At Morrison Williams, we frequently get asked questions about the separation process, including:
- Can I negotiate with my spouse directly?
- If we cannot agree, what are our next steps?
- What are the alternative processes to litigation (going to Court)?
In recent years, there has been a growing desire from those going through separation to avoid litigation. It is widely accepted that litigation is costly, time consuming, protracted, and can often heighten conflict between two separating spouses. While litigation is sometimes necessary (for example when one party takes an unreasonable position or is unwilling to negotiate), it is in the best interest of both parties to avoid the Court process if possible.
Legislators have also recognized that alternative dispute resolution processes ought to be explored as an alternative to litigation. Changes to the Divorce Act coming into effect in July 2020 will make it mandatory for parties to attempt resolving the issues arising from their separation through a family dispute resolution process to the extent that it is appropriate to do so. Bill C-78 (an Act to amend the Divorce Act) describes “family dispute resolution process” as “a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.”
While there are various alternative dispute resolution (ADR) processes, including negotiation, mediation and arbitration, the herein blog will focus on Collaborative Family Law. For more information on other ADR processes, please consider reviewing our page describing the separation process.
What is Collaborative Family Law?
Collaborative Family Law, also referred to as Collaborative Practice, is a process defined by the following features:
- Parties work with collaboratively trained lawyers;
- Parties and their counsel enter into a “Participation Agreement” which requires them to negotiate through the collaborative process. The “Participation Agreement” further requires that if the parties cannot reach an agreement through the collaborative process, they will each be required to retain new counsel to represent them in litigation or outside of the collaborative process. In this sense, parties are motivated to remain in the collaborative process and not to resort to threatening litigation;
- The collaborative process will often involve the use of other professionals, including financial and family professionals, who may assist in certain aspects of the negotiations, including the preparation of Financial Statements or developing a Parenting Plan; and
- The Collaborative Process often involves multiple in-person meetings with the parties and their counsel, in which parties are encouraged to communicate directly about their underlying interests and to explore options for reaching a resolution.
What Are the Benefits of Collaborative Family Law?
- The Collaborative Process is more customized to the unique circumstances of the parties and family. The parties control timelines, the involvement of other professionals, and the final settlement.
- The involvement of other professionals, including family and financial professionals, can assist in streamlining the process and is generally more cost-effective than having counsel (lawyers) address all aspects of the negotiations. In this respect, a financial professional, who usually charges a lower hourly rate than a lawyer, will often assist parties with the preparation of their Financial Statements. Financial professionals may also assist with other aspects of the process, including preparing a Net Family Property Statement or determining income for the purpose of calculating support. Similarly, it is not uncommon to involve a family professional to assist with aspects of the negotiation involving children, including the development of a temporary and final parenting plan. Ultimately, it is up to the parties (with the assistance of counsel) to determine which professionals should be involved.
- While separation is a legal process requiring parties to resolve a myriad of legal issues (custody and access, child support, spousal support, equalization of property, etc.), it is often also an emotional and sometimes traumatic time in the lives of the spouses and children. To that end, families moving through separation in the Collaborative Process may benefit from the involvement of a family professional to work through underlying emotional issues that prevent the settlement of legal issues.
- The Collaborative Process is generally less adversarial. While parties are required to confront the same challenging issues, they do so through direct negotiations guided by professionals trained in resolving matters collaboratively through interest-based negotiation.
For more information on the Collaborative Process and determining whether such a process is the correct fit for your matter, contact Morrison Williams and ask to meet with a lawyer who is collaboratively trained.