Alternatives to Court: The Collaborative Process - LawNow Magazine

Alternatives to Court: The Collaborative Process

Family Law ColumnJohn-Paul Boyd explained why people might want to find an alternative to court to reach a resolution about their family law disputes in the November/December 2018 issue of LawNow.

One alternative to court is the Collaborative process.  Many processes, such a negotiation or mediation, can be “collaborative”, meaning cooperative or amicable.  However, here I am writing about the big “C”, Collaborative Divorce process.

In this process, the people involved in a family dispute sign an agreement to be forthright and transparent in providing relevant information, negotiating in good faith, and to not go to court.  Each person has a lawyer who is trained and registered in the Collaborative process.  Other specially trained professionals, such as financial and mental health specialists, may also join the team to help the couple find solutions to their disputes.  The process, unlike court, is private and confidential.

The process can feel slow at the start.  The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person.  However, once that foundation is built, solutions can come quickly. Through a series of meetings, the separating couple and their lawyers identify what is most important to them and explore options to satisfy their interests.  This is often referred to as interest-based negotiations.  The goal is to find solutions that work for everyone.  It allows a separated couple to come up with creative solutions that work for them and their children.  The process works because everyone is playing by the same ground rules.

If the separated couple needs more information about the value of a company or one person’s income in order to set child support, they can jointly retain a neutral financial specialist who will provide an objective analysis to both of them, and their lawyers.  If the separated couple needs more information about how their actions might affect their children, or what decision might be in their child’s best interests, they can jointly engage a child specialist who can educate them or provide their professional opinion.  If one, or both, people are having a hard time moving forward or processing the separation, they can hire a divorce coach to give them the best tools to manage stress, communicate with their former partner, and fully participate in the process.

The lawyers continue to have the same professional obligations they would have to any family law client such as to advise on the law and provide opinions of likely outcomes.  Each lawyer owes a duty to their own client and is not neutral.  Once an agreement is reached, the lawyers will draft a legally binding agreement and provide independent legal advice to their own client, separate and apart from the other person.  Any necessary court documents to finalize the divorce or separation will be submitted with the consent of both parties.

Many people have found the Collaborative process very satisfying for resolving family disputes.

If the separating couple is not able to reach an agreement, either one can withdraw from the process.  In that case, each person would need to find a new lawyer.  The discussions that took place during settlement meeting are without prejudice and cannot be repeated, or relied on, in court.

A Collaborative process is not suitable for everyone.  Some disputes are relatively simple and a separating couple may be able to reach an agreement on their own, so that all they need from a lawyer is independent legal advice.  Or, a separating couple might be well-served by a mediator.  In these cases, the Collaborative process may be more than what is required to reach an agreement.

On the other hand, the Collaborative process may not be suitable where one, or both, people are not willing to negotiate in good faith or to be open and honest about their financial situation.  In these cases, a court application might be necessary.  Where there is a power imbalance, such as in cases of family violence, or where one person has a mental health concern that prevents them from fully participating, it may not be appropriate to use a Collaborative process.  Lawyers who are registered in practice in this area are trained to screen clients for their suitability for the process.

The Collaborative process is sometimes criticized as being slow and expensive.  It can be expensive relative to mediation or a quickly negotiated settlement.  However, when compared to a full litigation, it will usually be more cost effective and the outcome will be more satisfying for everyone involved.

The process can feel slow at the start.  The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person.  However, once that foundation is built, solutions can come quickly.  If an immediate remedy is required, or if one person is intentionally delaying, the Collaborative process may not be the best choice.

For more information on the Collaborative process, or to find a registered professional in Alberta, visit www.collaborativepractice.ca and for the Edmonton Association, visit www.divorceseparation.ca.

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


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