Collaborative Negotiation

In collaborative settlement processes, the parties, their lawyers, and their counsellors work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship, and consult experts such as child specialists and financial specialists as the need arises. The collaborative process is meant to address both the legal and the emotional consequences of the breakdown of a relationship.

This section provides a provides a brief introduction to collaborative settlement processes, a step-by-step overview of what happens, and a description of the roles played by each of the team members.

Introduction

The breakdown of a relationship is an extraordinarily difficult experience for everyone involved. Contrary to the impression you might form from much of the rest of this resource, a couple's legal difficulties are only one part of the whole experience of ending a long-term relationship. The purpose shared by all collaborative processes is to provide a non-adversarial space for the parties to resolve their issues and emerge, at the end of the process, as emotionally- and psychologically-whole people.

Litigation, which used to be the primary mechanism for resolving family law disputes, is adversarial by nature. Rather than improving things, it usually aggravates the emotional difficulties couples face when their relationship breaks down, throwing gasoline rather than water on the fire. In collaborative processes, on the other hand, the parties agree that they will not go to court, and sign an agreement to that effect. Mental health professionals are included in the process as necessary.

Of course, not every couple is suited to a collaborative approach. This process requires honesty and good faith, both to oneself and to others. Sometimes the breakdown of a relationship is so full of anger and bitterness that no approach will work except for litigation. If each party isn't willing to use and embrace the collaborative process, it simply will not work.

Overview

The following discussion takes a general look at collaborative settlement processes. Since collaborative approaches are very much tailored to the unique circumstances of each couple, their preferences and those of their lawyers, you should read what follows with a grain of salt. This description may not represent how you or your collaborative lawyer will prefer to do things.

Finding a collaborative lawyer

The first step is for each spouse to find and hire a lawyer. You should look for a lawyer experienced in collaborative law, or, at a bare minimum, one who is open to the idea; most lawyers who practise collaborative law will expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers will then explain the collaborative process to their respective clients, and contact each other to prepare a collaborative process participation agreement.

A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:

• Collaborative Divorce Vancouver,
• Collaborative Association in Metro Vancouver,
• Victoria's Collaborative Family Separation Professionals,
• Okanagan Collaborative Family Law Group, and
• Collaborative Law Group of Nelson.

A quick Google search for "collaborative law bc" should net you some additional resources, including collaborative family law lawyers in your area.

Signing the participation agreement

The parties and their lawyers will then sign the participation agreement that commits them to working together, using non-adversarial problem-solving techniques and cooperative negotiation strategies, to reach a fair settlement without going to court. You are not in a collaborative process unless you and your lawyer have signed a participation agreement.

The participation agreement will contain a number of terms that are very important to understand. Among other things, most participation agreements require that:

• the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
• while the collaborative process is underway, neither party will start proceedings in court,
• if litigation starts, both lawyers must withdraw and cannot continue to represent their clients,
• a lawyer must end the collaborative process if their client withholds or misrepresents information, and
• all communications generated during the process are to be kept strictly confidential.

Most participation agreements also say that there is no settlement until a separation agreement has been signed. This is to make sure that everyone is committed to the settlement and prepared to be bound by its terms.

Hiring the professional advisors

The parties and their lawyers will then start talking about whether any other help is likely to be needed, such as from counsellors or divorce coaches, child specialists (if there are children involved), or financial advisors (if there are complex financial issues). Child specialists and financial advisors are neutral in their approach and are not hired to represent or advocate for either party. Rather, their role is to help the process along by providing objective information, opinions and options about the subjects at issue.

Where the legal and emotional issues are straightforward, it's possible that no other professionals need to be hired. If something comes up during the process which suggests that it would be helpful to recruit a new team member, the professional can be hired then.

Making disclosure

The team then begins the process of making disclosure of all documents and information relevant to the issues between the parties. The collaborative process is not a poker game, with each spouse bluffing the other and trying to take advantage; this process is transparent and requires absolute and unswerving honesty. Relevant documents often include:

• current and historic statements for bank accounts, retirement savings accounts and investment accounts,
• current statements for loans, mortgages and credit cards,
• tax returns,
• corporate financial statements and corporate tax returns, and
• confirmation of income.

The parties produce their documents and information to each other on the understanding that the information (except for certain legal documents such as financial statements) and the content of the negotiations will never be used in court, but will remain private and confidential among those involved in the collaborative process.

Starting discussions

Once full disclosure has been made, the parties then begin to talk about what their personal interests and expectations are, and about what potential settlements might look like. This can be a short process or a long process, depending on the complexity of the emotional issues and the distance between the outcomes each party hopes to achieve. It may be necessary to delay things to get financial advice or for a property or business to be valued, to get some counselling, or to get an opinion from the child specialist.

Discussions between the parties and their lawyers will continue until a resolution is reached with which both parties are as happy as possible. You can expect that this will be a process of mutual compromise, and that the ultimate resolution will reflect neither party's original position.

Along the way, depending on the nature of the issues, one or more temporary agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap solutions intended to deal with problems like the sale of the family home, the parties' time with the children over holidays, and so forth. These interim agreements will all be replaced by the final agreement.

You may want to have a look at Tips for successful mediation in the section on Family Law Mediation in this chapter. It has information about communication skills that can be helpful during the negotiation process.

Signing the final agreement

The terms of the settlement will be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer will all be asked for comment. Changes and adjustments will be made before the separation agreement is signed.

The collaborative process normally ends with the signing of the final agreement. However, until and unless the participation agreement is cancelled or set aside, the lawyers will remain bound by the terms of the agreement and cannot start a court proceeding on things covered by the separation agreement, even to enforce the agreement.

Read the Separation Agreements section in the Family Agreements chapter for a discussion about separation agreements and their effect.

The team

The collaborative team includes the parties' lawyers, who are family law lawyers with special training in collaborative processes. It may also include mental health professionals, usually psychologists or registered clinical counsellors, who work as the parties' divorce coaches. Where appropriate, a financial specialist and a child specialist may also be part of the team. All team members work cooperatively with each other and the parties, and sometimes the parties' children.

The degree to which each of these professionals may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become the key team member, for others it may be their divorce coaches. A financial specialist may be unnecessary when the financial issues are straightforward, but when they are particularly complicated, the financial specialist may be critical to the success of the collaborative process.

The lawyers

The role of the lawyers in the collaborative process is to advance the needs and protect the interests of their respective clients. The lawyers advise their clients on their legal rights and obligations, and provide them with information about the law, and the probable long- and short-term results of any particular decision.

However, in the collaborative approach to dispute resolution, the lawyers are also part of a team that is collectively dedicated to finding a comprehensive settlement. As a result, the parties' lawyers can be expected to behave in a much more transparent manner and work in a manner that is geared towards both parties' success.

The counsellors

The divorce coaches are psychologists and registered clinical counsellors, and are useful whether the parties are married or not. (Frankly divorce coach is a rather inaccurate name for these team members.) They help guide their clients through the emotional turbulence of the breakdown of their relationship, and assist each party to maintain a relatively objective view of the situation. They may also help their clients develop their views on the issues and help them develop more effective communication strategies.

The divorce coaches will talk to each other and to the lawyers during the collaborative process, and share their respective clients' experiences and concerns. The divorce coaches may also work together, sometimes in joint sessions with the parties, to develop strategies and solutions for the benefit of everyone.

The financial advisor

The financial advisor is a neutral party in the process, someone without any loyalty to either party, who is able to look at things objectively and impartially. Their job is to present options to help the parties deal with the financial aspects of their relationship and their short- and long-term needs.

The child specialist

The child specialist is another neutral party. Their job is to represent the interests of the children, without any duty of loyalty to either parent. While all of the team members are of course concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, to help the parties develop a proper parenting plan, and to identify and address issues regarding the children's future care.

Resources and links

Legislation

• Family Law Act

Links

• BC Collaborative Roster Society
• Collaborative Divorce Vancouver
• Collaborative Association in Metro Vancouver
• Victoria's Collaborative Family Law Group
• Okanagan Collaborative Family Law Group
• Collaborative Law Group of Nelson

Downloads

A sample collaborative settlement process participation agreement is available for download: Participation Agreement (Sample) PDF

In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.

This sample document is just a generic reference. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation. It may not resemble the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Sandy Thomson and Taryn Moore, August 1, 2016.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.