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FAQ Collaborative Family Law

What Is The Collaborative Law Process?

Collaborative family law is a novel process that focuses on reducing the level of conflict in which family conflicts all too often find themselves. It combines negotiation and mediation tools to shift the tone from a struggle the parties are locked in into a summit environment where discussions work on multi-levels. The procedures are aimed at building trust and moving parties to discussing the substance at the heart of the issues. Three basic principles describe the process:

  1. Free and voluntary exchange of information;
  2. A promise not to go to court while in the process;
  3. Committing to mutual respect and cooperation

Like mediation it is considered a form of alternative dispute resolution. But you have every reason for looking to the collaborative process for solving family conflicts rather than resorting first to the traditional court process. Not least the benefits to mental health, family well-being and your bottom line are not to be overlooked.

How Is The Collaborative Procedure Different?

Collaborative law takes a holistic approach towards the conflict. Where the court based procedure starts with parties formulating rigid legal positions that changes several times over the course of the lengthy process. The adversarial positions set up at the beginning become a challenge to break.

In the collaborative approach clients focus on their interests, goals and objectives, on how they envision their lives without the conflict. This becomes the starting point around which discussions and negotiations grow. Adversarial positions are avoided, instead the parties' visions for what life will look like are tabled and often while they can differ, they are compatible. This establishes a starting point for building consensus.

The process remains both open minded and robust enough to cover a wide array of subjects arising in a family conflict and the associated emotional aspects that flare up and, if left unattended or ignored, cast impediments to reaching that final solution. With this robustness the collaborative procedure is well suited to low, medium or high conflict divorce or separation.

How Are The Meetings Conducted?

Sessions aim to reduce tension and maximize the benefit of frank exchanges. Prior to each session you will review a suggested agenda with your lawyer and make contributions and changes you feel are necessary. You play an active role in developing content.

The first meeting is possibly the most formal; it will follow more or less a template structure with introductions, preliminary tabling of issues, deciding next steps and agreeing on any items that need immediate action. Your lawyer will go over the agenda with you and discuss it with the other lawyer. As a result there should be no reason for surprise at the meeting, minimal cause for stress since you go in with a fair idea what will happen.

Lawyers discuss content before meetings as will any other professional working on the file. The reason is to make sure sessions are focused and efficient. The goal is that both sides come to meetings having an good idea what each side hopes to accomplish. Your input will be essential as ultimately it's you together with your counsellors who decides what the subject(s) will be. While the lawyer contributes, the client has considerable control over topics and the course of discussions.

The professionals involved make a point that the atmosphere for the sessions themselves remain comfortable, informal and calm. Parties tend to be more relaxed and this promotes substantive exchanges. The professionals involved, particularly the lawyers, do not control the session as much as facilitate exchanges and keep it moving in a positive, productive direction. Discussions are strictly confidential so parties can feel free to speak frankly and comfortably when tabling concerns and solutions.

How Does The Collaborative Process Differ From The Traditional Court Driven One?

The client is at the centre of the process. While this might sound obvious it really isn't. While the traditional court process builds on your legal strengths and weaknesses, the collaborative focuses on your interests, goals and objectives. The legal aspect is only a piece in the puzzle, not the primary one and certainly not the only one. The interests, goals and objectives mark the points around which the lawyers and other professionals will work.

How do these direct the lawyers? First of all, since the environment is premised on trust, the lawyers do not compete with a view to winning advantages for their client. In the collaborative procedure lawyers work in concert to move the dispute towards settlement. Both are aware and respectful of the other side's interests, goals and interests so activity is joint exercise in finding those points on which both sides can settle.

Although each lawyer works closely with each other, they continue to faithfully represent their individual client's interests and provides legal advice as in a non-collaborative setting. The main difference being that the environment has eliminated as much as possible the stress associated with the process and allows everyone to participate without the cloud of explicit or veiled threats. When flare ups happen, rather than the process falling apart trained professionals deal with them to keep the process from derailing.

How Does The Procedure Look?

1. The process is a series of negotiation meetings and preparation for those meetings. The number of meetings will depend on the issues and their complexity. Prior to the first meeting each party will meet with their lawyer, discuss interests and goals, review the participation agreement and propose their agenda. At the initial meeting parties speak as to their interests and goals what they hope to achieve; a participation agreement will be signed by the parties, lawyers and any other professionals involved. The next steps will be agreed on and any item that needs immediate attention will be discussed.

2. The main feature to the process is the commitment not to litigate. Party pledge not to go to court or threaten court action so long as the process continues. The elimination of the threat of court removes coercive threats and letting all sides to speak freely with a view to settling. What is discussed remains confidential and cannot be used against the other if the process fails. Another feature if the process fails to reach an agreement and goes to court is that both lawyers are off the file. Neither lawyer who acted on the collaborative file can continue to act if it goes to court. Each lawyer is expected to commit totally to the process.

What Are Teams And How Do They Work?

The collaborative procedure uses a multi-disciplinary approach. Using an holistic approach professionals are drawn from the legal, mental health and financial fields. Each works within the confines of their expertise. The family and financial professional bring multiple perspectives expanding the potential for idea generation particularly in complex cases.

The Family Professional

The family professional, usually a social worker, family counselor, therapist or child specialist, can provide insight into concerns of the children and help craft parenting plans. In addition they give parties guidance and help manage conflict and improve communication . Similarly, they can help keep the lawyers from falling into traditional roles and provide valuable insight for dealing with conflict when it flares up.

The Financial Professional

The financial professional helps gather and explain financial information and create future projections for settlement options. If valuations are required they can prepare them. The presence of the financial professional may be crucial on developing solutions that maximize for both parties the resources in the pot.

All the professionals in the collaborative procedure are trained similarly to mediators. Their focus is on managing conflict, facilitating difficult conversations without blame or judgment. The efforts are directed to maintaining fairness and a positive, progressive movement in discussion.

Is The Process Expensive And Can Costs Be Controlled?

It is difficult to fix an amount for costs because that will vary depend on the complexity of your situation and the hourly rate for the professionals you choose. But that is probably true for whatever process you select. The more complex the situation the higher the costs whatever the procedure used. But I think it is safe to say everything being equal the collaborative procedure i is more direct and efficient with the focus from the start on problem solving will resolve matters at a far lower cost than a traditional approach. The collaborative approach will generally almost always be far more within reason than any court based process.

When it comes to expense you need to keep in mind 4 factors that invariably impact :

  1. Complexity of the issues;
  2. Client expectations;
  3. Degree of conflict;
  4. The selection of counsel.

Complexity is the fact situation the clients find themselves in; it is what it is; complex and disputed parenting plans will require more time and resources than one where the parties are in virtual agreement at the start. Clients with long term marriages who have complex assets or businesses will require more attention to the financial component that a short marriage where both have little assets and basic employment income.

Client expectations, the intensity of the conflict and the personal tendencies of the lawyers are the 3 unknown variables that end to explode costs. If you can get a handle on these you will to a large degree reduce costs and keep them manageable. The collaborative procedure is designed to minimize the impact of these 3 variables.

The lawyers, normally a prime source of conflict, are motivated in the collaborative process to reduce conflict, not make it worse. By the nature of the process they work together not in contest.

Clients' expectations are managed by focusing on interests, not positions. What's the difference? In litigation sides usually take high position, whether reasonable to not, in order to allow for negotiating down to a lesser one that is hopefully still above their bottom line. The result is a game of risk with high costs. The collaborative method avoids this negotiation tactic by persuading both parties to aim towards mutual benefit and gain. By entering into a collaborative approach the sides eliminate one the most powerful forces that otherwise push up costs.

Do Teams Add To Costs?

It might be counter-intuitive but the use of family and financial professionals on a team will not increase costs. The opposite is just as likely the case. They will help control costs.

On the financial side the financial professional collects and prepares financial documentation at a lower cost than the lawyers. Since the financial expert is working for both parties you are paying one hourly rate that gets split. An added bonus is that a prime source for dispute is removed. One batch of financials is prepared as opposed to two. The financial expert is completely neutral so the lawyers can trust the financial data produced and discuss substance instead of spending time questioning each other's financial disclosures. Similarly if business valuations are needed the use of a neutral valuator simplifies the process, eliminating the need for multiple reports.

Additional savings are achieved because the professionals only work as needed. Only the legal, family or financial work when there is a perceived need. If they don't have to work or attend meetings no fees are incurred. For example, when a child specialist works with the parents on a parenting plan there is no need for the lawyers. So you are not each paying a lawyer while the child specialists works. When the plan is worked out the lawyer may only be required when drafting the final agreement incorporating terms.

Is The Procedure Flexible For Different Situation?

The advantage to the collaborative approach is that it can be moulded to clients' needs. Essentially since the process tailors itself to the specific needs of clients, their goals, objectives and interests, the process can be streamlined to suit the client's budget. When sides are in basic agreement on several or most points and are clearly committed to avoiding bitter fights, an abbreviated process can be used with no loss to the holistic approach.

How Do I Find A Collaborative Lawyer?

The nature of the process demands a good listener. The traits that make a good mediator make a good collaborative lawyer. Aside from traditional skills and legal knowledge expected from a lawyer, you will want additional skills for managing conflict and the different personality types.

There is no sure method for finding the lawyer with all the necessary skills. Each has different strengths and it is difficult to assess those strengths in an hour meeting. But one measure is whether you are comfortable the lawyer has heard and understands your interests and objectives. Also do you feel the lawyer's style is compatible with you. Since you will play a more active role throughout the negotiations you should feel comfortable speaking with and directing your lawyer on handling the process.