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 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

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.

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.

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.

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 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.

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
• 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 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. The participation agreement will contain a number of important terms which are very important to understand. Among other things, most participation agreements will provide 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 proceeding in court
• if litigation starts, both lawyers must withdraw and cannot continue to represent their clients
• the lawyer must end the collaborative process if his or her client withholds or misrepresents information
• all communications generated during the process are to be kept strictly confidential

More importantly, most participation agreements 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 divorce coaches, child specialists, if there are children involved, or financial advisors, if there are complex financial issues. These professionals 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 options and opinions 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
• confirmation of income

The parties produce their documents and information to the other on the understanding that the information, except for certain 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 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 emptional issues and the distance between the outcomes each party hopes to acheive. 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 opintion 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 repleaced by the final agreement.

You may want to have a look at the discussion "Tips for Successful Mediation" in the Alternatives to Court > Mediation page for information about communications skills that can be helpful during the negotiation process.

Signing the Final Agreeement

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

The collaborative process normally ends with the signing of the final agreement.

Have a look at the Family Agreements > Sepration Agreeements page for a discussion about separation agreements and their effect.

The Team

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.

The Lawyers

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.

The Divorce Coaches

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.

The Financial Advisor

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.

The Child Specialist

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.

Further Reading in this Chapter

Return to thefirst page in this chapter.

• Mediation
• Arbitration
• Parenting Coordination

Page Resources, Links and Downloads

Collaborative Pratice Groups and Rosters

• bulleted list of linked groups referred to in page

Links

• bulleted list of linked external websites referred to in page

Downloads

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.

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.

Participation Agreement 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.