UNEASY TRUCE OR STRANGE BEDFELLOWS

A large number of family litigants, maybe the majority, have never heard of a collaborative approach for resolving family disputes and those that have may not have considered it the best way for handling their separation. 

There is a number of reasons. The bitterness is too great or one or both sides feel the need to make the other pay or the need for vindication; some have a deep-seated desire to tell their story to a judge, or some just have a gut feeling may be collaborative is too “soft” or pie-in-the-sky for handling their case.

 This is not an exhaustive list of why separating couples feel the court is the only suitable forum. Sometimes, they are right, the court is where they have to deal with the separation.

But even in cases where court seems the only avenue, at some point, the parties start considering alternatives. For several reasons, the court wears down the parties. 

The length of time to resolve anything, the delays, the increasing costs that gradually eat away at resources and the ability to continue the fight, not to mention the wear and tear on their emotional health and strain on the whole family, especially the children. 

There’s the constant uncertainty, the shifting momentum, the confusion over results that are different from what you expected or what your lawyer told you about possible outcomes; this can come as a shock, particularly when you were convinced your case was so obviously right that how could a judge not see it – all these factors push people at some point to consider alternatives to court, particular alternatives, they dismissed in the beginning as not appropriate or thought not worth considering.

At some point in the litigation, parties will seriously try mediation; this could happen on the eve of trial as a last-ditch effort to avoid a costly trial. As you get closer to trial, people often start thinking about what happens if you lose. 

The parties then often find themselves in a marathon session thrashing out an agreement and making snap decisions because, ultimately, they want to avoid the trial more than test their luck on a throw of the dice in court.

Besides turning to mediation, which is usually the typical alternative option, what many people aren’t aware of is that they can start a collaborative process even after they’re in the middle of a high dispute court file. 

No matter how bitter the language back and forth and threats, ultimately the parties are looking for a negotiated settlement rather than to a pitched battle in court. Will it be difficult? Very likely. The first question before you get into the collaborative process is whether that lawyers will be able to navigate the transition from litigation mode into solution mode. 

Related article: Are you able to Stick to the Negotiations when it gets rough?

What are the advantages of the collaborative process? Why choose it over mediation?

The collaborative process resembles mediation but for a few important differences. For one, the standard collaborative process includes a term that if it does not result in an agreement and the matter goes to court, the parties’ lawyers cannot act on the litigation. This forces each party to change its collaborative lawyer to a new one who had no involvement in the collaborative process. 

Also, any party who wants to leave the collaborative process is bound to give a grace period, usually 30 days, before going to court. This allows the other party to find a lawyer and do preliminary preparation. The collaborative process also typically and freely utilize financial neutrals and family professionals as an integral part of the discussions, which is not the case with mediation. 

These professionals assist the entire process by acting in a neutral capacity keeping the parties focused on the final objectives, providing expertise and advice within their specific areas of specialty. Their participation allows the collaborative process to explore all the drivers of the dispute, areas that the lawyers have no specific expertise or comfort for handling.

How can you fit the collaborative process for your needs?

The collaborative process begins with the signing of a participation agreement. This agreement sets out the rules governing the process. As with any agreement, it can be modified and adapted to suit specific circumstances. 

That is important to understand because going from a court focused process to a collaborative will require amendments to the typical participation agreement, allowing for situations that will normally be contrary to the accepted collaborative principles.

For example, if parties who are in court want to resort to a collaborative process, the risk that they would lose their lawyer if the collaborative process fails might be enough to keep them from entering into the process. In order to start a collaborative process, the participation agreement can be amended to allow each party to retain its lawyer. 

This highlights the principle that the participation agreement, like any other agreement, can be framed and its terms determined ultimately by the parties. Although retaining the lawyers is contrary to a pure collaborative process, there is no legal reason why a non-pure collaborative process cannot be at heart collaborative. 

The agreement can also be changed in other respects. For example, if the collaborative process succeeds in resolving some issues but others remain disputed, the parties can agree on the procedure for returning to court to resolve those disputed items in a cost-effective way. 

This option is not so different from mediation where parties may settle most but not all issues and return to court to decide one or two outstanding areas, as opposed to several times those issues. 

While this may not conform to a pure collaborative process, if it allows the parties to exploit the benefits of the collaborative process to end the dispute, I doubt you will find a lawyer committed to collaborative procedure who would spurn making whatever changes are necessary to the collaborative agreement to get the parties into engaged discussions. The primary focus is to find alternative solutions to what appears an intractable problem

The collaborative agreement is flexible and can be tailored to eliminate features that might have discouraged the parties from resorting to it. Even if the final framework the parties establish offends the purist collaborative approach, the process nevertheless, can effectively be conducted as a collaborative process: this includes reestablishing trust, open, frank discussions, confidentiality, and obtaining the invaluable input of financial and family professionals, all conducted in an environment designed to reduce the level of conflict without belittling the basic lines of disagreement. The parties are not expected to have an agreement at first. The goal is to guide them to an agreement. 

Is your lawyer collaboratively inclined?

An increasing number of family lawyers have taken or are taking collaborative training. Some are strong believers in the process, some are luke-warm adherents, others have never had a collaborative file so they are unaware of its benefits for clients as well as for family practitioners. Some dismiss it as being a soft process, fine when the parties are in agreement on almost everything but not suited for cases where the parties hotly contest all issues.

This view is not true. The collaborative process is as well suited for dealing with conflict as is the court or mediation. However, putting aside the issue of difficult personality types, assuming a complex financial file requiring complex valuations, income assessments, accounting, tax and future cost projections what setting is more suited for fleshing out the complexity and details. 

A public court setting where the parties’ lawyers are haggling in front of a third party or a private setting where all parties can view the materials, get detailed breakdowns and explanations, raise questions and concerns and thoughtfully and jointly obtain whatever additional information and advise they need. 

This is only the financial aspects of a separation. The parenting is sometimes the most hotly contested areas of dispute and stands to benefit the most from what the “collaborative” process brings to the table.

Whether the financial information is simple or complex, however difficult the parenting dispute, the collaborative process, even an impure one, enables the parties so change the environment so that constructive discussions can be rekindled and the framework in which they are negotiating can lead to a finely tailored solution. 

IS THE COLLABORATIVE PROCESS WHIMSY PIE-IN-THE-SKY STUFF BUT NOT FOR ME?

I’ve heard the collaborative process dismissed as being “soft”, meaning great as legal therapy but not suited for hard-nosed negotiations. But the collaborative process is no “softer” than the negotiations of a commercial, labour of whatever other kinds of difficult “hard” negotiation you can imagine. 

If bitter labour and international disputes can be resolved, even when parties are at each other’s throats to begin, why can’t a family dispute, even a bitter one, be settled. A collaborative process however unconventional is premised on the view that parties will ultimately prefer to work out a problem; they stand to mutually gain by agreement. This premise is what will push parties to navigate obstacles, even avert ultimate failure. 

Could the collaborative process fail? Very possibly. No one can say with absolute certainty you will always reach an agreement.   But the chances of reaching one radically improve when parties subscribe to the cornerstone principles of collaboration, even when that collaborative process is a hybrid beast. 

If none of the lawyers are collaboratively trained, the option of turning to that process is probably nil. But with increasing numbers of lawyers completing collaborative training, it may be worth your while to inquire if this option is feasible. You may be surprised to learn not only that a collaborative style process can be explored but that the lawyers will enthusiastically embrace it.

Related article: The disagreement agreement: Putting your separation in writing