Collaborative Negotiation

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.

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

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).

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.

How do I start in the collaborative process?

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.

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.

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:

• BC Collaborative Roster Society (BC-wide Roster)
• Collaborative Divorce Vancouver (Lower Mainland)
• Victoria's Collaborative Family Separation Professionals (Victoria)
• Okanagan Collaborative Family Law Group (Okanagan)
• Collaborative Law Group of Nelson (Nelson)
• Collaborative Association in Metro Vancouver (Surrey/New Westminster/Fraser Valley)

Signing the participation agreement

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

• each party will not commence a court action while in the process;
• each party will make full financial disclosure;
• all communications are confidential until a written separation agreement is signed;
• neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
• a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
• the parties will make best efforts to communicate in a respectful manner.

Next steps in the collaborative process

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.

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:

• statements for bank accounts, retirement savings accounts, investment accounts and all other financial assets,
• current statements for debts including loans, mortgages and credit cards,
• income tax returns,
• corporate financial statements and corporate tax returns, and
• confirmation of income.

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.

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.

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.

You may want to have a look at 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.

Parenting plan

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.

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.

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

What if a resolution is not reached in the 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.

Collaborative Divorce Pro Bono Program

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 BC Collaborative Roster Society website.

Resources and links

Legislation

• Family Law Act

Links

• BC Collaborative Roster Society
• Collaborative Divorce Vancouver
• Victoria's Collaborative Family Law Group
• Okanagan Collaborative Family Law Group
• Collaborative Law Group of Nelson
• Collaborative Association in Metro Vancouver

Downloads

A sample collaborative process participation agreement is available for download: Participation Agreement (Sample) PDF

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

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. Copies of the most up to date participation agreements used by collaborative process professionals in BC can be found on the BC Collaborative Roster Society website.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Deirdre Severide and Catherine Brink, May 20, 2019.

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.