Collaborative Negotiation

In collaborative processes, the parties and their lawyers, and sometimes other professionals, work together as a team to find a resolution to the issues arising from the breakdown of the parties' relationship. The other professionals the parties might work with include psychologists or clinical counsellors, and experts such as child specialists and financial specialists, who are called upon as the need arises during the collaborative process.

Collaborative negotiation is meant to address both the legal and the emotional consequences of the breakdown of a relationship, in a cooperative rather than a competitive way. As a result, it can help people deal with difficult issues, like substance abuse and mental health problems, in a far more constructive way than going to court. It is, in my view, 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.

Introduction

Collaborative negotiation is a voluntary, cooperative 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 a long-term relationship. (Not surprisingly, the emotional issues that come up after separation can often be a barrier to resolving the legal issues.) The other professionals 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. ("Divorce coach" really isn't the best name for the mental health professionals who take this role, since collaborative negotiation is available for all families, not just those in which the adults are married to each other.)
• Financial specialists: neutral financial experts, trained in collaborative negotiation, who may work with everybody to review and make recommendations about the available financial options. They include accountants, business valuators and investment advisors, as well as people who are experts in wills and estates, taxation, retirement planning and public benefits.
• 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. They may also make recommendations about the parenting arrangements that will best meet the children's 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 best suits their needs and circumstances. As well, this approach provides a more specialized, and often more cost-effective, way to deal with separation than just leaving it all to the lawyers. Most collaborative professionals believe that this process is normally more cost-effective and more efficient than litigation.

The purpose of collaborative negotiation is to help the parties negotiate 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 long after their romantic relationship has come to an end, and that is the fundamental goal of collaborative negotiation.

How do I start a collaborative process?

Because collaborative negotiation is voluntary, everyone has to agree to use it to resolve their dispute. Once the parties have agreed to use a collaborative process, they must each hire a collaboratively-trained lawyer. Sometimes the process starts when the parties meet with a divorce coach, and then decide to involve lawyers trained in collaborative processes.

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 (province-wide)
• Collaborative Divorce Vancouver (Vancouver and the lower mainland)
• Collaborative Family Separation Professionals (Victoria)
• Okanagan Collaborative Family Law Group (the interior)
• Collaborative Law Group of Nelson (Nelson)
• Collaborative Association in Metro Vancouver (Surrey, New Westminster and the Fraser Valley)

Signing the participation agreement

Once each party has hired a collaboratively-trained lawyer, they will all sign a collaborative participation agreement. The process starts when the participation agreement is signed. The agreement says, among other things, that:

• no party will commence a court action while in the process,
• each party will make full disclosure of their financial information and circumstances,
• all communications between the parties are confidential, and will stay that way until a written separation agreement is signed,
• none of the lawyers can represent their clients if the collaborative process fails and the parties go to court,
• each of the lawyers must terminate the process if their client refuses to provide necessary financial disclosure, and
• the parties will make their best efforts to communicate with each other in a respectful manner.

Next steps in collaborative processes

Most of the work in collaborative negotiation takes place in meetings between the parties and the professional members of the process. The professionals work to identify the needs and interests of each of the parties, and, together with the parties, discuss options for settlement and the resolution of the legal issues. The parties are very involved in these discussions, and retain control over the collaborative process and its outcomes. Other professionals — divorce coaches, financial specialists, child specialists, and others — will participate in these meetings as needed.

Financial disclosure

As in all family law dispute resolution processes, honest, accurate and up-to-date financial disclosure is essential. The lawyers will work with the parties to make full disclosure of all relevant documents and information. The sort of documents that are most often important in making financial disclosure include:

• statements for bank accounts, retirement savings accounts, investment accounts, and other financial accounts,
• current statements for debts including loans, mortgages, and credit cards,
• income tax returns, along with notices of assessment and any notices of reassessment,
• corporate financial statements and corporate tax returns, and
• statements of the parties' current incomes.

The parties provide their documents and information to the collaborative team on the express understanding that all discussions and negotiations in the collaborative process are private and confidential. In fact, this is a requirement of the Family Law Act as well. Section 5 says that:

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.

Exploring options for settlement

Once financial disclosure has been made, the parties and their lawyers, and sometimes a financial specialist, begin exploring options for settlement. If necessary, the lawyers will get expert opinions on the current market value of any property, businesses, artwork, collections, and other assets that can be difficult to value. In collaborative negotiation, the parties will usually retain a valuator or appraiser together. Discussions continue until the parties reach a resolution that meets their most important needs.

We've said a few times that collaborative processes are private and confidential. This includes both discussions in the negotiation process — whether those communications occur in meetings between the parties and their lawyers or in correspondence by mail and email — and the documents and information that are exchanged for the purposes of those discussions. The reason why these discussions and documents are private is to allow everyone to be as honest and as creative as possible in exploring options for settlement. Each party needs to be able to make settlement proposals and admissions without worrying that their statements will be held against them in the event the process goes off the rails and winds up being resolved in court.

Because collaborative negotiation is confidential, discussions to identify options for settlement tend to involve some surprisingly candid, transparent and imaginative brainstorming, even when the parties are dealing with very difficult subjects like substance use and abuse, physical and mental health challenges, and parenting deficits. The settlements that result from collaborative negotiation are usually equally creative, sometimes in ways that are not possible through processes like arbitration and litigation.

You may want to have a look at the discussion of tips for successful mediation in the Mediation section later in this chapter. It has information about communication skills that can be helpful during collaborative processes.

Developing parenting plans

When there are children, the parties will usually work with their divorce coaches to develop and settle on a parenting plan that focuses on the best interests of their children. If needed, a child specialist may be involved to meet separately with the children in an effort to bring other opinions, and sometimes the voice of the children, into the parents' discussions. While the coaches are working with the parents to finalize a parenting plan, they help the parents deal with any emotional issues that arise and work with the parents to equip them, as best as possible, to raise their children together and resolve any problems that may arise in the future.

Reaching an agreement

The lawyers and divorce coaches try to help the parties reach a durable, long-lasting agreement that addresses most of the parties' needs and priorities in a timely manner, without the pressures and conflict involved in going to court. When an agreement is reached, the lawyers will confirm the terms of the settlement in a separation agreement and attach the parenting plan to that agreement. The collaborative process ends when the separation agreement is finalized and everyone has signed the agreement.

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

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

Approximately 92 to 95% of all family law disputes that go to collaborative negotiation are resolved. That's a pretty good success rate.

When a dispute is not resolved through collaborative negotiation, which doesn't happen all that often, the parties must hire new lawyers and try to resolve their dispute some other way. It is important to remember, however, that all of the discussions and negotiations that happened in the collaborative process are private and confidential, and can't be used by anyone in any court proceedings.

Pro Bono Collaborative Family Law Project

The BC Collaborative Roster Society offers a pro bono program for people who are separating, do not have lawyers, and are willing to meet with each other and negotiate using the principles of collaborative negotiation but can't afford the collaborative team for their case. The Pro Bono Collaborative Family Law Project is available in Vancouver and Victoria. To be eligible for the program, the parties must:

1. both consent to participate in settlement meetings,
2. have a combined gross annual income of less than $75,000, and
3. own property, excluding pension plans, with less than $100,000 in equity.

The program gives preference to the most needy applicants.

Visit the website of the BC Collaborative Roster Society for more information.

Resources and links

Legislation

• Family Law Act

Links

• BC Collaborative Roster Society (province-wide)
• Collaborative Divorce Vancouver (Vancouver and the lower mainland)
• Collaborative Family Separation Professionals (Victoria)
• Okanagan Collaborative Family Law Group (the interior)
• Collaborative Law Group of Nelson (Nelson)
• Collaborative Association in Metro Vancouver (Surrey, New Westminster and the Fraser Valley)
• Settling Out of Court from Justice Education Society of BC
• Resolving Disputes Without Going to Court from Dial-a-Law by the People's Law School
• Mediation, collaborative negotiation, and arbitration from Dial-a-Law by the People's Law School

Resources

• Sample collaborative negotiation participation agreement (PDF)
  • This sample participation agreement may not look like the participation agreement you may be asked to sign. It provides a more or less accurate picture of what collaborative participation agreements usually say, but should be used only as a reference.
• Participation Agreements & Other Forms from the website John-Paul Boyd Arbitration Chambers
  • model participation agreements for download.
• Participation Agreements from the BC Collaborative Roster Society
  • free, downloadable copies of the participation agreements currently used by its members.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2021.

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.