THE BASICS

COLLABORATIVE FAMILY LAW (“CFL”) is a dignified, cooperative approach to negotiating and settling the issues arising from a family separation without going to court. Separated spouses, with the assistance of specially trained family law lawyers, negotiate their issues, as they define them, in a controlled, safe, and respectful setting. These structured negotiations happen in meetings between the spouses and their lawyers. These “Four-way Meetings” allow the spouses to explore together their issues, as they define them, in their voice. The lawyers act both as communication / negotiation coaches for their clients, and simultaneously fulfil their usual role of advising their clients about their legal rights, entitlements and obligations. The parties focus on effectively communicating to gather facts and discover each other's interests. Emotional tactics, threats, or abusive communications are all identified, discussed and eliminated. The lawyers, having agreed to not take part in any litigation that may occur if an agreement isn't reached, efficiently focus their time and effort solely on settlement, rather than posturing or preparing documents or themselves for court. Everyone, including the lawyers, are focused on creating together a stable, fair, legal Agreement.

What we are calling here an “approach” or elsewhere a “process” is exactly that. Collaborative Family Law, or CFL, is a method of negotiating. It is a highly specialized method of negotiating that was developed specifically for the emotionally-charged, complex and nerve-wracking negotiations that must occur when one or both members of a family decide that they can no longer, for whatever reason, live together.

It is a method of negotiating that is designed and structured to maximize your chances for success. Success is what you define it to be. But your goals need to be realistic, and this is where your collaborative family law lawyer will assist you. If you want to announce to your spouse that the marriage is over at breakfast and have a deal before dinner, well, that is a goal. It is not a very realistic goal, but it is a goal. Our job as collaborative lawyers is not to tell you what you want - it is to divine from you what you want, place that in the context of what is achievable both legally and realistically to determine your real goals, and then execute a plan to get you as close as possible to your goals.

But how does it happen? What happens first and then what happens next?

To find out more about how to get started, CLICK HERE for GETTING STARTED.

Once you have gotten started, the process then begins. Together you, your spouse and your lawyers will determine what issues need to be addressed.  Maybe you have already agreed on some major or minor points and just need help with a few issues. Perhaps you have some general agreements and need help tying it all together in a legal Separation Agreement. Perhaps you are starting at “square one”. You may decide to seek the assistance of outside help with some of your issues, such as parenting. You will together decide what order the issues get talked about, and decide on what information is needed (the lawyers will be able to help with this one). Then the time is spent gathering the information (and information isn’t emotional, its just facts, and the best facts should be objectively determinable) analyzing the information in the context of the law, and generating options for agreement.  Often, once you go through the process of information gathering and analysis, the solution is obvious. Sometimes, that is when the negotiations really begin. It is often when the (sometimes hard) work starts : examining interests and positions from different angles, brainstorming, creative thinking, challenging, re-framing and postulating. This is where the (specially trained and experienced) lawyers make the difference.

Remarkably, parties usually find that the lines (the battle lines) that you thought had to exist between you, your spouse, and of course the lawyers begin to blur and before you know it you are part of a problem solving team which together tackles and gets agreements on all your issues.

That is where the “impossible magic” that is CFL happens. The confrontation that you thought would mire you in conflict, turns into collaboration, and generates workable options and plans for your future restructured family.

Make no mistake, this process isn’t easy. This process is built to assist those who are ready to try to take responsibility and ownership of their problems and their issues, their lives and their families. That is sometimes hard work.

While we refrain from claims about outcome (because the parties determine if the process succeeds or not) it is hard to imagine a better outcome being generated by the litigation process that allows you, even encourages you to not communicate honestly and openly, (talking through lawyers) and has you delegate problem solving about the most important things in your life to others (lawyers and judges) who know so little about you, your spouse and your kids.

Perhaps you are left with questions. Here are some Frequently Asked Questions and some responses for you. If these don’t answer your questions, you may surf over here for even MORE INFORMATION, such as links to articles written about CFL and websites of other Collaborative Family Law groups.

FAQ

Q:  I want to work things out, but I am worried that my spouse doesn’t want to talk.  What incentive is there for my spouse?

A collaborative law process is purely voluntary.  Your spouse must choose to participate.  The process has, in our view, many advantages, but if your spouse isn’t ready to communicate with you in any way (other than through lawyers and affidavits) then there is not much you can do about that.  However, your spouse may also perceive the same advantages that you do, and in weighing the pros and cons, may want to try CFL first.  They may wish to avoid the rancour, expense and delay of court, and they may also care about doing as little damage to your relationship or your kids as possible.  Also be aware that your current assumptions about what your spouse is going to do or what they want may be coloured by the stress of your recent interaction - and your separation.  This a very stressful time for both of you, and with time and reflection they might come to a point where they are willing and able to join you in a collaborative negotiation process. 

Q: I am going to disclose everything financially, but what makes my spouse do the same?

This is a voluntary process that each of you have chosen.  The parties voluntarily provide the information and then verify it by providing supporting documentation.  Provision of the information does not guarantee acceptance.  Your lawyer will likely have difficulty recommending that you accept information that is incomplete or isn’t verified by any independent source (tax records, receipts, balance sheets, income statements, etc.).  If you or your lawyer are not satisfied with the disclosure, negotiations are going to be very difficult, and that is not in the best interests of your spouse who has chosen this process, one assumes, on the hope that it will succeed.  If you are convinced your spouse is hiding assets or income you can openly discuss it at the next four-way meeting, and let them convince you that the situation is like they represent, or you can end the process.  One last point, your spouse’s lawyer is obligated to ensure that the disclosure rules are respected and if they aren’t, they themselves are obligated to withdraw from the file. 

Q:   Is CFL cheaper and faster than court?

We believe that, generally, it is less expensive to resolve family law issues by way of a negotiated agreement than through court.  That said, CFL isn’t “cheap”.  Like anything else involving highly trained professionals, the lawyers that will be working for you and with you will be charging an hourly rate for their time, and that rate is not “cheap”.  However, they won’t be wasting their time (and your money) on preparing lengthy court documents and filings, waiting in court, or trying to convince a judge that you are right.  Instead they will be working on and managing the negotiations, getting you focused on your needs and wants, reviewing your legal rights, crunching numbers, and building an agreement piece by piece.

Our experience is that the process is much faster than court.  You don’t have to wait to resolve anything, nor be a slave to the ever-so-slow moving court docket.  The parties and the lawyers can, subject to everyone’s schedules, and comfort level, move the matter along quite quickly.  How does speed relate to cost?  Generally, it doesn’t - but $2,000 or $3,000 spread over a year of court activity vs. the same amount spread over 2 months can make a difference in perception.  If the lawyers and the parties want to move it, and everyone is working hard, the bills can get significant quickly.  That is balanced however as most people find significant value in getting through this difficult process in a timely way and then getting on with their lives.

Q:  Okay, possibly cheaper, possibly faster - why can’t you be more certain?  

We don’t want to make claims about this process that aren’t solidly accurate.  We don’t want to mislead anyone.  Like snowflakes, there are no two family law disputes that are alike.  Even cases with the exact same basic facts - two 50-year-old employed civil servants making 50K each, two kids, one $150,000 house with a 50K mortgage - can lead down different paths.  One unreasonable party with some emotional issues and a score to settle can mire everyone in rancour and court proceedings for years, costing a fortune and destroying family relationships. The same basic facts with a different approach, a different attitude, if we may, an enlightened, forward thinking attitude, can have dramatically different results: a fair and durable agreement reached quickly and efficiently, that preserves parental relationships necessary for the cooperative raising of children into the future. 

So, we need to qualify our “cheaper, faster” claim because even with the same basic facts, the attitude of the parties could possibly make the CFL process more expensive and longer than reasonable parties proceeding through another process.

Q:   What happens if we don't agree? 

If Agreement is not reached, the lawyers must withdraw from the matter, and the parties must litigate the contentious issues (whatever they cannot agree upon) in court with different counsel.  CFL lawyers are settlement experts like trial lawyers are trial experts.  There is a large element of trust between both parties and both lawyers in the CFL approach.  This trust would be hard to create if the clients perceived the other counsel as someone who might one day be cross-examining them in court!  While clients may see this as a waste given that the new lawyer will by necessity have to familiarize themselves with the issues, there are two significant benefits to note.  First, the CFL lawyers have likely narrowed the issues, and by way of (partial rather than global) agreements removed from the dispute a large number of the issues (perhaps all of them save the most contentious) thereby saving litigation cost and delay.  Second, the clients have the benefit of having specialists for each phase of the dispute - settlement experts (CFL lawyers) for the settlement phase and trial lawyers for the trial phase.

 Q:   What is the attraction for you lawyers?  Don’t you make more money with clients that want to fight over everything? 

A:  As stated by a Collaborative Family Law group from Wisconsin: “Many ethical and professional lawyers are troubled by the trend, especially in family law practice, of fighting over everything, depleting the client's resources, adding to the hard feelings and going nowhere fast. These lawyers would like to use their skills to make their client's lives better by solving the problem at hand-- not by giving in, but also not prolonging the fight. These lawyers have a collaborative law attitude.”  

In essence, we are drawn to CFL because it is more positive, constructive and healthy way to spend our days.  One might be proud of the work done on behalf of the client in a court proceeding, but the client is rarely satisfied with the outcome.  If they are satisfied with the outcome, they are likely not happy with the cost or the delay that they endured.  If they are one of the rare cases where they like the result, find the costs reasonable and thought it went along at a good pace, how is their relationship with the other spouse?  And what if the outcome is appealed? Standard divorce practice doesn’t just produce win-lose outcomes, it often generates lose-lose ones.   

For the lawyers, CFL is about generating win-win outcomes, having satisfied clients.  Satisfied clients pay their bills.  Yes, nasty cases generate legal fees, but lawyers bill for our time.  If we can spend the same time at a comparable billable rate doing positive work that generates more positive results for clients, we get more job satisfaction.  Any wonder we want to offer these services? 

Q:  What about the kids?

A:  Not every separation involves children, but for those that do we believe emphatically that if this process is right for you and your issues, that this is the best process for your kids.  Children suffer through conflict.  Period.  Effective communication is key to understanding, and understanding is the key to conflict avoidance in the future.  Quite aside from the benefits for you of a respectful working relationship with your former spouse, your children need you to work effectively as a parenting team.  Decisions will need to be made.  More than anything, this is an opportunity for you to model appropriate problem-solving behaviour to your kids.  Like it or not, your divorce is a learning experience for your kids.  You can show them that adults descend into acrimony and emotional warfare and delegate their problems to others to solve, or you can show them that adults take responsibility for their problems, avoid useless emotional warfare, and do the work (hard as it is) necessary to solve their problems.

Q:  What about complicated financial things? I’ve got some stock options and a pension - don’t we need experts for those things?

A:  You might - and the beauty of this process is that usually the lawyers can agree on who to use.  That means one expert rather than two.  In a non-cooperative process often each “side” gets their expert reports and then you send the other expert’s report to your expert for a critique.  Then, if its gets really stupid, you have to pay your expert to go to court, meanwhile you spend a lot of money to attempt to discredit the other expert, and in the end you’ve possibly spent more than the difference in the two expert valuations!

Q:  Why haven’t I heard of this before?

A:    “Collaborative Family Law” is brand new to Ottawa / Eastern Ontario.  It was born in 1991 in Minneapolis, Minnesota, U.S.A., and started with an idea, by a group of lawyers, to try to “do divorce differently”.  The basic concepts were put together and they started to practice this way with a small group of lawyers.  Their success (and the positive feedback from clients) caused the idea to grow, and from that beginning the idea and practice of CFL slowly moved to the Western U.S., moving north into British Columbia, and then slowly east. 

The process spreads organically, in that it takes a group of lawyers in an area to organize and train and then form a practice group.  That takes time because it takes a very specialized skill set to do this work - and a lawyer can’t acquire that skill set overnight.  First, he or she needs a good grounding in family law practice skills.  Then he or she needs further background in interest-based negotiation and mediation.  This also requires not only courses but hands-on experience.  Then, further training in collaborative law techniques is also necessary.  That requires a groundswell of interested lawyers to not only organize but to then pay for and take that training. Then that group, once trained, needs to organize itself, agree on membership, protocols, common documentation and direction.  Then and only then can CFL “happen”.

And all happened by the hard work of the members of THE COLLABORATIVE LAW NETWORK - and we are now ready for our launch (February 2002) in Ottawa / Eastern Ontario, and ready to offer CFL services to the public.  

Q:  How is this going to work for us when my spouse is just so wrong about so many things!  We are never going to agree about anything!

If you accept that fact, and focus instead upon what must be settled between you, you will find that the number of issues is not that big, and that it isn’t impossible to agree on things. The court is going to have to find some reasonable decision points for your issues that is fair to both parties.  If your lawyers can determine and find those reasonable points and can recommend to both of you to accept agreement at those points, then agreement is possible.

Agreement is also more likely if there is some understanding of the other parties viewpoint.  Understanding comes from effective communication.  We can tell you without equivocation that court pleadings and affidavits are not “effective communication”.  It is also important to distinguish between “Understanding” and “Approval”.  You don’t have to approve of his or her viewpoint, way of being or lifestyle, but understanding why they want what they want is sometimes very helpful.  Remember, you are not about to get more control over them or their parenting style now that you are separated.  Short of some substantial concern about the child’s safety, the court isn’t going to micro-manage their life or their parenting either.

This process isn’t right for everyone, but if you understand what is reasonably achievable through the divorce process, and seek first to understand your spouse’s viewpoint, you might be surprised at what is possible. 

Q:  What I want to know isn’t covered in these FAQs. Where do I get more information?

A:  You can visit our LINKS page to explore other websites from other groups around North America, and see if they more directly address your query, or you may contact one of our lawyers.  You can find out more about our individual lawyers by visiting the CONTACT US page, and reviewing the list of lawyers that are part of THE COLLABORATIVE LAW NETWORK’s practicing panel.  By clicking on any of the names, you will go to a detailed contact information and comment page about the lawyer.  There you will find each of their e-mail addresses, phone numbers, etc., and a brief comment from the lawyer.  Feel free to send any of us an e-mail or give us a call.  We would love the opportunity to speak to you about this option for settling your family law issues.