Collaborative Processes

From Clicklaw Wikibooks

In collaborative settlement processesA family of dispute resolution processes in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.", 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.

This section provides a provides a brief 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.

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.

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, throwing gasoline rather than water on the fire. In collaborative processes, on the other hand, the parties agree that they will 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 faithActing in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''. See "bad faith.", both to oneself and to others. Sometimes the breakdown of a relationship is so full of anger and bitterness that no approach will work except for litigation. If each partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." isn't willing to use and embrace the collaborative process, it simply will not work.

Overview

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 lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." will prefer to do things.

Finding a collaborative lawyer

The first step is for each spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." 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 will expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers will then explain the collaborative process to their respective clients, and contact each other to prepare a collaborative process participation agreement.

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

A quick Google search for "collaborative law bc" should net you some additional resources, including collaborative family law lawyers in your area.

Signing the participation agreement

The parties and their lawyers will then sign the participation agreement that commits them to working together, using non-adversarial problem-solving techniques and cooperative negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements." strategies, to reach a fair settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." without going to court. You are not in a collaborative process unless you and your lawyer have signed a participation agreement.

The participation agreement will contain a number of terms that are very important to understand. Among other things, most participation agreements require that:

  • the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
  • while the collaborative process is underway, neither party will start proceedings in court,
  • if litigation starts, both lawyers must withdraw and cannot continue to represent their clients,
  • a lawyer must end the collaborative process if their client withholds or misrepresents information, and
  • all communications generated during the process are to be kept strictly confidential.

Most participation agreements also say that there is no settlement until a separation agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." has been signed. This is to make sure that everyone is committed to the settlement and prepared to be bound by its terms.

Hiring the professional advisors

The parties and their lawyers will then start talking about whether any other help is likely to be needed, such as from counsellors or divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." coaches, child specialists (if there are children involved), or financial advisors (if there are complex financial issues). Child specialists and financial advisors are neutral in their approach and are not hired to represent or advocateA lawyer or a person other than a lawyer who helps clients with legal issues; to argue a position on behalf of a client. for either party. Rather, their role is to help the process along by providing objective information, opinions and options about the subjects at issue.

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.

Making disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

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
  • confirmation of income.

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 will never be used in court, but will 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 propertySomething which can be owned. See "chattels" and "real 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 will continue until a resolution is reached with which both parties are as happy as possible. You can expect that this will be a process of mutual compromise, and that the ultimate resolution will 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 saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property.", the parties' time with the children over holidays, and so forth. These interim agreements will all be replaced by the final agreement.

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.

Signing the final agreement

The terms of the settlement will be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer will all be asked for comment. Changes and adjustments will be made before the separation agreement is signed.

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 will remain bound by the terms of the agreement and cannot start a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. on things covered by the separation agreement, even to enforce the agreement.

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

The team

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.

The degree to which each of these professionals may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will 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.

The lawyers

The role of the lawyers in the collaborative process is to advance 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 decision.

However, in the collaborative approach to dispute resolutionThe processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation., 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.

The counsellors

The divorce coaches are psychologists and registered clinical counsellors, and are useful whether the parties are married or not. (Frankly "divorce coach" is a rather in accurate name for these team members.) 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.

The divorce coaches will 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.

The financial advisor

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. Their 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 child specialist

This child specialist is another neutral party. Their job is to represent the interests of the children, without any duty of loyalty to either parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent.". 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.


Resources and links

Legislation

Links

Downloads

A sample collaborative settlement 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.

Creativecommonssmall.png 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.
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