The Collaborative Family Law fundamentals
 BASIC PRINCIPLES
A written contract called a “Participation Agreement” commits the separated parties and their lawyers to work together co-operatively to resolve problems arising from the marriage breakdown. The separated spouses agree in writing NOT to start court proceedings unless all efforts at negotiating a collaborative solution have been exhausted.
The lawyers also sign the “Participation Agreement” with the parties and with each other to withdraw if their client goes to court. The couple realizes how important it is to work toward an agreement. If they don’t, they have to start all over again with new lawyers, wasting the fees they have already paid.
Collaborative law applies whether the parties are married, common-law, or same-sex couples ending their relationships.
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HOW IT WORKS
The Collaborative Family Law process is based on a series of meetings in which the parties are present with their lawyers. These meetings typically take place in a library or boardroom setting. Before the first four-way meeting you will have met with your own lawyer to discuss the issues of concern to you and to decide whether CFL is appropriate. In addition, your lawyer will meet with or speak to the other lawyer retained by your spouse (another lawyer trained in Collaborative Family Law.)
The lawyers will demonstrate constructive communication and will keep your discussions focused on the problems you and your spouse are trying to solve. They will help you find creative solutions which are sometimes not available if you were to go to court. The lawyers will provide legal advice and help you to come up with options for resolution. They will also help you to improve your listening, communication, and negotiation skills.
In CFL both parties must make full disclosure of their finances and of important facts necessary to make informed decisions. If there are issues concerning children, the parties and lawyers commit to finding solutions that meet the best interests of their children. In CFL the parties and the lawyers all treat one another with respect, and they work as a team with the parties to facilitate the settlement.
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SOMETIMES COLLABORATIVE FAMILY LAW IS NOT APPROPRIATE
Not every case is suitable for Collaborative Family Law. Separating parties are NOT good candidates for CFL if they are:
1. Still in denial about the separation or divorce;
2. So angry at the other person that a four-way meeting would be unproductive.
3. Unable to adhere to the “ground-rules” for good communication (e.g. constantly interrupting or name-calling);
4. Afraid of the other spouse because of his or her abusive or controlling behaviour; or
5. Unwilling to share all necessary information.
COLLABORATIVE LAW IS DIFFERENT FROM MEDIATION
In Mediation, a neutral person helps the parties to work out their own settlement. A mediator does not act for either party and DOES NOT provide legal advice. In a typical family law mediation the clients attend mediation either with or without their lawyers.
In CFL each party has a lawyer present during the negotiations, and the primary focus is settlement. Each lawyer ensures that his or her client is provided with legal advice about the issues. Then the parties and their lawyers work as a skilled team to obtain the best settlement possible.
FUNDAMENTALS FOR CLIENTS
1. IT’S OVER: You recognize and accept that your relationship is at an end. The CFL process is to resolve the property and financial obligations and to develop a parenting plan for your children, while minimizing the emotional and economic stress of separation.
2. LAWYERS’ ROLE: Your lawyer will ensure that you know your legal rights and obligations. Although both lawyers will express opinions during your four-way meetings, each lawyer only acts for his or her own client.
3. YOU CONTROL THE PROCESS: You will control the cost, the timing, and the results of the process based upon your individual needs.
4. CONFIDENTIAL AND SAFE ENVIRONMENT: The process is confidential, ensuring that your privacy is protected. In contrast, your documents filed in court are a matter of public record.
5. NO COURT: In the CFL process, both of you promise that you will not take the matter to court. All documentation, discussions, offers made, or compromises reached during negotiations are “without prejudice,” meaning that in the unlikely event that you do not come to an agreement and the matter proceeds to court, nothing that was said during the CFL negotiations may be used in court against you.
6. IF YOU HAVE CHILDREN: The most important consideration is “what is best for the children.” Normally both of you will participate in parenting your children. Both of you will present a united front respecting the children and will not involve the children in your negotiations.
7. CREATIVE SOLUTIONS: In CFL the parties first identify the issues, decide which issues should be dealt with first, and then focus on finding creative solutions that best meet the goals of both parties.
8. FULL FINANCIAL DISCLOSURE: Each party must give to the other honest and full financial disclosure and all other important information.
9. INTEGRITY: Each participant is expected to correct any miscalculation and inadvertent mistake, either their own or on the part of the other spouse.
10. CIVILITY: During the joint meetings the lawyers and the spouses are expected to be very respectful of the others. Although the material separation may be very stressful emotionally, civility is expected. YOU ARE PRESENT TO RESTRUCTURE YOUR FUTURE, NOT TO REHASH THE PAST.
Court Process |
Collaborative Law Process
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Process is governed by Rules of Procedure that create artificial time frames for final resolution of issues
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Process is governed by the terms of the Participation Agreement and the parties set their own time lines for resolution of the issues
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Process contains many steps which may not be necessary for the majority of family situations
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Process is much more efficient and meetings are only called as needed
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Potential for much miscommunication because each party only communicates with his/her lawyer and may never understand the other person’s legal position until court.
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There is much less miscommunication because each party’s legal position is made known from the outset and the parties decide how to resolve any differences in the parties’ positions
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Ultimate decision in hands of a judge who has no knowledge of the family situation or of the parties themselves
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Ultimate decision on all matters is totally in the control of the parties with independent legal advice from their own lawyers
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Lack of creativity in final decision because judge is bound by previous court decisions
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Parties and lawyers are able to find more creative solutions to financial and custodial problems
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There is always a winner and a loser and children lose out no matter what happens
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Both parties win because they are in control of the decision making process in a less stressful environment which is better for both and is better for children
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Court process is public
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Collaborative process is totally private
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To move on to discover more about how the process works, read up on GETTING STARTED
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