by-step overview of what happens, and a description of the roles played by each of the team members.
This section provides a <span class="noglossary">brief</span> introduction to collaborative negotiation, a step-by-step overview of what happens in collaborative processes, and resources for learning more and getting started.


==Introduction==
==Introduction==


The breakdown of a relationship is an extraordinarily difficult experience for everyone involved. Contrary to the impression you might form from much of the rest of this website, a couple's legal difficulties are only one part of the whole experience of ending a long-term relationship. The purpose shared by all collaborative processes is to provide a non-adversarial space for the parties to resolve their issues and emerge, at the end of the process, as emotionally- and psychologically-whole people.
Collaborative negotiation is a voluntary, cooperative process in which each party retains a collaboratively-trained lawyer, and other collaborative professionals as needed, to resolve not just the legal issues but also the emotional issues arising from the end of a long-term relationship. (Not surprisingly, the emotional issues that come up after separation can often be a barrier to resolving the legal issues.) The other professionals who might be involved in a collaborative process include:
 
Litigation, which used to be the primary mechanism for resolving family law disputes, is adversarial by nature. Rather than improving things, it usually aggravates the emotional difficulties couples face when their relationship breaks down. In collaborative processes, on the other hand, the parties agree that they <span class="noglossary">will</span> not go to court, and sign an agreement to that effect, and mental health professionals are included in the process as necessary.


Of course, not every couple is suited to a collaborative approach. This process requires honesty and good faith, both to oneself and to others. Sometimes the breakdown of a relationship is so full of anger and bitterness that no approach <span class="noglossary">will</span> work except for litigation. If each party isn't willing to use and embrace the collaborative process, it simply <span class="noglossary">will</span> not work.
*'''Divorce coaches:''' counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children. ("Divorce coach" really isn't the best name for the mental health professionals who take this role, since collaborative negotiation is available for all families, not just those in which the adults are married to each other.)
*'''Financial specialists:''' neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. They include accountants, business valuators and investment advisors, as well as people who are experts in wills and estates, taxation, retirement planning and public benefits.
*'''Child specialists:''' neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard. They may also make recommendations about the parenting arrangements that will best meet the children's needs.


==Overview==
This sounds like an awful lot of professionals; however, in collaborative processes the lawyers and their clients work together to build the team that best suits their needs and circumstances. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation than just leaving it all to the lawyers. Most collaborative professionals believe that this process is normally more cost-effective and more efficient than litigation.


The following discussion takes a general look at collaborative settlement processes. Since collaborative approaches are very much tailored to the unique circumstances of each couple, their preferences and those of their lawyers, you should read what follows with a grain of salt. This description may not represent how you or your collaborative lawyer <span class="noglossary">will</span> prefer to do things.
The purpose of collaborative negotiation is to help the parties negotiate a reasonable settlement that restructures their family in the most positive manner possible, recognizing that families continue and need to flourish despite the separation of the adults involved.  Parents ''must'' be able to effectively work together to raise their children long after their romantic relationship has come to an end, and that is the fundamental goal of collaborative negotiation.


===Finding a collaborative lawyer===
==How do I start a collaborative process?==


The first step is for each spouse to find and hire a lawyer. You should look for a lawyer experienced in collaborative law, or, at a bare minimum, one who is open to the idea; most lawyers who practise collaborative law <span class="noglossary">will</span> expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers <span class="noglossary">will</span> then explain the collaborative process to their respective clients, and <span class="noglossary">contact</span> each other to prepare a collaborative process participation agreement.
Because collaborative negotiation is voluntary, everyone has to agree to use it to resolve their dispute. Once the parties have agreed to use a collaborative process, they must each hire a collaboratively-trained lawyer. Sometimes the process starts when the parties meet with a <span class="noglossary">divorce</span> coach, and then decide to involve lawyers trained in collaborative processes.


A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:
===Finding a collaborative professional===


* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver],
The first step in the process is to find and meet with a collaborative lawyer or <span class="noglossary">divorce</span> coach. To find collaborative lawyers and <span class="noglossary">divorce</span> coaches, go to these websites:
* [http://www.nocourt.net/familylaw.php Collaborative Association in Metro Vancouver],
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals],
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group], and
* [http://www.nocourt.ca Collaborative Law Group of Nelson].


A quick [http://www.google.com/search?q=collaborative+law+bc Google search] for "<tt>collaborative law bc</tt>" should net you some additional resources, including collaborative family law lawyers in your area.
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)


===Signing the participation agreement===
===Signing the participation agreement===


The parties and their lawyers <span class="noglossary">will</span> then sign the participation agreement that commits them to working together, using non-adversarial problem-solving techniques and cooperative negotiation strategies, to reach a fair settlement without going to court.
Once each party has hired a collaboratively-trained lawyer, they will all sign a collaborative participation agreement. The process starts when the participation agreement is signed. The agreement says, among other things, that:


The participation agreement <span class="noglossary">will</span> contain a number of terms that are very important to understand. Among other things, most participation agreements <span class="noglossary">will</span> provide that:
*no party will commence a court action while in the process,
*each party will make full disclosure of their financial information and circumstances,
*all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
*none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
*each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
*the parties will make their best efforts to communicate with each other in a respectful manner.


*the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
==Next steps in collaborative processes==
*while the collaborative process is underway, neither party <span class="noglossary">will</span> start proceedings in court,
*if litigation starts, both lawyers must withdraw and cannot continue to represent their clients,
*the lawyer must end the collaborative process if his or her client withholds or misrepresents information, and
*all communications generated during the process are to be kept strictly confidential.


Most participation agreements say that there is no settlement until a separation agreement has been signed. This is to make sure that everyone is committed to the settlement and prepared to be bound by its terms.
Most of the work in collaborative negotiation takes place in meetings between the parties and the professional members of the process. The professionals work to identify the needs and interests of each of the parties, and, together with the parties, discuss options for settlement and the resolution of the legal issues. The parties are very involved in these discussions, and retain control over the collaborative process and its outcomes. Other professionals &mdash; <span class="noglossary">divorce</span> coaches, financial specialists, child specialists, and others &mdash; will participate in these meetings as needed.


===Hiring the professional advisors===
===Financial disclosure===


The parties and their lawyers <span class="noglossary">will</span> then start talking about whether any other help is likely to be needed, such as from divorce coaches, child specialists (if there are children involved), or financial advisors (if there are complex financial issues). These professionals are neutral in their approach and are not hired to represent or advocate for either party. Rather, their role is to help the process along by providing objective options and opinions about the subjects at issue.
As in all family law dispute resolution processes, honest, accurate and up-to-date financial disclosure is essential. The lawyers will work with the parties to make full disclosure of all relevant documents and information. The sort of documents that are most often important in making financial disclosure include:


Where the legal and emotional issues are straightforward, it's possible that no other professionals need to be hired. If something comes up during the process which suggests that it would be helpful to recruit a new team member, the professional can be hired then.
*statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
 
*current statements for debts including loans, mortgages, and credit cards,
===Making disclosure===
*income tax returns, along with notices of assessment and any notices of reassessment,
 
The team then begins the process of making disclosure of all documents and information relevant to the issues between the parties. The collaborative process is not a poker game, with each spouse bluffing the other and trying to take advantage; this process is transparent and requires absolute and unswerving honesty. Relevant documents often include:
 
*current and historic statements for bank accounts, retirement savings accounts and investment accounts,
*current statements for loans, mortgages and credit cards,
*tax returns,
*corporate financial statements and corporate tax returns, and
*corporate financial statements and corporate tax returns, and
*confirmation of income.
*statements of the parties' current incomes.
 
The parties produce their documents and information to each other on the understanding that the information (except for certain legal documents such as financial statements) and the content of the negotiations <span class="noglossary">will</span> never be used in court, but <span class="noglossary">will</span> remain private and confidential among those involved in the collaborative process.
 
===Starting discussions===
 
Once full disclosure has been made, the parties then begin to talk about what their personal interests and expectations are, and about what potential settlements might look like. This can be a short process or a long process, depending on the complexity of the emotional issues and the distance between the outcomes each party hopes to achieve. It may be necessary to delay things to get financial advice or for a property or business to be valued, to get some counselling, or to get an opinion from the child specialist.
 
Discussions between the parties and their lawyers <span class="noglossary">will</span> continue until a resolution is reached with which both parties are as happy as possible. You can expect that this <span class="noglossary">will</span> be a process of mutual compromise, and that the ultimate resolution <span class="noglossary">will</span> reflect neither party's original position.  


Along the way, depending on the nature of the issues, one or more temporary agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap solutions intended to deal with problems like the sale of the family home, the parties' time with the children over holidays, and so forth. These interim agreements <span class="noglossary">will</span> all be replaced by the final agreement.
The parties provide their documents and information to the collaborative team on the express understanding that all discussions and negotiations in the collaborative process are private and confidential. In fact, this is a requirement of the ''[[Family Law Act]]'' as well. Section 5 says that:


You may want to have a look at "[[Family Law Mediation#Tips for successful mediation|Tips for successful mediation]]" in the section on [[Family Law Mediation]] in this chapter. It has information about communication skills that can be helpful during the negotiation process.
<blockquote><tt>(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.</tt></blockquote>
<blockquote><tt>(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.</tt></blockquote>


===Signing the final agreement===
===Exploring options for settlement===


The terms of the settlement <span class="noglossary">will</span> be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer <span class="noglossary">will</span> all be asked for comment. Changes and adjustments <span class="noglossary">will</span> be made before the separation agreement is signed.
Once financial disclosure has been made, the parties and their lawyers, and sometimes a financial specialist, begin exploring options for settlement. If necessary, the lawyers will get expert opinions on the current market value of any property, businesses, artwork, collections, and other assets that can be difficult to value. In collaborative negotiation, the parties will usually retain a valuator or appraiser together. Discussions continue until the parties reach a resolution that meets their most important needs.  


The collaborative process normally ends with the signing of the final agreement. However, until and unless the participation agreement is cancelled or set aside, the lawyers <span class="noglossary">will</span> remain bound by the terms of the agreement and cannot start a court proceeding on things covered by the separation agreement, even to enforce the agreement.
We've said a few times that collaborative processes are private and confidential. This includes both discussions in the negotiation process &mdash; whether those communications occur in meetings between the parties and their lawyers or in correspondence by mail and email &mdash; and the documents and information that are exchanged for the purposes of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.  


Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.
Because collaborative negotiation is confidential, discussions to identify options for settlement tend to involve some surprisingly candid, transparent and imaginative brainstorming, even when the parties are dealing with very difficult subjects like substance use and abuse, physical and mental health challenges, and parenting deficits. The settlements that result from collaborative negotiation are usually equally creative, sometimes in ways that are not possible through processes like arbitration and litigation.


==The team==
You may want to have a look at the discussion of [[Family Law Mediation#Tips for successful mediation|tips for successful mediation]] in the [[Family Law Mediation|Mediation]] section later in this chapter. It has information about communication skills that can be helpful during collaborative processes.


The collaborative team includes the parties' lawyers, who are family law lawyers with special training in collaborative processes. It may also include mental health professionals, usually psychologists or registered clinical counsellors, who work as the parties' divorce coaches. Where appropriate, a financial specialist and a child specialist may also be part of the team. All team members work cooperatively with each other and the parties, and sometimes the parties' children.
===Developing parenting plans===


The degree to which each of these professionals may become involved <span class="noglossary">will</span> depend on the particular circumstances of each couple. For some couples, the child specialist <span class="noglossary">will</span> become the key team member, for others it may be their divorce coaches. A financial specialist may be unnecessary when the financial issues are straightforward, but when they are particularly complicated, the financial specialist may be critical to the success of the collaborative process.
When there are children, the parties will usually work with their <span class="noglossary">divorce</span> coaches to develop and settle on a parenting plan that focuses on the best interests of their children. If needed, a child specialist may be involved to meet separately with the children in an effort to bring other opinions, and sometimes the voice of the children, into the parents' discussions. While the coaches are working with the parents to finalize a parenting plan, they help the parents deal with any emotional issues that arise and work with the parents to equip them, as best as possible, to raise their children together and resolve any problems that may arise in the future.


===The lawyers===
===Reaching an agreement===


The role of the lawyers in the collaborative process is to <span class="noglossary">advance</span> the needs and protect the interests of their respective clients. The lawyers advise their clients on their legal rights and obligations, and provide them with information about the law, and the probable long- and short-term results of any particular <span class="noglossary">decision</span>.
The lawyers and divorce coaches try to help the parties reach a durable, long-lasting agreement that addresses most of the parties' needs and priorities in a timely manner, without the pressures and conflict involved in going to court. When an agreement is reached, the lawyers will confirm the terms of the settlement in a separation agreement and attach the parenting plan to that agreement. The collaborative process ends when the separation agreement is finalized and everyone has signed the agreement.


However, in the collaborative approach to dispute resolution, the lawyers are also part of a team that is collectively dedicated to finding a comprehensive settlement. As a result, the parties' lawyers can be expected to behave in a much more transparent manner and work in a manner that is geared towards both parties' success.
Read the [[Agreements after Separation]] section in the [[Family Law Agreements]] chapter for a discussion about separation agreements and their effect.


===The divorce coaches===
==What if a resolution is not reached in a collaborative process?==


The divorce coaches are psychologists and counsellors. They help guide their clients through the emotional turbulence of the breakdown of their relationship, and assist each party to maintain a relatively objective view of the situation. They may also help their clients develop their views on the issues and help them develop more effective communication strategies.
Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.


The divorce coaches <span class="noglossary">will</span> talk to each other and to the lawyers during the collaborative process, and share their respective clients' experiences and concerns. The divorce coaches may also work together, sometimes in joint sessions with the parties, to develop strategies and solutions for the benefit of everyone.
When a dispute is not resolved through collaborative negotiation, which doesn't happen all that often, the parties must hire new lawyers and try to resolve their dispute some other way. It is important to remember, however, that all of the discussions and negotiations that happened in the collaborative process are private and confidential, and can't be used by anyone in any court proceedings.


===The financial advisor===
==Pro Bono Collaborative Family Law Project==


This financial advisor is a neutral party in the process, someone without any loyalty to either party, who is able to look at things objectively and impartially. His or her job is to present options to help the parties deal with the financial aspects of their relationship and their short- and long-term needs.
The BC Collaborative Roster Society offers a pro bono program for people who are separating, do not have lawyers, and are willing to meet with each other and negotiate using the principles of collaborative negotiation but can't afford the collaborative team for their case. The Pro Bono Collaborative Family Law Project is available in Vancouver and Victoria. To be eligible for the program, the parties must:


===The child specialist===
#both consent to participate in settlement meetings,
#have a combined gross annual income of less than $75,000, and
#own property, excluding pension plans, with less than $100,000 in equity.


This child specialist is another neutral party. His or her job is to represent the interests of the children, without any duty of loyalty to either parent. While all of the team members are of course concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, to help the parties develop a proper parenting plan, and to identify and address issues regarding the children's future care.
The program gives preference to the most needy applicants.


<!---HIDDEN
Visit the website of the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/ BC Collaborative Roster Society] for more information.
==Further Reading in this Chapter==
 
Return to the <span style="color: red;">first page</span> in this chapter.
 
* <span style="color: red;">Mediation</span>
* <span style="color: red;">Arbitration</span>
* <span style="color: red;">Parenting Coordination</span>
END HIDDEN--->


==Resources and links==
==Resources and links==
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===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''


===Links===
===Links===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* [http://www.nocourt.net/familylaw.php Collaborative Association in Metro Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]
<!--HIDDEN UNTIL WE DETERMINE FILE DOWNLOAD FUNCTION


===Downloads===
* [https://www.bccollaborativerostersociety.com/ BC Collaborative Roster Society] (province-wide)
*[https://www.collaborativedivorcebc.com/ Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
*[https://www.collaborativefamilylawgroup.com/ Collaborative Family Separation Professionals] (Victoria)
*[https://collaborativefamilylaw.ca/ Okanagan Collaborative Family Law Group] (the interior)
*[https://www.nocourt.net/ The Collaborative Association] (Surrey and the Fraser Valley)
* [https://dialalaw.peopleslawschool.ca/resolving-disputes-without-going-to-court/  Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resources/dial-law-mediation-collaborative-negotiation-and-arbitration Mediation, Collaborative Negotiation, and Arbitration] from Dial-a-Law by the People's Law School


The link below will open a sample collaborative process participation agreement in a new window. You may require a PDF reader to view this file; Adobe Acrobat Reader is a free PDF reader available for download from <span style="color: red;">Adobe Software</span>. In this sample, Jane Doe and John Doe are entering into a collaborative process agreement with their lawyers, Alice Smith and Sylvia Black.
===Resources===


:::: <span style="color: red;">Collaborative Process Agreement</span> (PDF)
*Sample collaborative negotiation [[Media:Participation Agreement sample.pdf | participation agreement]] (PDF)
**This sample participation agreement may not look like the participation agreement you may be asked to sign. It provides a more or less accurate picture of what collaborative participation agreements usually say, but should be used only as a reference.
*[https://www.boydarbitration.ca/participationagreements Participation Agreements & Other Forms] from the website John-Paul Boyd Arbitration Chambers
**model participation agreements for download.
*[https://www.bccollaborativerostersociety.com/collaborative-practice/participation-agreements/precedents.php Participation Agreements] from the BC Collaborative Roster Society
**free, downloadable copies of the participation agreements currently used by its members.


This sample document is just that: a sample. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation and may not reflect the terms of the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.
{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}
END HIDDEN-->
 
{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}


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Latest revision as of 20:54, 19 August 2024


{{LSSbadge |resourcetype = more information on |link = [collaborative family lawyers collaborative family lawyers] }}In collaborative processes, the parties and their lawyers, and sometimes other professionals, work together as a team to find a resolution to the issues arising from the breakdown of the parties' relationship. The other professionals the parties might work with include psychologists or clinical counsellors, and experts such as child specialists and financial specialists, who are called upon as the need arises during the collaborative process.

Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, in a cooperative rather than a competitive way. As a result, it can help people deal with difficult issues, like substance abuse and mental health problems, in a far more constructive way than going to court. It is, in my view, one of the best possible ways of resolving family law disputes.

This section provides a brief introduction to collaborative negotiation, a step-by-step overview of what happens in collaborative processes, and resources for learning more and getting started.

Introduction

Collaborative negotiation is a voluntary, cooperative process in which each party retains a collaboratively-trained lawyer, and other collaborative professionals as needed, to resolve not just the legal issues but also the emotional issues arising from the end of a long-term relationship. (Not surprisingly, the emotional issues that come up after separation can often be a barrier to resolving the legal issues.) The other professionals who might be involved in a collaborative process include:

  • Divorce coaches: counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children. ("Divorce coach" really isn't the best name for the mental health professionals who take this role, since collaborative negotiation is available for all families, not just those in which the adults are married to each other.)
  • Financial specialists: neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. They include accountants, business valuators and investment advisors, as well as people who are experts in wills and estates, taxation, retirement planning and public benefits.
  • Child specialists: neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard. They may also make recommendations about the parenting arrangements that will best meet the children's needs.

This sounds like an awful lot of professionals; however, in collaborative processes the lawyers and their clients work together to build the team that best suits their needs and circumstances. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation than just leaving it all to the lawyers. Most collaborative professionals believe that this process is normally more cost-effective and more efficient than litigation.

The purpose of collaborative negotiation is to help the parties negotiate a reasonable settlement that restructures their family in the most positive manner possible, recognizing that families continue and need to flourish despite the separation of the adults involved. Parents must be able to effectively work together to raise their children long after their romantic relationship has come to an end, and that is the fundamental goal of collaborative negotiation.

How do I start a collaborative process?

Because collaborative negotiation is voluntary, everyone has to agree to use it to resolve their dispute. Once the parties have agreed to use a collaborative process, they must each hire a collaboratively-trained lawyer. Sometimes the process starts when the parties meet with a divorce coach, and then decide to involve lawyers trained in collaborative processes.

Finding a collaborative professional

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches, go to these websites:

Signing the participation agreement

Once each party has hired a collaboratively-trained lawyer, they will all sign a collaborative participation agreement. The process starts when the participation agreement is signed. The agreement says, among other things, that:

  • no party will commence a court action while in the process,
  • each party will make full disclosure of their financial information and circumstances,
  • all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
  • none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
  • each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
  • the parties will make their best efforts to communicate with each other in a respectful manner.

Next steps in collaborative processes

Most of the work in collaborative negotiation takes place in meetings between the parties and the professional members of the process. The professionals work to identify the needs and interests of each of the parties, and, together with the parties, discuss options for settlement and the resolution of the legal issues. The parties are very involved in these discussions, and retain control over the collaborative process and its outcomes. Other professionals — divorce coaches, financial specialists, child specialists, and others — will participate in these meetings as needed.

Financial disclosure

As in all family law dispute resolution processes, honest, accurate and up-to-date financial disclosure is essential. The lawyers will work with the parties to make full disclosure of all relevant documents and information. The sort of documents that are most often important in making financial disclosure include:

  • statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
  • current statements for debts including loans, mortgages, and credit cards,
  • income tax returns, along with notices of assessment and any notices of reassessment,
  • corporate financial statements and corporate tax returns, and
  • statements of the parties' current incomes.

The parties provide their documents and information to the collaborative team on the express understanding that all discussions and negotiations in the collaborative process are private and confidential. In fact, this is a requirement of the Family Law Act as well. Section 5 says that:

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Exploring options for settlement

Once financial disclosure has been made, the parties and their lawyers, and sometimes a financial specialist, begin exploring options for settlement. If necessary, the lawyers will get expert opinions on the current market value of any property, businesses, artwork, collections, and other assets that can be difficult to value. In collaborative negotiation, the parties will usually retain a valuator or appraiser together. Discussions continue until the parties reach a resolution that meets their most important needs.

We've said a few times that collaborative processes are private and confidential. This includes both discussions in the negotiation process — whether those communications occur in meetings between the parties and their lawyers or in correspondence by mail and email — and the documents and information that are exchanged for the purposes of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

Because collaborative negotiation is confidential, discussions to identify options for settlement tend to involve some surprisingly candid, transparent and imaginative brainstorming, even when the parties are dealing with very difficult subjects like substance use and abuse, physical and mental health challenges, and parenting deficits. The settlements that result from collaborative negotiation are usually equally creative, sometimes in ways that are not possible through processes like arbitration and litigation.

You may want to have a look at the discussion of tips for successful mediation in the Mediation section later in this chapter. It has information about communication skills that can be helpful during collaborative processes.

Developing parenting plans

When there are children, the parties will usually work with their divorce coaches to develop and settle on a parenting plan that focuses on the best interests of their children. If needed, a child specialist may be involved to meet separately with the children in an effort to bring other opinions, and sometimes the voice of the children, into the parents' discussions. While the coaches are working with the parents to finalize a parenting plan, they help the parents deal with any emotional issues that arise and work with the parents to equip them, as best as possible, to raise their children together and resolve any problems that may arise in the future.

Reaching an agreement

The lawyers and divorce coaches try to help the parties reach a durable, long-lasting agreement that addresses most of the parties' needs and priorities in a timely manner, without the pressures and conflict involved in going to court. When an agreement is reached, the lawyers will confirm the terms of the settlement in a separation agreement and attach the parenting plan to that agreement. The collaborative process ends when the separation agreement is finalized and everyone has signed the agreement.

Read the Agreements after Separation section in the Family Law Agreements chapter for a discussion about separation agreements and their effect.

What if a resolution is not reached in a collaborative process?

Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.

When a dispute is not resolved through collaborative negotiation, which doesn't happen all that often, the parties must hire new lawyers and try to resolve their dispute some other way. It is important to remember, however, that all of the discussions and negotiations that happened in the collaborative process are private and confidential, and can't be used by anyone in any court proceedings.

Pro Bono Collaborative Family Law Project

The BC Collaborative Roster Society offers a pro bono program for people who are separating, do not have lawyers, and are willing to meet with each other and negotiate using the principles of collaborative negotiation but can't afford the collaborative team for their case. The Pro Bono Collaborative Family Law Project is available in Vancouver and Victoria. To be eligible for the program, the parties must:

  1. both consent to participate in settlement meetings,
  2. have a combined gross annual income of less than $75,000, and
  3. own property, excluding pension plans, with less than $100,000 in equity.

The program gives preference to the most needy applicants.

Visit the website of the BC Collaborative Roster Society for more information.

Resources and links

Legislation

Links

Resources

  • Sample collaborative negotiation participation agreement (PDF)
    • This sample participation agreement may not look like the participation agreement you may be asked to sign. It provides a more or less accurate picture of what collaborative participation agreements usually say, but should be used only as a reference.
  • Participation Agreements & Other Forms from the website John-Paul Boyd Arbitration Chambers
    • model participation agreements for download.
  • Participation Agreements from the BC Collaborative Roster Society
    • free, downloadable copies of the participation agreements currently used by its members.
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2021.


  JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.