Separation and divorce can of course be ugly, but it does not always need to be. Yes, there are times where former partners are practically at war, and the issues between them are contentious. What happens though when a relationship simply does not work out, but the parties are amicable and are hoping for a calmer way of solving their break-up?
Collaborative Family Law may be the answer. Collaborative Family Law recognizes that while there may be disputes between former partners, those disputes do not need to lead towards hurt feelings and bad blood. It takes a different approach, where the parties and their lawyers and advisors lead with civility, and come together to make the best decisions for everyone.
While court may be necessary sometimes, it is not always a requirement of splitting up. We often speak with clients who are hesitant to even approach a family lawyer, because they do not want to ‘start a war’ with their ex over areas they might agree with each other. In those situations, Collaborative Family Law may be the right answer.
So, what is Collaborative Family Law, and how does it work? Here is Part 1 of our exploration into a different way of doing separation and divorce.
What is Collaborative Family Law?
Collaborative Family Law happens outside of court. It’s an interests-based process designed to help the parties voluntarily reach a resolution of their issues. The goal of Collaborative Family Law is for the parties to reach the decision on the outcome, rather than third parties (such as a judge) imposing the outcome on them.
The first step in Collaborative Family Law is that the two parties and their lawyers sign an agreement committing to several terms, some of which are as follows:
- The parties will try to resolve the issues outside of court through negotiation.
- The parties must provide full and frank disclosure to facilitate the negotiation.
- The process is also confidential. This helps both parties constructively generate options that are in both parties’ interests.
- The parties will communicate respectfully with each other.
- The parties and their lawyers will not threaten to go to court to extract concessions during the process.
- If the process breaks down, the parties’ lawyers cannot represent their clients in court.
This, in a way, starts to deflate the elephant in the room. While family court may be necessary for some contentious families, it can also be tiring, expensive, and highly adversarial. If you and your former partner are both on the same page about settling things in a more peaceful manner, by engaging in Collaborative Family Law you are entering into an agreement that confirms that.
While we often speak about it as a tool in separation and divorce, Collaborative Family Law has other uses as well. It can be used for negotiation of a domestic contract (marriage contract), or even a cohabitation agreement. So long as both parties are voluntarily willing to come to the table without a court process, Collaborative Family Law may be the right approach.
Does Collaborative Family Law require a lawyer?
Yes, you still each need to work with your own lawyer for Collaborative Family Law. Just like any other family law negotiation, you will each need your own independent legal counsel, who is there to protect your best interests. The key difference is the approach that those lawyers take, and that approach will look much more goal driven than in an adversarial court battle.
It is also important to note that not all family lawyers are trained and have the experience to practice Collaborative Family Law. At Pavey Law LLP, we have two family lawyers who are certified to practice Collaborative Family Law and are members of the Ontario Association of Collaborative Professionals.
Is Collaborative Family Law right for everyone?
No. There are going to be instances where Collaborative Family Law is not the right fit, for example cases where a party needs a restraining order due to domestic violence. If the parties cannot voluntarily agree to come together in a collaborative way, then one side cannot force the other to go through a collaborative process.
Collaborative Family Law requires both sides to put everything on the table voluntarily. If a separation or divorce are contentious, partners may not be willing to disclose all of their assets, and the lawyers may wind up going to battle over this. A collaborative solution requires each side to be fully transparent, and to hold nothing back.
The voluntary part of things is key. If you want a collaborative approach, but your former partner is adamant on going to court, it will not work. Either party can choose to back out of the collaborative process at any time, or if one intentionally becomes a roadblock then there is always the threat of litigation. If you wish to abandon the collaborative process and proceed with litigation, you will need to retain a new lawyer.
Final Thoughts
There may be times where a dispute means that parties are butting heads, but that is not the case every time. Taking a collaborative approach promotes an environment of respect and civility and can lead to a healthier outcome for a family moving forward.
If you think Collaborative Family Law may be the right fit for your situation, speak with one of our Collaboratively-trained Family Law lawyers. We regularly assist clients throughout Cambridge, Kitchener, and Waterloo who are looking for a more peaceful solution. Contact us today to set up a consultation.