What is Collaborative Practice?
Collaborative practice is a modern approach to settling family law disputes without going to court.
In collaborative practice both spouses retain the service of their own lawyer and agree not to proceed with litigation during negotiation. The parties are encouraged to make goal-oriented decisions as opposed to the tactical choices typically seen in litigation.
Services from other professionals, such as financial planners and counsellors/family professionals, are often provided to the parties to facilitate the process. The parties are therefore better equipped to manage conflicts and see the “big picture.”
All professionals involved in collaborative practice must have completed collaborative practice training.
If a settlement cannot be reached, the process is terminated. The lawyers involved in the negotiation withdraw from the process and do not represent the parties in future litigation.
In short, collaborative practice is a client-centred and results-oriented process. The parties are encouraged to explore all available options, including the legal model, before they make their informed decisions regarding how the issues should be settled.
The resulting settlement is legally binding and enforceable. Because such settlements are entered into voluntarily, the default rate is very low.
The Advantages of Collaborative Practice
There are many advantages to collaborative practice. The obvious advantages to the parties are lower cost, better emotional well-being, and faster resolution.
The cost of collaborative practice is generally well below a full-blown litigation before the court. Parties feel more secure and able to negotiate in good faith because a “ceasefire” agreement is in place. When the negotiation process breaks down, the parties are faced with additional costs to retain new lawyers.
Further, clients often feel better informed and capable of making decisions compatible with long-term goals because other professional service providers are often involved.
Since collaborative practice is held in private, the parties are in control of the timetable. There is no need to wait for a court day or to miss work to attend court. Consequently, the issues in dispute are often resolved more quickly than in litigation.
What to Expect in Collaborative Practice
First, shed the mentality of winning and losing.
In collaborative practice parties negotiate based on their long-term goals rather than short-term positions.
Both parties retain their collaborative lawyer of choice as a coach. Through their lawyers the services of other collaborative professionals are hired.
Typically, a divorce finance specialist is involved to make projections for the parties regarding different settlement options. A family professional or a counsellor may be hired to assist the parties in communicating with each other while actively managing conflicts.
Your lawyer will ask you about your long-term goals based on your interests (e.g., maintaining a good relationship with the children) rather than short-term tactics (e.g., getting even with him/her).
Regarding issues in dispute, your lawyer will advise you what the substantive law is and whether other options exist. While there are outer limits as to what the parties may agree to under the law, on many issues, such as property division and access to the children, the law isn’t rigid and the parties are free to adopt mutually agreeable solutions.
Matters Unsuitable for Collaborative Practice
Collaborative practice isn’t for everyone. Certain types of cases are ill-suited to the collaborative approach.
For instance, where there’s a history of domestic violence, severe mental illness, or serious drug or alcohol addiction, the lawyers may be reluctant to recommend collaborative practice.
If you are interested in conducting your family law matter collaboratively, please call our office at 416-433-5531 to make an appointment.
