Difference between revisions of "Collaborative Negotiation"
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Collaborative negotiation is a cooperative, voluntary process in which each party retains a collaboratively-trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues but also the emotional issues arising from the end of the parties' relationship. (Not surprisingly, the emotional issues following separation can often be a barrier to resolving the legal issues.) The other people who might be involved in a collaborative process include: | Collaborative negotiation is a cooperative, voluntary process in which each party retains a collaboratively-trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues but also the emotional issues arising from the end of the parties' relationship. (Not surprisingly, the emotional issues following separation can often be a barrier to resolving the legal issues.) The other people who might be involved in a collaborative process include: | ||
− | + | *'''Divorce coaches:''' counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children. | |
− | + | *'''Financial specialists:''' neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. | |
− | + | *'''Child specialists:''' neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard and make recommendations about the parenting plan that best meets their needs. | |
This sounds like an awful lot of professionals, however, in collaborative processes the lawyers and their clients work together to build the team that suits their needs. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation rather than just leaving it all to the lawyers. | This sounds like an awful lot of professionals, however, in collaborative processes the lawyers and their clients work together to build the team that suits their needs. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation rather than just leaving it all to the lawyers. |
Revision as of 19:43, 27 March 2020
In collaborative processes, the parties and their lawyers work together as a team to find a resolution of the issues arising from the breakdown of the parties' relationship. The parties may also work with psychologists or clinical counsellors, and may consult experts such as child specialists and financial specialists during the process as the need arises. Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, and is one of the best possible ways of resolving family law disputes.
This section provides a brief introduction to collaborative negotiation, a step-by-step overview of what happens in collaborative processes, and resources for learning more and getting started.
Contents
Introduction
Collaborative negotiation is a cooperative, voluntary process in which each party retains a collaboratively-trained lawyer and other collaborative professionals, as needed, to resolve not just the legal issues but also the emotional issues arising from the end of the parties' relationship. (Not surprisingly, the emotional issues following separation can often be a barrier to resolving the legal issues.) The other people who might be involved in a collaborative process include:
- Divorce coaches: counsellors trained in collaborative negotiation who may work with each party to manage the emotions typically associated with separation and help them finalize a parenting plan that best meets the needs of the children.
- Financial specialists: neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options.
- Child specialists: neutral mental health experts, trained in collaborative negotiation, who may work with everybody and with the children to ensure the children's wishes and preferences are heard and make recommendations about the parenting plan that best meets their needs.
This sounds like an awful lot of professionals, however, in collaborative processes the lawyers and their clients work together to build the team that suits their needs. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation rather than just leaving it all to the lawyers.
The goal of the collaborative process is to help the parties reach a reasonable settlement that restructures their family in the most positive manner possible, recognizing that families continue and need to flourish despite the separation of the adults involved. Parents must be able to effectively work together to raise their children after separation.
How do I start in the collaborative process?
Because it is a voluntary process, both you and your spouse must agree to proceed 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:
- BC Collaborative Roster Society (BC-wide Roster)
- Collaborative Divorce Vancouver (Lower Mainland)
- Victoria's Collaborative Family Separation Professionals (Victoria)
- Okanagan Collaborative Family Law Group (Okanagan)
- Collaborative Law Group of Nelson (Nelson)
- Collaborative Association in Metro Vancouver (Surrey/New Westminster/Fraser Valley)
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.
- 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, other professionals (divorce coaches, financial neutrals, child specialists, etc.) participate in these meetings.
Financial disclosure
As in any process used to resolve matters arising from separation, financial disclosure is essential. The collaborative lawyers seek 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 a single opinion of an expert valuator 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 agree on 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 separately with the child or children in an effort to bring the opinions and voice of the child or children into the discussion. 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 the parenting plan to that agreement. 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 program, see the BC Collaborative Roster Society website.
Resources and links
Legislation
Links
- BC Collaborative Roster Society
- Collaborative Divorce Vancouver
- Victoria's Collaborative Family Law Group
- Okanagan Collaborative Family Law Group
- Collaborative Law Group of Nelson
- Collaborative Association in Metro Vancouver
Downloads
A sample collaborative 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. Copies of the most up to date participation agreements used by collaborative process professionals in BC can be found on the BC Collaborative Roster Society website.
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 27 March 2020. |
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