Difference between revisions of "Collaborative Processes"

Latest revision as of 23:47, 3 March 2020

In the collaborative process, 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 work with counsellors 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 brief introduction to the collaborative process, a step-by-step overview of what happens, and resources for learning more and getting started.

1 Introduction
2 How do I start in the collaborative process?
- 2.1 Finding a collaborative professional
- 2.2 Signing the participation agreement
3 Next steps in the collaborative process
4 What if a resolution is not reached in the collaborative process?
5 Collaborative Divorce Pro Bono Program
6 Resources and links

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 neutral financial specialist also trained in the collaborative process (often referred to as a financial neutral), 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 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

Family Law Act

Links

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 Deirdre Severide and Catherine Brink, May 20, 2019.

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.

@@ Line 1: / Line 1: @@
-{{JP Boyd on Family Law TOC}}
+{{JP Boyd on Family Law TOC|expanded = outofcourt}}{{JPBOFL Editor Badge
+|ChapterEditors = [[Catherine Brink]] and [[Deirdre Severide]]
+}}
+{{Clicklawbadge
+|resourcetype = more resources like this website from the BC Ministry of Justice on
+|link         = [https://www.clicklaw.bc.ca/resource/1191 Collaborative Law]
+}}
+{{LSSbadge
+|resourcetype = more information on
+|link         = [http://www.familylaw.lss.bc.ca/help/who_CollaborativeFamilyLawyers.php collaborative family lawyers]
+}}In the collaborative process, 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 work with counsellors 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.
-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 <span class="noglossary">brief</span> introduction to the collaborative process, a step-by-step overview of what happens, and resources for learning more and getting started.
-This page provides a brief introduction to the collaborative processes, a step-by-step overview of the process, and a description of the roles played by each of the team members.
+==Introduction==
-==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 neutral financial specialist also trained in the collaborative process (often referred to as a ''financial neutral''), 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 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 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.
-Litigation, which used to be the primary mechanism for resolving family law disputes, is adversarial by nature and usually aggravates the emotional difficulties couples face when their relationships breaks down rather than improving things. In collaborative processes, on the other hand, the parties agree that they will not go to court, and sign an agreement to that effect, and mental health professionals are included in the process as necessary.
+==How do I start in the collaborative process?==
-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. Like all other alternatives to court except arbitration, if each party isn't willing to use and embrace the collaborative process, it simply will not work.
+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.
-==Overview==
+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 <span class="noglossary">divorce</span> coach first and then collaborative lawyers are brought in.
-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 professional===
-===Finding a Collaborative Lawyer===
+The first step in the process is to find and meet with a collaborative lawyer or <span class="noglossary">divorce</span> coach.  To find collaborative lawyers and <span class="noglossary">divorce</span> coaches, go to these websites:
-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 practice 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.
+* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] (BC-wide Roster)
+* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver] (Lower Mainland)
+* [http://www.collaborativefamilylawgroup.com Victoria's Collaborative Family Separation Professionals] (Victoria)
+* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group] (Okanagan)
+* [http://www.nocourt.ca Collaborative Law Group of Nelson] (Nelson)
+* [http://nocourt.net Collaborative Association in Metro Vancouver] (Surrey/New Westminster/Fraser Valley)
-A good place to start looking for a lawyer is the website of the collaborative law practice group nearest you, such as:
+===Signing the participation agreement===
-* Collaborative Divorce Vancouver
+The collaborative process starts when the parties and their collaborative lawyers sign a Participation Agreement.  That agreement provides that:
-* The Collaborative Association (Vancouver)
-* North Shore Collaborative Family Law Group (Vancouver)
-* Collaborative Family Law Group (Victoria)
-* Okanagan Collaborative Family Law Group
-* Collaborative Law Group of the Kootenays
-A quick Google search for <tt>collaborative law bc</tt> should net you some additional resources, including collaborative family law lawyers in your area.
+* 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.
-===The Participation Agreement===
+==Next steps in the collaborative process==
-The parties and their lawyers will enter into a written agreement that commits them to work together using non-adversarial problem-solving techniques and cooperative strategies to negotiate a fair settlement without going to court. The agreement will contain a number of important terms which are very important to understand. Among other things, most Participation Agreements will provide that:
+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 (<span class="noglossary">divorce</span> coaches, financial neutrals, child specialists, etc.) participate in these meetings.
-* the parties are to discuss the issues in a frank and respectful manner, and not make unfounded accusations;
+===Financial disclosure===
-* while the collaborative law process is underway, neither party will commence litigation;
-* if the collaborative law process ends, both parties must fire their lawyers and obtain new ones if they wish to litigate their dispute;
-* either lawyer will be required to end the process if his or her client withholds or misrepresents information; and,
-* all communications generated during the process are to be kept strictly confidential.
-===Professional Advisors===
+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:
-The parties and their lawyers then select the people who will be a part of their team (see below), their divorce coaches, the child specialist, if there are children involved, and their financial advisors, if there are complex financial issues. These professionals are neutral in their approach and are not hired to represent either party. Rather, their role is to help the process along by providing obective options and opinions about the subjects at issue.
+*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.
-===Disclosure===
+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.
-The team then begins the process of making disclosure of all documents and information relevant to the issues between the parties. This is process is not a poker game, with each spouse bluffing the other and whatnot, this process requires absolute and unswerving honesty.
+===Exploring options for settlement===
-The parties produce their documents and information to the other on the understanding that the information, except for legal documents like Financial Statements, and the content of the negotiations will never be used in court and will remain private and confidential between the people involved in the collaborative law process.
+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 <span class="noglossary">estate</span>, 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.
-===The Negotiation Process===
+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.
-Once full disclosure has been made, the parties then begin to negotiate the terms of a settlement, relying on the advice and input of their respective lawyers and the other team members to craft a resolution which both parties are as happy with as possible. You can expect that this will be a process of mutual compromise, and that neither of you will wind up with an agreement which reflects your original positions!
+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 the segment "Tips for Successful Mediation" in the Alternatives to Court > Mediation chapter for information about communications skills that can be helpful during the negotiation process.
+===Parenting plan===
-Along the way, depending on the nature of the issues, one or more interim agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap issues designed to deal with issues like the sale of the family home if money is needed, the parties' time with the children over holidays, and so forth. These interim agreements will fall by the wayside when a final agreement is reached.
+When there are children, the parents will often work with the <span class="noglossary">divorce</span> coaches to agree on a parenting plan.  The parents meet with the <span class="noglossary">divorce</span> 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.
-===The Final Agreeement===
+===Reaching an agreement===
-The terms of the resolution are then put into either a formal separation agreement or are drafted as an order that the parties will ask the court to make by consent.
+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.
-===Downloads===
+Read the [[Separation Agreements]] section in the [[Family Agreements]] chapter for a discussion about separation agreements and their effect.
-The link below will open a sample participation agreement in a new window. You will require Adobe Acrobat Reader to view this file, a free program available for download from Adobe Software.
+==What if a resolution is not reached in the collaborative process?==
-In this sample, our fictitious parties, Jane Doe and John Doe, are entering into a participation agreement with their lawyers, Alice Smith and Sylvia Black.
+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.
-Participation Agreement
+==Collaborative Divorce Pro Bono Program==
-This sample document is just that: a sample. 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 nor may it reflect the agreement you will enter into if you chose the collaborative law process. Use it as a reference only.
-==The Team==
+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 [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.
-The collaborative law team is made up of psychological counsellors ("divorce coaches"), family law lawyers, a financial specialist and a child specialist who work together with the spouses and their children. The degree to which each of these types of professional may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become a key member, for others it may be their divorce coaches; when the financial issues are straightforward, the financial specialist may be unnecessary.
+<!---HIDDEN
+==Further Reading in this Chapter==
-===The Lawyers===
+Return to the <span style="color: red;">first page</span> in this chapter.
-The role of the lawyers in the collaborative law process is to advance the needs and protect the interests of each client. The lawyers advise their clients on their legal rights and obligations, and provide them with information about the law, and likely long- and short-term results of any particular course of action.
+* <span style="color: red;">Mediation</span>
+* <span style="color: red;">Arbitration</span>
+* <span style="color: red;">Parenting Coordination</span>
+END HIDDEN--->
-===The Divorce Coaches===
+==Resources and links==
-The divorce coaches are counsellors. They help guide their clients through emotional turbulence of the breakdown of their relationship and assist each party in maintaining an objective view of the situation. They may also help their clients develop their views on the issues and teach them effective communication strategies.
+===Legislation===
-===The Financial Advisor===
+* ''[[Family Law Act]]''
-This person is a neutral party in the process, someone without any loyalty to one spouse or the other who is able to look at things objectively and impartially. His or her job is to present options to help the parties deal with the financial aspects of their relationship, in terms of both the present and the long-term future.
+===Links===
+* [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society]
+* [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver]
+* Victoria's [http://www.collaborativefamilylawgroup.com Collaborative Family Law Group]
+* [http://www.collaborativefamilylaw.ca Okanagan Collaborative Family Law Group]
+* [http://www.nocourt.ca Collaborative Law Group of Nelson]
+* [http://nocourt.net/ Collaborative Association in Metro Vancouver]
-===The Child Specialist===
+===Downloads===
-This person is another neutral party whose job is to represent the interests of the children, without any loyalty duty to either parent. While all the members of the process are concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, that the parties develop a proper parenting plan, and to help identify and address issues regarding the children's future care.
+A sample collaborative process participation agreement is available for download: [[Media:Participation Agreement sample.pdf | Participation Agreement (Sample) PDF]]
-==Page Links & Resources==
+In the sample, Jane Doe and John Doe are entering into a participation agreement with their lawyers.
-list of links mentioned in page
+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 [http://www.bccollaborativerostersociety.com BC Collaborative Roster Society] website.
+{{REVIEWED | reviewer = [[Deirdre Severide]] and [[Catherine Brink]], May 20, 2019}}
 {{JP Boyd on Family Law Navbox|type=chapters}}
+{{Creative Commons for JP Boyd}}
+[[Category:JP Boyd on Family Law]]

Difference between revisions of "Collaborative Processes"

Latest revision as of 23:47, 3 March 2020

Contents

Introduction

How do I start in the collaborative process?

Finding a collaborative professional

Signing the participation agreement

Next steps in the collaborative process

Financial disclosure

Exploring options for settlement

Parenting plan

Reaching an agreement

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

Collaborative Divorce Pro Bono Program

Resources and links

Legislation

Links

Downloads

Personal tools

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