Collaborative Agreement of The Collaborative Law Network (TCLN)
ESSENCE OF THE PROCESS
1. Collaborative Family Law is a cooperative and voluntary process. Both the lawyers and the parties acknowledge that the essence of the Collaborative Family Law Process is the shared belief that it is in the best interests of the parties and their families to avoid adversarial proceedings, to commit themselves to resolving their differences in a respectful manner and to work together to create solutions that meet the needs and interests of both parties and their children. Both the lawyers and the parties acknowledge that this process focuses on the future well-being of the parties and their children and relies upon the participants’ honesty, cooperation, integrity, trust and rapport.
2. The parties acknowledge that the goal of Collaborative Family Law is to maximize the settlement options for both parties, the ability of the parties to communicate and to minimize, if not eliminate, the negative emotional, social and economic consequences to the parties and their children of adversarial proceedings.
COMMITMENT OF THE PARTIES
3. In choosing the Collaborative Family Law Process the parties commit themselves to:
a. resolving differences justly and equitably;
b. keep the best interests of their child(ren) paramount in all negotiations, settlement options and decisions;
c. give priority to resolving differences relating to their children and to that end consider engaging a Parenting Mediator or other expert to assist them in developing a Parenting Plan that is appropriate for their child(ren);
d. settling this case without adversarial Court or arbitration involvement;
and,
e. giving full, honest and open disclosure of all information, whether requested or not; and,
f. provide sworn statements making full, accurate and fair disclosure of all expenses, assets, income and debts.
4. The parties agree to provide any releases that are necessary to obtain information from any person or institution that holds or has access to information pertaining to a parties’ employment, business, income, assets, debts or any other financial information, and provide any releases that are necessary to obtain information from any person or institution that holds or has access to information pertaining to their child(ren).
5. The parties agree that a Court Order may be necessary to obtain information that neither party has in their possession or under their control which cannot be obtained by the parties providing releases. The parties agree to the preparation and filing of necessary Court documents to obtain information that is necessary to the process and to effectuate the terms of a settlement and complete their divorce. (optional based on parties’ instructions)
6. The parties intend to effectively communicate with each other to efficiently and economically settle the issues arising from the dissolution of their relationship. All written and verbal communication will be respectful and constructive and will not be accusatory. Communication during settlement meetings will be focused on the economic and parenting issues of the dissolution of the relationship and on the constructive resolution of those issues.
7. The parties are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement, and each party is encouraged to speak freely and express his or her needs, desires and options without criticism or judgment by the other party.
8. Each party shall uphold a high standard of integrity and shall not take advantage of inconsistencies or miscalculations of the other, but shall disclose them and seek to have them corrected.
9. The parties and their lawyers will work to protect the privacy and dignity of all involved, including the parties, the lawyers and any mediators, experts or consultants that may be involved in this process.
10. The parties and their lawyers agree to deal with each other in good faith and to promptly provide all necessary and reasonable information requested.
LIMITATIONS OF THE COLLABORATIVE PROCESS
11. The parties acknowledge that by using the Collaborative Family Law Process they are giving up certain rights for the duration of the Collaborative Family Law Process, including the right to formal discoveries, the right to formal hearings and other procedures provided in the adversarial systems. The parties give up these rights on the specific understanding that both parties will make full, accurate and fair disclosure of all assets, income, debts, employment and business circumstance,
including expected or likely changes to their circumstance, and other information. The parties acknowledge that participation in the Collaborative Family Law Process and any settlement reached are based upon the assumption that the parties have acted in good faith and have provided complete and accurate information to the best of their ability.
12. The parties acknowledge that the Collaborative Family Law Process will involve vigorous good faith negotiations. The parties agree to take a reasoned approach in all disputed issues. Where parties have different perspectives on an issue, the parties will use their best efforts to create proposals that meet the fundamental needs of each of the parties, and if necessary to compromise to reach a settlement of all of the issues.
13. In choosing the Collaborative Family Law Process, the parties acknowledge and understand that there is no guarantee that the parties will be successful in resolving their case. They understand that the process cannot eliminate concerns about disharmony, distrust or differences which have led to their current circumstances. While the parties are intent on striving to reach a cooperative solution, success will ultimately depend on their commitment to making the process work.
14. The parties acknowledge that if court action is necessary in the event that we do not settle all our differences by this process, the period of time from the date of this agreement to a date which is 30 days after either one of both of us withdraw from this process as defined in paragraphs 21 through 24 of this agreement, shall not be counted in any limitation period that applies to any of the claims or issues under consideration in this process.
ROLE OF LAWYERS
15. The parties acknowledge and take responsibility to assert their respective interests, needs and concerns and that each lawyer will assist his or her client to do so. The parties shall not lapse into a false sense of security that the process will protect each of them.
16. The parties acknowledge that each lawyer is independent from the other lawyer participating in this Collaborative Family Law case and represents only one party in the process.
17. Although the parties and the lawyers may discuss the likely outcome of a litigated result no person in this process will use threats of abandoning the Collaborative Family Law Process or of proceeding with litigation as a means of forcing a concession or a settlement.
18. While the lawyers share a commitment to the Collaborative Law Process, as outlined in the Protocol, the Process Guidelines and this Collaborative Agreement, each of the lawyers has a professional duty to represent his or her own client diligently. Each party acknowledges that under no circumstances is the other party’s lawyer acting as a lawyer for him or her.
LAWYERS’ FEES AND COSTS
19. The parties agree that both lawyers are entitled to be paid for their services. Each party agrees to be responsible for the payment of his or her own lawyer’s fees and disbursements, shall make funds available for this purpose and shall comply with the Retainer Agreement.
MEDIATORS AND EXPERTS
20. If experts, consultants or mediators are needed, they will be jointly retained by the parties, unless the parties and their lawyers agree otherwise in writing. The experts, consultants or mediators will be directed by both parties and their lawyers to work in a neutral and cooperative effort to assist the parties to resolve the issues.
WITHDRAWAL FROM THE COLLABORATIVE PROCESS
21. If a party decides to withdraw from the Collaborative Family Law Process, prompt written notice shall be given to the other party though his or her lawyer.
22. If a party wishes to withdraw from the relationship with his or her current lawyer, but wishes to retain a new lawyer and to continue in the Collaborative Family Law Process, that party shall give written notice to the other party through his or her lawyer of the party’s intention to continue in the Collaborative Family Law Process and to retain a new Collaborative lawyer. The new lawyer shall execute a new Collaborative Agreement, which will then be signed by the parties and the other lawyer, within thirty (30) days of the party giving written notice pursuant to this paragraph. If a new Collaborative Agreement is not executed within thirty (30) days the other party shall be entitled to proceed as if the Collaborative Family Law Process was terminated as of the date of the written notice given by the other party.
23. If either lawyer withdraws from the Collaborative Family Law Process for any reason other than those outlined and contemplated by paragraph 24, they agree to do so promptly by written notice to the other party through his or her lawyer. The party whose lawyer has withdrawn may elect to continue in the process and shall give prompt written notice of this intention to the other party through his or her lawyer. That party shall have his or her new lawyer execute a new Collaborative Agreement, which will then be signed by the parties and the other lawyer, within thirty (30) days of the party
giving written notice of his or her intention to continue with the process. If a new Collaborative Agreement is not executed within thirty (30) days the other party shall be entitled to proceed as if the Collaborative Family Law Process was terminated as of the date of the written notice given by the other party.
24. Upon termination of the Collaborative Family Law Process by a party or a lawyer there will be a thirty (30) day waiting period (unless there is an emergency) before any Court or arbitration hearing to permit the parties to retain new lawyers and make an orderly transition. All temporary written agreements reached between the parties shall remain in force during this
thirty (30) day period. The intent of this provision is to avoid surprise and prejudice to the rights of either party. It is mutually agreed that either party may bring this provision to the attention of the Court or an Arbitrator to request a postponement of a hearing.
ABUSE OF THE COLLABORATIVE PROCESS
25. The parties and lawyers acknowledge and understand that the lawyers will withdraw from the case as soon as possible upon learning that his or her client has withheld or misrepresented information or otherwise acted so as to undermine the Collaborative Family Law Process or taken unfair advantage of the other party. The lawyer will advise the other lawyer in writing that he or she is withdrawing and the Collaborative Family Process shall then be terminated. Examples of behaviour that shall warrant a withdrawal include, but are not limited to:
a. A party secretly disposing of property;
b. A party failing to disclose the existence of or the true nature of his or her assets and/or obligations;
c. A party failing to inform the other party of an anticipated future event that would change that party’s financial position;
d. A party abusing the minor children;
e. A party fleeing, or planning to flee, the jurisdiction with the children, or,
f. A party failing to participate in the spirit of the Collaborative Family Law Process.
DISQUALIFICATION
26. The parties understand that a lawyer’s representation of a party is limited to the Collaborative Family Law Process and that neither lawyer can ever represent either party in a litigation proceeding, in Court or in arbitration, against the other party.
27. In the event that either party chooses to abandoned the Collaborative Family Law Process his or her lawyer will be disqualified from representing that party.
28. In the event that the Collaborative Family Law Process terminates, all experts and consultants retained during the Collaborative Family Law Process shall be disqualified as witnesses and their work product shall be inadmissable as evidence in any litigation proceeding, in either Court or an arbitration, unless both parties agree otherwise in writing.
CONSENT COURT PROCEEDINGS
29. Notwithstanding that the lawyers may not represent a party in any litigation proceeding with the other party, if a written agreement is reached during the Collaborative Family Law Process, the lawyers may file such court documents as may be required to file the agreement with the Court and to complete uncontested divorce proceedings for the parties, where
applicable, in accordance with the terms of the written agreement. Both lawyers shall be required to consent to all documents filed with the Court. Where the parties have signed a final agreement, if a party should refuse to honor the agreement, the final agreement may be presented to a Court for enforcement; however, a lawyer who represented a party during the Collaborative Family Law Process shall not represent that party during the litigation to enforce the terms of the written agreement.
30. In the event that the parties require a temporary agreement during the Collaborative Family Law Process the agreement shall be put in writing and signed by both parties and their lawyers. If the parties agree, such a temporary agreement may be entered into a Consent Court Order by their lawyers who are acting within the Collaborative Family Law Process. If either party withdraws from the Collaborative Family Law Process, a written temporary agreement is enforceable and may be presented to the Court as a basis for an Order, which the Court may make retroactive to the date of the written agreement; however, a lawyer who represented a party during the Collaborative Family Law Process shall not represent that party during the
litigation to enforce the terms of the temporary agreement.
31. Unless otherwise agreed, prior to reaching a final agreement on all issues, no application shall be filed with the Court or served, nor will any other motion or documents be prepared or filed which would initiate the intervention of the Court or an Arbitrator, except to enforce a written agreement reached during the Collaborative Family Law Process.
CONFIDENTIALITY
32. All communication exchanged within the Collaborative Family Law Process is confidential and without prejudice and is deemed to be settlement negotiations between the parties. If subsequent litigation occurs, the parties mutually agree that:
a. neither party will introduce as evidence in Court or an arbitration hearing (hereinafter called a “litigation proceeding”) information disclosed during the Collaborative Family Law Process, except documents otherwise discoverable or compellable by law, including any sworn financial statements made by the parties;
b. neither party will introduce as evidence in a litigation proceeding information disclosed during the Collaborative Family Law Process with respect to either parties’ behaviour or legal position with respect to settlement;
c. neither party will ask, subpoena or summons as a witness in any form of proceeding, litigation or otherwise, either lawyer to testify in any proceedings, nor bring an application to examine in any manner either lawyer, with regard to any matter or information disclosed during the Collaborative Family Law Process;
d. neither party will seek or require the production at any litigation proceeding of any notes, records or documents in the possession of lawyer from the Collaborative Family Law Process;
e. information provided by one lawyer to the other lawyer or to a party during the Collaborative Family Law Process shall not been deemed a waiver of any privilege or confidentiality in subsequent litigation;
f. except upon the mutual written agreement of the parties to the contrary, any expert, consultant, person or firm retained by either party or a lawyer within the Collaborative Family Law Process or whose work product was used by either party or a lawyer is forever disqualified from appearing as an expert or other witness for either party to testify as to any matter related to that person’s or firm’s work product. Except upon the mutual written agreement of the parties to the contrary, all notes, working papers, summaries and reports shall be inadmissable as evidence in any litigation
proceeding involving the parties;
g. any statement indicating an intention to endanger the safety of another person, within or outside the Collaborative Family Law Process or the parties’ children is not confidential or privileged in any manner; the parties agree that the provisions with respect to confidentiality apply to any subsequent litigation proceeding or other process of dispute resolution.
AGREEMENT AND PLEDGE
33. Both parties and their lawyers acknowledge that they have read this Agreement, understand its terms and conditions, and agree to abide by them. They also pledge to promote the spirit and written word of this Agreement.
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