Collaborative Family Law
What is Collaborative Family Law?
Collaborative Family Law ("CFL") is a co-operative approach to negotiating and resolving issues arising from a family separation outside of the purview of the courts. Separated spouses, with the assistance of skilled legal counsel, negotiate their issues as they see them, in a controlled and respectful environment. While the negotiations occur, the parties agree that they will not commence litigation proceedings and that, in the event they are unable to negotiate a resolution of their dispute, neither lawyer will be eligible to represent his or her client in any subsequent litigation.
In our firm, Ted Dueck and Richard Noll are both trained and experienced in dealing with family matters using the CFL approach.
The Process
The Collaborative Family Law ("CFL") process moves by managed four-way meetings, preceded by considerable preparation between the lawyer and their client as well as between the lawyers involved. In general, the following five steps have been utilized within the CFL process:
- Initial Lawyer-Client Consultation
During this first meeting, you will meet with your lawyer to discuss your goals, process options and any concerns you may have about CFL and the separation in and of itself. At this point, your lawyer will advise whether CFL would be appropriate in your situation. For example, in order for CFL to be effective, both spouses must be willing to negotiate and work towards an amicable separation agreement. Animosity or deceptive negotiations will not be accepted within the CFL process.
- Initial Contact Between Lawyers for the Separating Spouses
In the spirit of team approach necessary for the CFL process, the lawyers for the separating spouses will discuss any immediate concerns, agree to disclose information as necessary to solve these concerns, discuss expectations at the first settlement meeting, confirm which CFL Participation Agreement will be used, who will prepare it and make the arrangements for the first settlement meeting.
- Preparation for the first collaborative meeting
During your meeting with your lawyer, they will discuss with you the tasks and roles of the lawyers and spouses. Further, your lawyer will provide you with key communication tools that will enable you to better negotiate and rules to abide by at the settlement meetings.
- Collaborative meetings
At the first meeting, the parties introduce themselves to one another and discuss any concerns they may have as well as the provisions of the Participation Agreement. The parties will then decide as to what information may be shared, issues that need to be addressed are prioritized, and the schedule set for further meetings.
During the meetings, the parties will discuss all of the issues on the agenda created until each has been resolved. At the end of each meeting, the lawyers will meet with their clients to discuss the events which had occurred during the meeting and how to best proceed at the next meeting. - Create and Sign the Separation Agreement
Together, the lawyers will draft the Separation Agreement based upon the collaborative meetings and include within the draft language specifically chosen by the separating spouses. The lawyers will ensure that the agreement addresses both clients' needs, that it complies with the law and will work in practice.
Lawyers' Roles and Responsibilities
Your Collaborative Family Law ("CFL") lawyer will not only provide you with advice, but will help educate you in the CFL process and how to effectively negotiate, be a legal resource regarding what you are entitled to under the law and protect those rights during CFL meetings. In addition, your CFL lawyer will help identify the issues and concerns of both you and your spouse and work with you to find creative solutions to these problems. They will assist you and your spouse to analyze the consequences of each possible solution and any competing interests that may be involved. When emotions run high, your CFL lawyer will serve as a guardian to the integrity of the process and strive to defuse the situation.
Your CFL lawyer understands that once the CFL process has begun, court is not an option so long as CFL is pursued. Consequently, your CFL lawyer will refrain from using any adversarial techniques or tactics and favours instead cooperative and mutually respectful behaviour. It should be noted that should you wish at any time to stop the CFL process, your CFL lawyer will no longer be able to assist you in the litigation of your separation.
Advantages and Disadvantages
For those spouses who are open and willing to commit to open and honest negotiation, and full and frank disclosure, Collaborative Family Law ("CFL") provides numerous advantages. By creating a settlement together with your spouse, you will garner an agreement which will serve to meet both of your needs, some of which may not have been addressed had the matter been litigated. The CFL process is less costly with little to no animosity as would have been incurred in the resolution of the matter through court determination. Spouses will also benefit from the fact that anything discussed within the CFL meetings cannot be discussed outside thereof without the consent of both parties. Lastly, in pursuing the CFL process, it does not prevent the spouses from utilizing the court method. Rather, the spouses maintain that right. However, should they choose utilize their right to litigate, their CFL lawyer cannot be their advocate during litigation.
Not all spousal separations are appropriate for CFL. For example, should spouses not wish to compromise, or believe that the other is not trustworthy and therefore need to hide assets to protect themselves, CFL would not be effective. Further, if there are significant power imbalances between the couple, the traditional litigation, with all of its rules and sanctions, may better serve to protect the rights of the less dominant spouse. Also, while all parties involved in the CFL may work together to reach a settlement, not every collaborative effort may produce an agreement. Consequently, the time and expense that would be required to rehire a new lawyer and take the matter to court must be considered.