Introduction to Ontario Collaborative Divorce: Resolving Issues in a Respectful and Cooperative Manner
Collaborative Family Law is an alternative to the adversarial nature of the court process. It requires both parties to enter into the process voluntarily. They commit to resolving their issues in a respectful and cooperative manner and to avoid adversarial proceedings, with the help of their lawyers to guide them in the process.
Spouses who agree to avoid court proceedings must be willing to be open regarding the issues, and must voluntarily provide full and frank disclosure to the other party. Any negotiated settlement will be based on the assumption that the parties have acted in good faith and have provided complete and truthful information prior to settlement.
The parties’ lawyers also commit themselves to coming to a mutually agreeable resolution. The parties must agree in advance that should the collaborative process fail, neither party may use their collaborative lawyer to advance their position in court. This creates an environment conducive to negotiation and settlement.
If you are interested in using the collaborative process to resolve your family law issues, please contact our office. The lawyers at Russell Alexander Family Lawyers have Collaborative Family Law training and will happily help you achieve a resolution to your family law problems.
As part of the collaborative process, our lawyers will meet with you to determine your interests and goals and will guide you through the process of reaching an agreement with your former spouse. Once a consensus is reached, we will draft your agreement and have it signed by both parties to create a legally binding document.
Mediation? Arbitration? Collaborative Divorce? What is the Difference?
Alternative Dispute Resolution (ADR) mechanisms are an efficient and increasingly popular way to resolve some Family Law disputes without having to resort to full-blown litigation. Since they all involve settlement of issues outside the realm of the traditional justice system, they tend to be more expedient and cost-effective.
While various ADR mechanisms have unique focuses and processes, many have similar features which can make them difficult to distinguish. Here are the three most common kinds of ADR:
The mediation process features the involvement of a trained mediator who helps couples resolve their legal disputes through negotiation. Mediation tends to be an informal process: it is geared resolving issues or at least identifying common ground between the parties, and therefore narrowing down the issues that remain contentious. (And if mediation fails, then the parties are still free to proceed to traditional litigation). In Ontario it can be used in connection with only certain matters which include child support, access and custody, and equalization of net family property.
In contrast to mediation, which is voluntary, arbitration is more similar to a formal court hearing – minus all the formality. Each party is given the opportunity to tell his or her side of the story to an impartial arbitrator, who then makes a ruling that is binding on them both. Although it involves a less rigid procedure than going to court, there are still certain protocols in connection with witnesses’ testimony, and with submitting evidence and documents. Arbitration can cover only certain Family Law disputes, such as spousal or child support, custody and access to children, and division of property. It cannot cover divorce, marriage annulments, and certain administrative changes to official family status and declarations of parentage. Once an arbitration award has been issued, it can be enforced though a simplified procedure that is governed by legislation.
The underlying philosophy of the collaborative divorce process is that the parties mutually agree to completely avoid the court process, with the result being a faster, cheaper and more amicable divorce. To achieve this, the parties each sign a contract prior to the start of negotiations, agreeing to full disclosure of information and setting out the principles of the collaborative process. Their respective lawyers – who must be trained specifically in collaborative law – also agree not to press the matter to court. (And if ultimately it turns out that settlement cannot be reached, then new lawyers have to be hired). There is a focus throughout the process on co-operation, disclosure, honesty, and the best interests of children.
10 Things You Should Know About Collaborative Practice & Family Law
1. Key Elements to Collaborative Practice
Participants voluntarily and freely exchange information and pledge not to go to court. If someone decides to go to court then the participants, lawyers and other professionals such as social workers or accountants involved in the process withdrawal. The parties then start over with new lawyers.
Participants commit to respect each other and worked towards shared goals.
Other professionals can be engaged to assist the lawyers and participants such as coaches, child specialists, and financial specialists.
2. The Difference between Collaborative Practice and Mediation
Mediation involves an impartial third party who assists the negotiations and tries to help settle your case. Mediators should not give legal advice or be an advocate for either side. Participants may consult with their lawyers during or between mediation sessions.
If mediation results in an agreement, the mediator prepares a draft of the settlement terms for review and editing by both parties and their lawyers.
Collaborative Practice includes both the parties and the lawyers during the negotiation process which often helps to keep settlement as the top priority. Collaborative Practice lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation does not result in a settlement, you may choose to continue with your same lawyer when you go to court.
In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative Practice Lawyers and other professional team members are disqualified from participating when you go to court if the Collaborative process ends without reaching an agreement.
3. The Collaborative Team
A Collaborative team is the combination of professionals that are chosen to work with participants resolve their dispute. The process can also simply involve the parties and their Collaborative lawyers.
Or participants can also choose to include a neutral financial professional, divorce coaches, a child specialist and or other specialists who may also be helpful. This “Collaborative team” will provide guidance and support as problem-solvers, not as adversaries. The focus for the team should be on the interests of the participants and not positional bargaining.
4. A Different Approach
In a regular divorce case, parties often rely upon the court system and judges to resolve their disputes. Unfortunately, many people often come to view each other as adversaries, and court cases may become a battleground. The resulting conflicts take an immense toll on emotions—especially the children’s.
Collaborative Practice is by definition a non-adversarial approach. Collaborative Practice lawyers pledge in writing not to go to court. They negotiate in good faith, and work together to achieve mutual settlement outside the courts. Collaborative Practice is designed to ease the emotional strains of a breakup, and foster the well-being of children.
5. Reducing Hostility in Family Disputes and Separation
The guiding principle of Collaborative Practice is respect. This respectful tone encourages participants to show compassion, understanding, and cooperation. Collaborative professionals are trained in non-confrontational negotiation, helping keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.
6. The Nuts & Bolts of Collaborative Practice
- if you decide on a Collaborative Practice divorce, both sides hire their own Collaborative Practice lawyer;
- everyone agrees in writing not to go to court;
- you meet privately and in face-to-face talks with your lawyers;
- additional experts, such as divorce coaches and child and financial specialists, may join the process or are perhaps the first professional that you see;
- meetings conducted and designed to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children.;
- mutual problem-solving by all parties leads to the final divorce agreement.
7. The Pace of Collaborative Practice
Every family is different as is every Collaborative Practice case. Your situation and circumstances may determine how quickly your divorce process proceeds. Collaborative Practice can be more direct and efficient than a regular divorce court case. Focusing on problem-solving rather than blame and grievances may create the opportunity to strive for respectful results. Full disclosure and open communications enables participants to cover issues and concerns in a timely manner. Further, if participants are able to settle out of court, there is no wait for the multiple court dates and the associated delay which often occurs in regular court cases.
8. A Focus on the Future
Divorce and separation may represent both an ending and a beginning. Collaborative Family Law Practice helps people anticipate and include their need to move forward, and makes the future of their children a top priority. As a more respectful, dignified process, Collaborative Practice supports families’ goals for a smoother transition to the next stage of their lives.
9. A Focus on Interests, Not Positions
Collaborative Practice focuses on Interest-Based Negotiation – Also called “interest-based bargaining” or “win-win bargaining,” interest-based negotiation is a negotiation strategy in which parties collaborate to find a “win-win” solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the participants. Interests include the needs, desires, concerns, and fears important to each side. Interest-based negotiation often produces more satisfactory outcomes.
10. Further Information about Collaborative Practice
Further information about Collaborative Practice can be found by contacting a lawyer or other professionals (such as a social worker or financial planner) who have been trained in Collaborative Practice.