What is collaborative family law? Why should I consider using that process?
Posted by Collaborative Family Law on January 15, 2013
The collaborative family law process was created in 1994 by an American lawyer who had litigated matrimonial disputes for over 30 years, and decided that there had to be a "better way". The collaborative method has basically spread to countries worldwide and has been used routinely in Canada since 2000. Our family court system is struggling with the overload of cases and delays in being heard at all stages of family law disputes. The reality is that often the best decision that can be made by our esteemed judges is one that neither party likes. People tend not to follow decisions that they feel they had no part in making, and people tend to follow agreements in which they were active participants. This is part of the reason that litigated cases tend to go back to court repeatedly over many years and incur very high legal costs, while negotiated agreements are either followed or changes are made by "out of court" methods such as mediation and collaborative family law.
In a collaborative family law case, each participant signs a binding contract that requires all participants to treat each other with honesty, openness and respect, and if there are children, the children's interests are to be prioritized. The participants have a series of meetings as a group to review and discuss parenting issues, financial disclosure and creative possibilities for resolution of the dispute. Each participant in the process is prevented from ever testifying in court and the lawyers are barred from representing the same parties in court if the collaborative process is unsuccessful. This contract achieves three important things that distinguish the collaborative process from other methods of dispute resolution, including court:
- There is a serious financial disincentive for either of the separating parties to abandon the process and start from the beginning with new lawyers;
- There are no "threats" to bring the matter before the court if one party is unsatisfied and negotiation continues in a less adversarial environment;
- The lawyers have nothing to gain by causing the process to fail as they are prevented from taking the case to court or trial. The lawyers use their problem-solving abilities, creativity and communication skills to focus on achieving a settlement.
The only way to resolve the issues in the collaborative family law process is by agreement between the parties and this results in an environment of respect, creativity, courtesy and cooperation. The parties are encouraged to focus on building trust and communication skills that the former couple needs post-separation to effectively co-parent their children. Each party will need to retain a lawyer with the required collaborative family training. Additional professionals such as social workers, psychologists and financial advisors who have collaborative training may become participants in a collaborative family law case. Such professionals are retained jointly by the parties and their sole job is to help the parties achieve a settlement without going to court. There needs to be a fair distribution of assets to both partners, and also a plan to distribute the financial resources in a way that achieves financial security for both parties. Mental health professionals such as social workers and psychologists will help provide support and guidance to assist with the transition to two households, while minimizing the long-term negative effects from the separation. Other professionals who may assist with a case may become involved as "joint experts", such as accountants or business valuators. The lawyers in a collaborative family law case will use the same types of experts who are available in court to arrive at a successful resolution.
The collaborative family law lawyers ensure that each of the parties knows his or her respective legal rights. The settlements achieved reflect what the result would be in court; or refer to what the result would be if the laws were followed strictly, and provide reasons and justification for any significant deviation from what would happen in court. There is more room for crafting creative solutions that are tailored to the parties' needs in the collaborative family law environment.
The collaborative family law process is more efficient than court in terms of time and costs. A litigated family law case generally takes more than eighteen (18) months to be resolved, either by settlement or trial. The parties do not have any control over the delays inherent in the court system. The time to resolve a collaborative family law case is generally less than half the time of a litigated court dispute, in the range of six (6) to eight (8) months, and participants have more control over the scheduling and frequency of their settlement meetings. The goal of collaborative family law is that a Separation Agreement will be signed regarding all issues, and if a divorce is needed, it will be the only Court Order obtained and will proceed on an uncontested basis.
Collaborative family law is not for every separating couple, but for many couples, it offers a more efficient, less expensive and more respectful way to end their relationship or marriage. It helps to begin their new future as former spouses with a more positive and optimistic outlook. The collaborative family law process recognizes that a separation is not simply a legal issue, but a family problem with legal, financial, emotional and psychological considerations that may be best addressed in a safe, private and dignified environment.