Collaborative Law
Collaborative Family Practice
Collaborative Practitioners help you with the transition from being married to being separated and divorced and resolving all issues by using these principles:
- They do not go to court. The time, anguish, complex paperwork and expense of that step is saved.
- They have you sign a Participation Agreement. That Agreement is a contract signed by both clients and both lawyers, agreeing among other terms, not to go to court. Family and Financial Professionals, who are or become part of the team, also sign the Agreement.
- Immediate settlement meetings designed to get the best possible result, are the core of the process.
- At the meetings, clients control the process, with the professionals at their side to help negotiations be respectful, practical and imaginative.
- Problems are solved constructively. The lawyers, family and financial professionals are trained to manage conflict.
- All bargaining is done in good faith.
- Full disclosure of all relevant information, including financial information, is obtained.
- Solutions to help parents co-operate in their children’s best interests are promoted.
If settlement is not achieved and the parties desire to proceed to court, the lawyers, financial and family professionals must withdraw.
Collaboration vs. Litigation
Litigation Model
Each party must be represented by a lawyer who has had specialized training in the collaborative process. |
The lawyers and clients each sign a Participation Agreement that requires that they adhere to collaborative principles. |
The parties, their lawyers and other collaborative professionals work as a cooperative team to reach the best possible resolution. |
The collaborative principles stress that settlement discussions must take place in an atmosphere in which there is mutual respect. The collaborative lawyer’s training assists in maintaining this atmosphere. |
Collaborative professionals such as accountants, financial planners, child specialists or coaches may be retained by the parties jointly to assist them in reaching a resolution. These collaborative professionals must also have received specialized training. |
The parties conduct the settlement discussions. Their lawyers’ role is to provide legal advice to their client and to generally support and assist the client through the process. They are free to craft a settlement which meets their particular requirements, even if it is not something that a court would or must do. |
The parties are in control of the process. They can take as much, or as little, time as they need to reach a resolution. |
Parties cooperate fully in obtaining and sharing all financial and other important information. |
The process reduces conflict and maintains good faith, which increases the likelihood that parents can cooperate in the parenting of their children and reach solutions which promote their children’s best interests. |
There are no court papers to prepare and no court hearings. |
If settlement is not reached, the lawyers must withdraw and neither the lawyers nor any member of their respective firms may represent the clients in subsequent litigation. |
Litigation Model
Each party is typically represented by a lawyer. |
The goals and expectations of each lawyer and each client, in terms of the process and settlement, may be very different. One side may be more committed to settlement and the other to litigation, which can make resolution difficult or perhaps unfair. |
The parties and their lawyers are opposed in interest; the primary goal is to obtain the maximum result possible, often to the detriment of their long term relationships with their children, former spouse and his/her extended family. |
The nature of the litigation model may result in each side making exaggerated and derogatory allegations against the other party, which does not solve their problems and may exacerbate them. |
Professionals (mental health or financial) can be retained by one side to advance their case; occasionally they are jointly retained. |
The lawyer’s role is to provide legal advice. Generally the lawyer will control the settlement negotiations, although he or she will have instructions for settlement from his/her client. In this model, lawyers are conscious of crafting a settlement that reflects legal principles. |
Although most parties who adopt the litigation model attempt settlement, the court has more influence over the decision making process. The court’s schedule and rules significantly influence the speed with which a resolution can take place. |
The rules of court require that parties make full financial disclosure, yet these rules can be difficult and expensive to enforce. |
The process can exacerbate an existing conflict and can destroy what goodwill might have previously existed between parties. |
If parties opt to proceed to court there is typically a substantial amount of paperwork that must be completed. There may be several court hearings, in which the party and his/her lawyer must remain at court for several hours to ultimately conduct a brief appearance in front of a judge. |
The lawyers may represent clients throughout all aspects of the process. |
Links
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