The goal of collaborative family law (CFL) is to allow parties, in the midst of a divorce or separation, to work collaboratively with each other, their lawyers, and other third-party specialists to reach a mutually acceptable resolution of the issues stemming from the breakdown of their marriage.
The resolutions are then incorporated into a valid and binding agreement.
CFL aims to avoid the adversarial and hostile nature of the litigation process and places all final decision-making authority in the hands of the affected parties who, realistically, are in the best possible position to make determinations regarding their own best interests as well as those of their children.
Collaborative family law is an important part of our practice here at Feldstein Family Law Group P.C. For well over 20 years, we have represented our clients’ interests to the fullest extent of our ability, helping them find mutually beneficial resolutions to their most challenging family law matters. If you are interested in finding out more about your particular situation, we welcome you to call an Ontario collaborative family law lawyer at our offices for a free consultation. Or, you can continue reading to gather helpful information on collaborative family law as a whole.
Call (905) 581-7222 today to get your questions answers and concerns addressed.
History of Collaborative Family Law
In the early 1990s. a family lawyer named Stu Webb from Minneapolis was becoming increasingly dissatisfied with the traditional adversarial litigation method. He was especially bothered by the distress it was causing his clients and the excessive costs associated therewith. Due to these frustrations, he developed a form of alternative dispute resolution entitled Collaborative Practice, which he began employing on January 01, 1990. Soon thereafter, and for reasons of efficacy, Webb began to search out other lawyers who would be willing to work with him on a case-by-case basis. A requirement of said agreement between lawyers necessitated that they sign a written contract to withdraw from the file should the collaborative practice fail.
Stu Webb also founded the Collaborative Family Institute which initially had only 4 members, then 9, and currently there are more than 50 members in the Minneapolis area. The institute offers training sessions, support to members, and sends out information on collaborative practice as well as membership lists to prospective clients.
Interest in this new form of alternative dispute resolution was sparked almost instantly and it is now prevalent in both Canada and the United States of America.
What Is Collaborative Family Law?
Collaborative family law provides a viable alternative to litigation when two spouses decide to separate and/or divorce. This form of dispute resolution is premised on honesty, integrity, and respect between parties and requires that said parties work collaboratively with each other, their lawyers, and other third party-specialists to resolve the issues stemming from the breakdown of their relationship or marriage.
Once the parties decide that they would like to avoid the costly and time-inefficient litigation process and instead engage in collaborative negotiations, they must come together and sign an agreement stipulating that collaborative family law is the method of resolution selected for their case. It is incredibly important that both you and your spouse select a lawyer who has completed the requisite training in collaborative family law so that the chances of engaging in meaningful and successful discussions are optimized. Collaborative family law requires that lawyers possess certain skills which will aid in guiding negotiations and managing conflict. These are not skills that one may acquire in law school or through practice; rather they are taught and learned in special training courses.
Through the initial agreement the parties affirm that they will not go to court nor threaten to go to court to resolve the issues. This affirmation is necessary because without the threat of court, costly litigation and, in some cases, aggressive cross-examination looming over the heads of the parties, they can be as open and honest as possible. Moreover, if the collaborative negotiations prove to be unsuccessful, and the parties do need to go to court, they can be comforted by the fact that any notes taken during the meetings and anything said in the discussions are generally not admissible at trial unless the parties stipulate otherwise. Moreover, the collaborative lawyers and other members of their firms will no longer able to act on behalf of the client. These exclusions provide additional security for the parties and reinforce the fact that they may be as open as necessary and make any statements that would allow them to best communicate their feelings, wishes, and desires to the other party.
Once the agreement is signed, the parties can schedule their first four-way meeting. Collaborative negotiations only take place during four-way meetings. Disputes may be resolved in one meeting, but normally it takes up to three to five for the parties to be satisfied and for all the issues to be determined and incorporated into a written agreement that is then signed by the parties.
During the four-way meetings parties can decide on and make arrangements for the custody of and access to their children (if applicable), the division of their property, and support (both child and spousal).
All meetings are client-driven as the parties determine the date, location, and time of the meetings as well as which issues need to be discussed and in what order. The parties make all decisions and are encouraged to simultaneously discuss their feelings.
The collaborative lawyers act as support or coaches offering advice to their clients when any legal issues arise. Moreover, they ensure that the process stays balanced, positive, and productive as the parties are guided towards the best possible settlement which maintains and promotes the spouses’ and children’s rights.
The key in collaborative law is to remove the parties as much as possible from the adversarial process and encourage at all times that they work together as opposed to against one another.
Communication Guidelines for the Collaborative Process
The following are the “Communication Guidelines” published by the Ontario Collaborative Law Federation (OCLF) to be used by lawyers and clients during four-way meetings as rules for behavior:
- Attack the problem and concerns at hand. Do not attack each other.
- Avoid positions. Instead, express yourself in terms of needs or interests and the outcomes you would like to realize.
- Work for what you believe is the most constructive and acceptable agreement for both you and your family.
During team meetings (both lawyers and both clients will be present) remember
- Be respectful of others.
- Use each other’s first name and avoid “he” or “she”.
- Do not interrupt when the other client or his or her lawyer is speaking. You, also, will have a full and equal opportunity to speak on every issue presented for discussion.
- Do not use language that blames or finds fault with the other client. Use non-inflammatory or neutral words.
- Avoid using the terms “fair” and “unfair.” Instead, use words like “acceptable,” “workable,” “agreeable,” and their converses, “unacceptable”, “unworkable”, “not agreeable.”
Speak for yourself. Make “I” statements, not “you”
- State what you observe. (For example, “I noticed that twice this month times that were scheduled for the children to be with you simply did not happen.”)
- State how you feel about what you observe. (For example, “I feel worried and unhappy about this.”)
- State what you think about what you observe. (For example, “I think it is bad for the children to have scheduled time with you that does not happen.”)
- State what you would like to do about what you observe. (For example, “I want you to propose a schedule that could be put into place for visits that would not result in the children being disappointed in that way.”)
Practice active listening.
- Listen fully while the other person speaks; avoid planning your reply until the speaker has finished.
- Try to understand what the other is saying without being judgmental about the person or the message.
- Ask for more information on any points that aren’t completely clear to you.
- Check out how accurately you understand what the speaker said by restating your understanding in different words.
- Keep doing these steps until the speaker agrees that you have fully understood what was said.
- Remember, you can say “I understand” without meaning “I agree.”
- If you have a complaint, raise it as your concern and follow it up with a constructive suggestion as to how it might be resolved.
- If something is not working for you, tell your lawyer so it can be addressed.
- Talk with your lawyer about anything you do not understand. Your lawyer can clarify issues for you.
- Be willing to commit the time required to meet regularly. Be prepared for each meeting.
- Be patient – delays in the process can happen notwithstanding that everyone is acting in good faith.
Make a Commitment to Frank & Full Disclosure
A mandatory requirement of collaborative law is that the parties fully and frankly disclose all relevant information. There must be a commitment made by both parties to be truthful. If one of the lawyers discovers that his or her client is being deceitful and withholding relevant information or misrepresenting information, both lawyers must withdraw from the case and the parties must go to court. When this occurs the collaborative lawyers (as well as other members of their firm) are prohibited from representing the parties in court. Therefore, they must go out and seek other lawyers which translates into more time and money wasted. If you do choose to engage in collaborative family law for dispute resolution it is obviously in your best interest to act truthfully, respectfully and in good faith so to avoid going to court.
Is Collaborative Family Law Right for Me?
Collaborative family law is not for every separating or divorcing couple. If marriage breakdown occurs as a result of adultery or abuse, it may be very difficult for the parties to sit down together and collaboratively come up with solutions to the issues identified. There will often be feelings of animosity, fear, or hostility between the two individuals which run counter to the tenets of collaborative family law. If you lack confidence in the ability of your spouse to be honest, then collaborative family law is not the right choice for you.
You should, however, consider collaborative family law if any of the following apply:
- You would like to resolve the issues in a civilized manner;
- You want to protect your children and yourself from the harm associated with litigation;
- You would like to remain amicable with your spouse leaving open the possibility of achieving a friendship with him or her as well as maintaining the friendships of all those connected to you and your spouse through your social circle;
- You would like to take control of the decision-making in your situation as opposed to handing it over to a neutral third-party; and
- You would like to avoid the excess costs and time associated with litigation.
You should also be aware of the fact that engaging in collaborative family law is completely voluntary and requires that both parties agree to participate. It is absolutely impossible for one spouse to force another to opt for collaborative family law as the method of dispute resolution for their case.
Third Party Specialists
It was mentioned previously that during the four-way meetings, besides lawyers and clients, other third-party specialists are permitted to participate. These third-party specialists are brought in to provide you and your spouse with additional information as to what arrangements should be made, and agreed to, to best suit your particular situation.
The following are some examples of third parties that can prove to be incredibly helpful during collaborative negotiations:
- Financial Specialists: Help the parties understand and organize their financial information addressing any immediate as well as future concerns or needs of the parties and their children. They can also help value and divide pensions, investments, and other assets.
- Child Specialists/Parenting Coaches: Help the parents devise a parenting plan that is in the best interests of the children. They can interview the children, ascertain their views, preferences and understanding of the situation. and then advocate on their behalf during the four-way meetings. This allows the voice of the children and their interests to be consistently present and considered during the process.
The Collaborative Law Process
Find a Skilled Lawyer
When you and your spouse realize that your marriage has broken down and there is no possibility of reconciliation, there are a lot of decisions with which you will both be faced. Therefore, the first thing to do would be to retain a lawyer. Once you have located a lawyer, it is his or her responsibility to discuss all the various options that are available to you depending on the facts of your case. In some cases, litigation might be inescapable; however, in most, alternative dispute resolution is an attractive alternative. Therefore, if you and your spouse are still amicable (and would like to remain so) and would like to control the process and have primary decision-making abilities with regards to division of assets, custody and access, and support, then you should choose to engage in collaborative family Law. Recall that the decision to engage in collaborative family law must be voluntary and consensual therefore you must both select this form of dispute resolution prior to commencing.
Once you have decided that you would like to resolve your issues through collaborative family law, you should both undergo a series of one-way meetings with your respective lawyers to discuss and understand what the process entails and what you can expect. Furthermore, it is during this process that all necessary and relevant information is gathered, i.e. financial. Both your lawyer and your spouse’s lawyer will then set a date for the first four-way meeting.
Four-way meetings occur between the two spouses, their lawyers, and any other third-party specialist whose services may be enlisted. This is the method used by collaborative family law to allow parties to attempt to come to a resolution on all the issues stemming from the breakdown of their marriage.
The first four-way meeting entails introducing the parties to the concept of collaborative family law and ensuring that they fully understand the process. The lawyers, at this time, will endeavor to make known to the parties that they are making a commitment to collaboratively resolve their issues and work out an agreement without going to court. Once this is explained and understood the parties will sign a Participation Agreement. Click here to view an example of a Participation Agreement, as provided by the Ontario Collaborative Law Federation. Bear in mind that Participation Agreements can be customized to best suit each particular case and the circumstances.
Once the Participation Agreement is understood and signed, the lawyers will encourage you and your spouse to discuss your objectives and reasons for selecting collaborative family law as the method of dispute resolution for your case. You and your spouse will also collaborate on the issues to be resolved and devise the agenda for each four-way meeting. At this time, you may also want to discuss how financial information will be shared.
All subsequent four-way meetings will deal with resolving the issues identified while attempting to address any concerns or priorities either you or your spouse may have. It is during these four-way meetings that third-party specialists, such as financial or parenting specialists, may be incorporated to aid in reaching determinations regarding your finances or division of assets, as well as the custody and access of your children or their support.
Written Document / Separation Agreement
Once all issues have been discussed and final determinations have been reached, a written document or a separation agreement will be drafted. This agreement will incorporate all the decisions made and in the final four-way meeting it will be signed thus making it enforceable. Also, during the final four-way meeting both lawyers will discuss and explain any further steps that must be taken in order to implement the agreement.
All that is left to be done is for you and your spouse to go out and begin abiding by the agreement which will be beneficial to all those affected, i.e. you and especially your children.
Make the Right Choice for You & Your Family
To conclude, collaborative family law is a method of alternative dispute resolution that has become increasingly popular since its inception in the 1990s. It provides parties in the midst of a divorce or separation with a quicker and more efficient solution to the issues that need to be determined which can be incorporated into a written agreement. The agreement can then be easily amended to account for any changes in the circumstances of the parties.
Collaborative family law allows parties to avoid court and the excessive financial costs associated therewith. Moreover, the emotional and psychological costs that are often tied to bitter divorce battles are reduced, if not eliminated, as the parties are encouraged to work together as a team and resolve the issues based on their situation, needs, and interests, as well as those of the children.
For more information, including answers to your specific questions, call an Ontario collaborative lawyer at (905) 581-7222. We stand ready to help you.