Collaborative process an effective alternative to adversarial divorce

  • February, 2022

Collaborative process an effective alternative to adversarial divorce

By Andrea Swabuk-Moe


When a new client comes to the firm, they rarely know precisely how they will proceed when separating from their spouse. At Hamilton Fabbro, our family lawyers take the time to learn the family’s unique circumstances and discuss different options, including consensual dispute resolution (CDR) (previously referred to as Alternative Dispute Resolution), to ensure the clients feel informed and empowered to make the best decisions.

The Collaborative process is highly cost and time effective, and it allows the clients to have control over their outcome. This column will outline the process and benefits of collaborative law.

What is collaborative law?

As the name implies, collaborative law is a process in which both clients agree to work together to come to an agreement to resolve their issues. With a collaborative process, there is no court involved. Instead, both clients and their lawyers agree that they will not pursue litigation.

An important feature of this process is the involvement of other collaborative professionals, such as a financial specialist, divorce coach or child specialist, to assist with parenting plans or financial decisions.

The end goal is to come up with a settlement that benefits the entire family rather than individual interests. As a result, the process looks quite different from other CDR options such as mediation.

How collaborative law works

Although collaborative law may appear to be only suited for amicable separations, we have seen it benefit clients in high-conflict or clients with complicated legal problems.  The team approach within the process provides support for each client and each professional supports the overall goal of finding a solution that works for the family as a whole.  The process is private, creative, cost-effective, and family focused.

Each client will retain their own collaborative lawyer, but it is important to understand that while your lawyer will represent and advocate for you, the primary focus is on a settlement that benefits everyone in the family.

Once a client and their former spouse agree to move forward with the collaborative process, clients will sign a participation agreement. This contract outlines the process and obligations of clients and their lawyers, including a commitment to respectful and constructive communication; amicable solutions that consider the best interest of the children (if applicable); and a full disclosure of assets, liabilities, and income.

After the participation agreement is signed, the process involves a series of four-way meetings between the lawyers and clients, taking a team approach to problem-solving. Before the pandemic, these meetings were generally held in person.  However, the collaborative process adapted to the in-person restrictions and now many of these meetings are conducted remotely using online platforms, such as Zoom or other teleconference and video calling tools.

Throughout the process, a client still has one-on-one meetings with their lawyer, but the clients and their lawyers meet together to discuss options, the law, and what steps need to be taken to resolve matters fully and finally. Lawyers within the collaborative process do not write adversarial letters to one another setting out positions or demands.  Difficult issues are addressed within the collaborative process but not through this form of adversarial communication.

Other collaborative professionals

One reason this approach is so effective is that it includes the option of involving other professionals who help clients reach a settlement on specific matters. For example, each client will often have a divorce coach to provide support throughout the process, which is extremely helpful when there are parenting issues. If the team needs input from the children or they want a mental health professional to check in to see how the children are coping with the separation, a child specialist can also be part of the team. The child specialist will meet with the children and then provide feedback to the clients and lawyers which can then help to formulate a parenting plan.  If parents hear from a child specialist about issues their child is dealing with, they are often more inclined to think of the child’s best interests.

Another beneficial professional is a financial specialist, such as an accountant or financial planner, who can assist the clients in making financial decisions, valuing corporate assets and assist in determining income. The financial specialist is neutral and does not advocate for either client, but rather provides impartial information or assistance to the team.

Not all families will have all types of professionals involved. The lawyers and the clients together will determine how to set up the team and which other professionals are required to support the goal of reaching an amicable settlement.

When collaborative law may not work

In most situations, the collaborative process will work — and work well. But there are a couple of non-starters. Collaborative law is not appropriate when one client is unwilling to disclose financial information, nor if there is a valid concern that one client is hiding money. In those instances, a client and their lawyer require court remedies that collaborative law cannot provide.

Collaborative law is a voluntary process, so both clients have to agree and buy into it — and so do their lawyers. One side cannot force the other to enter into the process, and the process will only work if both clients act in good faith.

One drawback is if one client wants to terminate the collaborative process, both clients have to retain new family lawyers. This is because the threat of going to court must be removed entirely for people to be comfortable and for the process to work well. It requires an investment and commitment — but the payoff is worth it.

Cost considerations

Besides the advantages listed throughout this column, one of the most significant benefits of collaborative law is the cost. At the end of the day, resolving a family dispute through the collaborative process will likely save a considerable amount in legal fees.

 

Although there may be more upfront costs because clients immediately conduct four-way meetings and may choose to hire collaborative professionals, that investment pays dividends over time, particularly when compared to the slow build of litigation. In addition, the money saved through the collaborative process can instead go towards the clients’ long-term financial goals such as saving for children’s post-secondary education or planning for retirement.

Success rate of collaborative law

The success rate of the collaborative law process is staggering. The International Academy of Collaborative Professionals (IACP) conducted a study that found that 94 per cent of all families that enter into the collaborative process resolve their matter within the process[1].

If you are facing a separation or divorce and would like to explore your options, the lawyers at Hamilton Fabbro would be glad to assist.

 

 


[1] IACP, 2015 Divorce Experience Study by Linda K. Wray.