Jumbo shrimp. Working holiday. Open secret. Tragic comedy. Collaborative divorce. Which of these is not an oxymoron?
If you guessed the last one, you’d be right.
Collaborative family law is the new kid on the block, so to speak, in terms of alternate dispute resolution. Most clients are familiar with the traditional methods used to settle divorce cases like two-on-two negotiation, mediation, arbitration and of course, litigation. What is collaborative family law, and should you consider it?
Collaborative family law, or CFL, is an entirely different way of practising family law. In CFL, the lawyers for both clients agree to assist them in resolving conflict using co-operative strategies rather than adversarial techniques or litigation.
The commitment to work collaboratively is reflected in an agreement that the clients and the lawyers sign prior to any real negotiation. This agreement provides, among other things, that litigation will not be commenced while the parties are negotiating and that — in the event they are unable to negotiate a resolution to their dispute — neither lawyer will be eligible to represent his or her client in any subsequent litigation.
The agreement also provides that the clients will exchange all relevant information, reveal all concerns and agree on the terms and conditions of a mutually acceptable settlement.
Lawyers who work in the CFL field must be properly trained, because the principles and process goals of CFL are markedly different from traditional divorce law in the following ways:
- Proactive Participation: In CFL the clients are responsible for and intimately involved in the resolution of their issues. The clients do not simply sit back and let the lawyers “fight it out.” They voluntarily work with both lawyers to understand the legal consequences of their separation for themselves, the other party and their children, and are fully vested in the decision-making process through a series of four-way meetings during which both clients and both lawyers are present.
- Interest-Based Understanding: Unlike the adversarial process, the CFL model promotes understanding of the other person’s interests and concerns. The rationale here is that when parties understand each other, trust is fostered and hostility is reduced. The underlying principle is that when each party acknowledges and understands what is important to the other, creative and mutually acceptable solutions usually result.
- Co-operative Resolution: Because litigation is not an option in CFL, the lawyers and clients come up with creative solutions to their problems. They do not focus on what they would do or say if the case went to court; instead, they tend to work co-operatively and think outside the box. The solutions, at times, may be different than what a judge would do but may maximize both parties’ interests. As a lawyer who represents clients in both CFL and traditional negotiations, I can testify how different the CFL process is in this regard.
- Multi-Disciplinary Team Effort: Central to CFL is the idea that clients and their lawyers work as a team. This means, at times, bringing in other professionals to assist the parties, e.g., mental health experts, chartered business valuators, financial experts, mediators or divorce coaches. The lawyers work with these individuals in a climate of co-operation and respect, allowing the clients to gain from their knowledge and skills and help solve complex issues. This does not mean the lawyers do not advocate for their clients (they do), but they do so by working with — as opposed to against — the other side.
Lawyers who practise CFL will admit it can be challenging and exhausting, but there is nothing better than resolving a difficult case resolved through the collaborative process. If you think CFL is for you, you should discuss it with your lawyer. Not every case is well-suited for CFL, and there are advantages and disadvantages to every dispute resolution process, so speak to your lawyer before taking any decisions. Still, for most separated families, CFL is an idea whose time has come. Often referred to as the “gentle divorce,” CFL is the best process I know of to minimize the negative impact of separation and divorce on clients and their children.
Brahm D. Siegel is a senior partner at Nathens, Siegel LLP and a Certified Specialist in Family Law by the Law Society of Upper Canada. If you have a question, please email him at bsiegel@nathenssiegel.com and he will try to answer it here. His website is nathenssiegel.com.
