Difference between revisions of "Collaborative Negotiation"

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|link        = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
|link        = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
}}In the collaborative process, the parties and their lawyers work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship. The parties work with counsellors 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.  


This section provides a provides a <span class="noglossary">brief</span> introduction to the collaborative process, a step-by-step overview of what happens, and resources for learning more and getting started.
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 <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 collaborative process is a non-adversarial and voluntary process where each party retains a collaboratively trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues arising from separation but also the emotional issues. The emotional issues of separation can often be an impediment to moving forward efficiently with the legal issues. Divorce coaches (counsellors trained in the collaborative process) often work with the couple to manage the emotions typically associated with separation and finalize a parenting plan that best meets the needs of the children. A financial neutral (also trained in the collaborative process) can assist in reviewing all financial options for the couple. If a child’s voice needs to be heard a child specialist can be retained. This may sound like many professionals however in the collaborative process we build the team to suit the needs of the couple and family. This team approach is more specialized and is often a cost-effective way to deal with separation (rather than just leaving it all to the lawyers).  
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.


The goal of the collaborative process is to assist the couple in reaching a reasonable settlement that restructures the family in the most positive manner going forward—recognizing that families continue and need to flourish despite separation. Parents need to be able to continue to co-parent effectively after separation.  
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.


==How do I start in the collaborative process?==
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.


Because it is a voluntary process, both you and your spouse must agree to proceed in this process.  Most collaborative professionals believe that it is most often a more cost-effective and timely process than litigation and consider it to be a more holistic approach to preserving families going through separation.
==How do I start a collaborative process?==


Once you and your spouse agree to use the collaborative process, each of you must retain a collaboratively trained lawyer. Sometimes the process starts when the couple meets with a divorce coach first and then collaborative lawyers are brought in.
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.


===Finding a collaborative professional===
===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:
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.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Lower Mainland)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylawgroup.com Collaborative Family Separation Professionals] (Victoria)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (the interior)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey, New Westminster and the Fraser Valley)


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


The collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement. That agreement provides that:
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:


* each party will not commence a court action while in the process;
*no party will commence a court action while in the process,
* each party will make full financial disclosure;
*each party will make full disclosure of their financial information and circumstances,
* all communications are confidential until a written separation agreement is signed;
*all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
* neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
*none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
* a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
*each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
* the parties will make best efforts to communicate in a respectful manner.
*the parties will make their best efforts to communicate with each other in a respectful manner.


==Next steps in the collaborative process==
==Next steps in collaborative processes==


The majority of the work in the collaborative process takes place in meetings with the collaborative professionals and the couple. The professionals strive to identify the needs and interests of each spouse, and together with the spouses, discuss options for settlement and seek resolution of the issues. Typically the couple is very involved in the discussions and retains control over the process and the outcome. As needed, the divorce coaches and the financial neutral participate in these meetings.
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.


===Financial disclosure===
===Financial disclosure===


As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seeks full disclosure of all documents and information relevant to the issues between the spouses. Relevant documents often include:
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 all other financial assets,
*statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
*current statements for debts including loans, mortgages and credit cards,
*current statements for debts including loans, mortgages, and credit cards,
*income tax returns,
*income tax returns, along with notices of assessment and any notices of reassessment,
*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 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:


The spouses produce their documents and information to the collaborative team on the understanding that discussions and negotiations throughout the process will remain private and confidential amongst the collaborative team.
<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>


===Exploring options for settlement===
===Exploring options for settlement===


Once financial disclosure has been made, the spouses and the collaborative lawyers (sometimes a financial neutral is involved) begin exploring options for settlement while maintaining confidentiality throughout. If necessary we obtain an opinion with respect to the current market value of real estate, shares in a business or other assets.  In the collaborative process a joint retainer for one opinion is typically sought to begin the discussions.
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.  


Discussions continue until the spouses reach a resolution that meets some of the highest needs of each spouse. Because settlement discussions are confidential, brainstorming options for settlement can be expansive.  Settlements can and often are creative, depending on the needs of each spouse.
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.  


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.
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.


===Parenting plan===
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.


When there are children, the parents will often work with the divorce coaches to resolve a parenting plan.  The parents meet with the divorce coaches to create and finalize the parenting plan focusing on the best interests of the children. If needed, a child specialist may be involved to meet with the child or children to bring back to the parents and the coaches the voice of the child or children.  While the coaches are working with the parents to finalize a parenting plan they can often help the parents to deal with any emotional issues that arise and equip the parents to co-parent in a more effective way going forward.  
===Developing parenting plans===
 
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.


===Reaching an agreement===
===Reaching an agreement===


The collaborative lawyers and coaches strive to assist the parties to reach a durable agreement (one that meets some of each of their highest needs) in a timely manner and without the time pressures of court. The collaborative lawyers will confirm the terms of the settlement reached in a separation agreement and attach to that agreement the parenting plan. The collaborative process ends when the separation agreement is finalized.  
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 [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.
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 the collaborative process?==
==What if a resolution is not reached in a collaborative process?==


Approximately 92% to 95% of all collaborative matters started result in a resolution (a separation agreement).  So it isn’t often that a resolution is not reached.  However, if that is the case, the parties must retain new lawyers and seek resolution in another process. All discussions and negotiations in the collaborative process are confidential and cannot be used in any way by a spouse in subsequent court proceedings. Despite this, there typically is a lot of learning from the collaborative process that is useful going forward.
Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.


==Collaborative Divorce Pro Bono Program==
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 BC Collaborative Roster Society has designed and runs a pro bono program for collaborative divorce.  This is a program that provides a collaborative team and the collaborative process to a couple that meets the eligibility criteria to resolve their separation.  For more information about eligibility and to apply to the pro bono, see the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.
==Pro Bono Collaborative Family Law Project==


<!---HIDDEN
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:
==Further Reading in this Chapter==


Return to the <span style="color: red;">first page</span> in this chapter.
#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.


* <span style="color: red;">Mediation</span>
The program gives preference to the most needy applicants.
* <span style="color: red;">Arbitration</span>
 
* <span style="color: red;">Parenting Coordination</span>
Visit the website of the [https://www.bccollaborativerostersociety.com/pro-bono-collaborative-family-law-project/ BC Collaborative Roster Society] for more information.
END HIDDEN--->


==Resources and links==
==Resources and links==
Line 103: Line 114:
===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]
* 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]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]


===Downloads===
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (province-wide)
 
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Vancouver and the lower mainland)
A sample collaborative process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]  
* [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)
*[https://www.clicklaw.bc.ca/resource/4191 Settling Out of Court] from Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4616 Resolving Disputes Without Going to Court] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/1253 Mediation, collaborative negotiation, and arbitration] from Dial-a-Law by the People's Law School


In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.
===Resources===


This sample document is just a generic reference. 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. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.
*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/ Participation Agreements] from the BC Collaborative Roster Society
**free, downloadable copies of the participation agreements currently used by its members.  


{{REVIEWED | reviewer = [[Sandy Thomson]] and [[Taryn Moore]], August 1, 2016}}
{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2021}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 22:53, 21 June 2022


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.


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