Difference between revisions of "Collaborative Negotiation"

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==Introduction==
==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 website, 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.
The collaborative process is a non-adversarial and voluntary process where each party retains a collaboratively trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues arising from separation but also the emotional issues.  The emotional issues of separation can often be an impediment to moving forward efficiently with the legal issues.  Divorce coaches (counsellors trained in the collaborative process) often work with the couple to manage the emotions typically associated with separation and finalize a parenting plan that best meets the needs of the children. A financial neutral (also trained in the collaborative process) can assist in reviewing all financial options for the couple. If a child’s voice needs to be heard a child specialist can be retained.  This may sound like many professionals however in the collaborative process we build the team to suit the needs of the couple and family.  This team approach is more specialized and is often a cost-effective way to deal with separation (rather than just leaving it all to the lawyers).  


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 <span class="noglossary">will</span> not go to court, and sign an agreement to that effect, and mental health professionals are included in the process as necessary.
The goal of the collaborative process is to assist the couple in reaching a reasonable settlement that restructures the family in the most positive manner going forward—recognizing that families continue and need to flourish despite separation.  Parents need to be able to continue to co-parent effectively after separation.  


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 <span class="noglossary">will</span> work except for litigation. If each party isn't willing to use and embrace the collaborative process, it simply <span class="noglossary">will</span> not work.
==How do I start in the collaborative process==


==Overview==
Because it is a voluntary process both you and your spouse must agree to proceeding in this process.  Most collaborative professionals believe that it is most often a more cost-effective and timely process than litigation and consider it to be a more holistic approach to preserving families going through separation.


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 <span class="noglossary">will</span> prefer to do things.
Once you and your spouse agree to use the collaborative process, each of you must retain a collaboratively trained lawyer.  Sometimes the process starts when the couple meets with a divorce coach first and then collaborative lawyers are brought in.


===Finding a collaborative lawyer===
===Finding a collaborative professional===


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 <span class="noglossary">will</span> expressly describe themselves as collaborative lawyers or collaborative practitioners in their promotional materials. The lawyers <span class="noglossary">will</span> then explain the collaborative process to their respective clients, and <span class="noglossary">contact</span> each other to prepare a collaborative process participation agreement.
The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches go to these websites:


A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
 
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Lower Mainland)
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver],
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
* [http://nocourt.net Collaborative Association in Metro Vancouver],
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals],
* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group], and
* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)
* [http://www.nocourt.ca Collaborative Law Group of Nelson].
 
A quick [http://www.google.com/search?q=collaborative+law+bc Google search] for "<tt>collaborative law bc</tt>" should net you some additional resources, including collaborative family law lawyers in your area.


===Signing the participation agreement===
===Signing the participation agreement===


The parties and their lawyers <span class="noglossary">will</span> 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 collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement. That agreement provides that:


The participation agreement <span class="noglossary">will</span> contain a number of terms that are very important to understand. Among other things, most participation agreements require that:
* each party will not commence a court action while in the process;
* each party will make full financial disclosure;
* all communications are confidential until a written separation agreement is signed;
* neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
* a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
* the parties will make best efforts to communicate in a respectful manner.


*the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations,
==Next steps in the collaborative process==
*while the collaborative process is underway, neither party <span class="noglossary">will</span> 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.
The majority of the work in the collaborative process takes place in meetings with the collaborative professionals and the couple.  The professionals strive to identify the needs and interests of each spouse, and together with the spouses, discuss options for settlement and seek resolution of the issues. Typically the couple is very involved in the discussions and retains control over the process and the outcome. As needed, the divorce coaches and the financial neutral participate in these meetings.


===Hiring the professional advisors===
===Financial disclosure===


The parties and their lawyers <span class="noglossary">will</span> 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.
As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seeks full disclosure of all documents and information relevant to the issues between the spouses. Relevant documents often include:


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.
*statements for bank accounts, retirement savings accounts, investment accounts and all other financial assets,
 
*current statements for debts including loans, mortgages and credit cards,
===Making disclosure===
*income tax returns,
 
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
*corporate financial statements and corporate tax returns, and
*confirmation of income.
*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 <span class="noglossary">will</span> never be used in court, but <span class="noglossary">will</span> remain private and confidential among those involved in the collaborative process.
The spouses produce their documents and information to the collaborative team on the understanding that discussions and negotiations throughout the process will remain private and confidential amongst the collaborative team.


===Starting discussions===
===Exploring options for settlement===


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.  
Once financial disclosure has been made, the spouses and the collaborative lawyers (sometimes a financial neutral is involved) begin exploring options for settlement while maintaining confidentiality throughout. If necessary we obtain an opinion with respect to the current market value of real estate, shares in a business or other assets.  In the collaborative process a joint retainer for one opinion is typically sought to begin the discussions.


Discussions between the parties and their lawyers <span class="noglossary">will</span> continue until a resolution is reached with which both parties are as happy as possible. You can expect that this <span class="noglossary">will</span> be a process of mutual compromise, and that the ultimate resolution <span class="noglossary">will</span> reflect neither party's original position.  
Discussions continue until the spouses reach a resolution that meets some of the highest needs of each spouse.  Because settlement discussions are confidential, brainstorming options for settlement can be expansive. Settlements can and often are creative, depending on the needs of each spouse.


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 <span class="noglossary">will</span> all be replaced by the final agreement.
You may want to have a look at "[[Family Law Mediation#Tips for successful mediation|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.


You may want to have a look at "[[Family Law Mediation#Tips for successful mediation|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.
===Parenting plan===


===Signing the final agreement===
When there are children, the parents will often work with the divorce coaches to resolve a parenting plan.  The parents meet with the divorce coaches to create and finalize the parenting plan focusing on the best interests of the children.  If needed, a child specialist may be involved to meet with the child or children to bring back to the parents and the coaches the voice of the child or children.  While the coaches are working with the parents to finalize a parenting plan they can often help the parents to deal with any emotional issues that arise and equip the parents to co-parent in a more effective way going forward.


The terms of the settlement <span class="noglossary">will</span> be put into a formal separation agreement by one of the lawyers. The parties and the other lawyer <span class="noglossary">will</span> all be asked for comment. Changes and adjustments <span class="noglossary">will</span> be made before the separation agreement is signed.
===Reaching an agreement===


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 <span class="noglossary">will</span> 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.
The collaborative lawyers and coaches strive to assist the parties to reach a durable agreement (one that meets some of each of their highest needs) in a timely manner and without the time pressures of court. The collaborative lawyers will confirm the terms of the settlement reached in a separation agreement and attach to that agreement the parenting plan.  The collaborative process ends when the separation agreement is finalized.  


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


==The team==
==What if a resolution is not reached in the collaborative process?==
 
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 <span class="noglossary">will</span> depend on the particular circumstances of each couple. For some couples, the child specialist <span class="noglossary">will</span> 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 <span class="noglossary">advance</span> 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 <span class="noglossary">decision</span>.
Approximately 92% to 95% of all collaborative matters started result in a resolution (a separation agreement).  So it isn’t often that a resolution is not reached.  However, if that is the case, the parties must retain new lawyers and seek resolution in another process. All discussions and negotiations in the collaborative process are confidential and cannot be used in any way by a spouse in subsequent court proceedings. Despite this, there typically is a lot of learning from the collaborative process that is useful going forward.


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.
==Collaborative Divorce Pro Bono Program==


===The counsellors===
The BC Collaborative Roster Society has designed and runs a pro bono program for collaborative divorce. This is a program that provides a collaborative team and the collaborative process to a couple that meets the eligibility criteria to resolve their separation. For more information about eligibility and to apply to the pro bono, see the [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.
 
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 <span class="noglossary">will</span> 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===
 
This 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===
 
This 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.


<!---HIDDEN
<!---HIDDEN
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* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]
* [http://www.nocourt.ca Collaborative Law Group of Nelson]
* [http://nocourt.net/ Collaborative Association in Metro Vancouver]


===Downloads===
===Downloads===

Revision as of 01:21, 21 May 2019

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Resolving Problems out of Court
 · Collaborative Negotiation

 · Mediation

 · Arbitration

 · Parenting Coordination
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
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Previously: Sandy Thomson and Taryn Moore
Read: Past contributors
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Clicklaw has more resources like this website from the BC Ministry of Justice on Collaborative Law.


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Legal Aid BC's
Family Law in BC website
has more information on
collaborative family lawyers.

In the collaborative process, 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 collaborative process is a non-adversarial and voluntary process where each party retains a collaboratively trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues arising from separation but also the emotional issues. The emotional issues of separation can often be an impediment to moving forward efficiently with the legal issues. Divorce coaches (counsellors trained in the collaborative process) often work with the couple to manage the emotions typically associated with separation and finalize a parenting plan that best meets the needs of the children. A financial neutral (also trained in the collaborative process) can assist in reviewing all financial options for the couple. If a child’s voice needs to be heard a child specialist can be retained. This may sound like many professionals however in the collaborative process we build the team to suit the needs of the couple and family. This team approach is more specialized and is often a cost-effective way to deal with separation (rather than just leaving it all to the lawyers).

The goal of the collaborative process is to assist the couple in reaching a reasonable settlement that restructures the family in the most positive manner going forward—recognizing that families continue and need to flourish despite separation. Parents need to be able to continue to co-parent effectively after separation.

How do I start in the collaborative process

Because it is a voluntary process both you and your spouse must agree to proceeding in this process. Most collaborative professionals believe that it is most often a more cost-effective and timely process than litigation and consider it to be a more holistic approach to preserving families going through separation.

Once you and your spouse agree to use the collaborative process, each of you must retain a collaboratively trained lawyer. Sometimes the process starts when the couple meets with a divorce coach first and then collaborative lawyers are brought in.

Finding a collaborative professional

The first step in the process is to find and meet with a collaborative lawyer or divorce coach. To find collaborative lawyers and divorce coaches go to these websites:

Signing the participation agreement

The collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement. That agreement provides that:

  • each party will not commence a court action while in the process;
  • each party will make full financial disclosure;
  • all communications are confidential until a written separation agreement is signed;
  • neither of the collaborative lawyers can represent the parties in subsequent contested court proceedings;
  • a lawyer must terminate the process if his or her client refuses to provide the financial disclosure requested; and
  • the parties will make best efforts to communicate in a respectful manner.

Next steps in the collaborative process

The majority of the work in the collaborative process takes place in meetings with the collaborative professionals and the couple. The professionals strive to identify the needs and interests of each spouse, and together with the spouses, discuss options for settlement and seek resolution of the issues. Typically the couple is very involved in the discussions and retains control over the process and the outcome. As needed, the divorce coaches and the financial neutral participate in these meetings.

Financial disclosure

As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seeks full disclosure of all documents and information relevant to the issues between the spouses. Relevant documents often include:

  • statements for bank accounts, retirement savings accounts, investment accounts and all other financial assets,
  • current statements for debts including loans, mortgages and credit cards,
  • income tax returns,
  • corporate financial statements and corporate tax returns, and
  • confirmation of income.

The spouses produce their documents and information to the collaborative team on the understanding that discussions and negotiations throughout the process will remain private and confidential amongst the collaborative team.

Exploring options for settlement

Once financial disclosure has been made, the spouses and the collaborative lawyers (sometimes a financial neutral is involved) begin exploring options for settlement while maintaining confidentiality throughout. If necessary we obtain an opinion with respect to the current market value of real estate, shares in a business or other assets. In the collaborative process a joint retainer for one opinion is typically sought to begin the discussions.

Discussions continue until the spouses reach a resolution that meets some of the highest needs of each spouse. Because settlement discussions are confidential, brainstorming options for settlement can be expansive. Settlements can and often are creative, depending on the needs of each spouse.

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.

Parenting plan

When there are children, the parents will often work with the divorce coaches to resolve a parenting plan. The parents meet with the divorce coaches to create and finalize the parenting plan focusing on the best interests of the children. If needed, a child specialist may be involved to meet with the child or children to bring back to the parents and the coaches the voice of the child or children. While the coaches are working with the parents to finalize a parenting plan they can often help the parents to deal with any emotional issues that arise and equip the parents to co-parent in a more effective way going forward.

Reaching an agreement

The collaborative lawyers and coaches strive to assist the parties to reach a durable agreement (one that meets some of each of their highest needs) in a timely manner and without the time pressures of court. The collaborative lawyers will confirm the terms of the settlement reached in a separation agreement and attach to that agreement the parenting plan. The collaborative process ends when the separation agreement is finalized.

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

What if a resolution is not reached in the collaborative process?

Approximately 92% to 95% of all collaborative matters started result in a resolution (a separation agreement). So it isn’t often that a resolution is not reached. However, if that is the case, the parties must retain new lawyers and seek resolution in another process. All discussions and negotiations in the collaborative process are confidential and cannot be used in any way by a spouse in subsequent court proceedings. Despite this, there typically is a lot of learning from the collaborative process that is useful going forward.

Collaborative Divorce Pro Bono Program

The BC Collaborative Roster Society has designed and runs a pro bono program for collaborative divorce. This is a program that provides a collaborative team and the collaborative process to a couple that meets the eligibility criteria to resolve their separation. For more information about eligibility and to apply to the pro bono, see the BC Collaborative Roster Society website.


Resources and links

Legislation

Links

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.


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