FAQs: Collaborative Family Law

Q: What Sort of People Are Good “Candidates” for Collaborative Family Law?

CFL is not right for everyone.

You should be aware of the fact that this process requires that the two affected parties work closely and collaboratively in order to resolve the issues stemming from the breakdown of their marriage. They are the sole individuals with the ability to direct the meetings and make all final determinations. Depending on the number of issues to be resolved, the parties may need to engage in numerous four-way meetings over a prolonged period of time.

There must be some element of amicability and respect between parties. CFL is not for every separating or divorcing couple. If marriage breakdown occurs as a result of adultery or abuse it may be very difficult for the parties to sit down together and collaboratively come up with solutions to the issues identified. There will often be feelings of animosity, fear or hostility between the two individuals which run counter to the tenets of CFL.

If you lack confidence in the ability of your spouse to be honest, then CFL is not the right choice for you.

You should, however, consider it if any of the following apply:

• you would like to resolve the issues in a civilized manner,
• you want to protect your children and yourself from the harm associated with litigation
• you would like to remain amicable with your spouse leaving open the possibility of achieving a friendship with him or her as well as maintaining the friendships of all those connected to you and your spouse through your social circle,
• you would like to take control of the decision-making in your situation as opposed to handing it over to a neutral third-party, and
• you would like to avoid the excess costs and time associated with litigation.

Q: What Is in the Typical Participation Agreement?

A typical Participation Agreement must contain general provisions relevant to the CFL process and the commitment made by each party to engage therein. This means that there will usually be provisions stipulating that CFL has been selected by each party as the method of dispute resolution and thus will require that they abide by certain guidelines for behavior.

Clauses dealing with confidentiality and exchange of information should be included to ensure the free-flow of information between parties and the confidence that it will not be used against them.

There should be provisions dealing with the courses of action available should the process fail or should a party wish to withdraw or change his or her legal representative.

Lastly, a section should be dedicated to the conclusion of the CFL process and the preparation and validation of the Separation Agreement to ensure its enforceability.

Q: What Happens if We Don’t Come to an Agreement?

If you do not come to an agreement then all hope is not lost and it may still not be necessary that you attend court.

Firstly, you can attempt to mediate the issues in dispute. You may find it easier to come to mutually acceptable resolution when there is a neutral third-party helping you along the way. Or, you may employ Med/Arb which is a novel form of alternative dispute resolution that may be less costly and timelier than litigation.

Essentially, Med/Arb allows parties to initially attempt to resolve the issues stemming from the breakdown of their relationship with mediation. In so doing they are given the opportunity to further discuss said issues in the presence of a neutral third-party who can attempt to guide them in the right direction while simultaneously offering suggestions.

If mediation proves to be unsuccessful, leaving all or some issues to be resolved, then the parties can transition into arbitration which is the form of dispute resolution which most closely resembles litigation as the parties relinquish ultimate decision-making authority and vest it in an arbitrator. It is recommended that the mediator used also be certified to act as an arbitrator, however, this is not necessary. You should be aware of the fact that engaging in mediation or Med/Arb prior to arbitration is not the only option available to you. You may simply choose to skip over said processes and jump straight into arbitration, however, it may be more costly for you to do so.

One more thing you should always keep in mind is that once the collaborative process fails and you decide to engage in an alternative form of dispute resolution the lawyers with whom you have been working may be forced to withdraw unless your Participation Agreement stipulates otherwise.

Q: What Role Does a Lawyer Play in the Collaborative Process?

The Collaborative Family Law process is extremely client-driven. This means that the spouses retain the ability to determine which issues will be discussed as well as the power to make all final decisions regarding said issues.

The collaborative lawyers play a secondary role in the process. They act as support or coaches offering advice to their clients when any legal issues arise. They ensure that the process stays balanced, positive and productive as the parties are guided towards the best possible settlement which maintains and promotes the spouses’ and children’s rights.

Q: Do “Collaborative Family Lawyers” Have Any Special Extra Education or Training?

Yes. Collaborative lawyers are required to complete training courses offered by the Ontario Collaborative Law Federation in order to become certified to practice CFL.

Training in this specialized process increases the parties’ chances of engaging in meaningful and successful discussions.

CFL requires that lawyers possess certain skills which will aid in guiding negotiations and managing conflict. These are not skills that one may acquire in law school or through practice, rather they must be taught and learned through the special training courses previously mentioned.

Q: We Want to Try and Divorce/Settle Out of Court Using the Collaborative Process. What Is Our First Step?

Your first step would be to each retain a lawyer who has completed the requisite training in Collaborative Family Law. In so doing, the lawyer can explain the process to you and provide information on what it entails.

If you and your spouse have already identified the issues you would like to collaborate on then your lawyer may advise you on which information (financial or other) must be collected in order to provide full disclosure to the other side. This, in turn, will allow for a quicker, efficient and truthful resolution of the issues.

Once you have contacted, retained and spoken to your lawyers, then they can correspond with one another and set up the first four-way meeting.

Q: Can We Make Legally Binding Decisions About Our Children (Custody, Access, Support) During This Process?

Yes. The goal of the collaborative process is to incorporate all decisions into a Separation Agreement.

If the Separation Agreement is in writing, dated, signed by the parties and witnessed then it becomes a valid, enforceable and binding contract between the parties. The court will honor and respect the agreement arrived at by the parties and in the case of a dispute or breach judges will usually defer to it.

However, if there is evidence of non-consent, duress, fraud or mistake as to the nature and quality of the agreement, and such is proven in court, then the contract becomes void and no longer binds either of the parties. Consequently, judges are granted the ability to make determinations regarding the issues in dispute and to set aside the Separation Agreement.

Q: What Is the Goal of Collaborative Family Law?

The goal of CFL is to allow parties, in the midst of a divorce or separation, to work collaboratively with each other, their lawyers and other third party specialists to reach a mutually acceptable resolution of the issues stemming from the breakdown of their marriage.

The resolutions are then incorporated into a valid and binding agreement.

CFL aims to avoid the adversarial and hostile nature of the litigation process and places all final decision-making authority in the hands of the affected parties who, realistically, are in the best possible position to make determinations regarding their own best interests as well as those of their children.

Q: I Have Never Heard of Collaborative Family Law. What Is It?

Collaborative Family Law is a relatively new form of alternative dispute resolution that is quicker and less costly than litigation. It was created by Stu Webb, a family lawyer based in Minneapolis, in the early 1990s.

Once two spouses have decided to resolve the issues stemming from their divorce by using CFL they musnt sign a Participation Agreement. The Participation Agreement states that they will not go to court nor will they threaten to go to court to resolve their disputes.

The clients engage in numerous four-way meetings until all issues have been determined and incorporated into an enforceable agreement. During these meetings the parties retain, at all times, ultimate control and decision-making authority, relying on their lawyers or third-party specialists (such as financial specialists) solely for advice or support.

If the parties are unable to come to an agreement and CFL fails, then their lawyers must withdraw from the case and neither they nor any member of their firm may represent the parties.

A final interesting aspect of CFL that is worth mentioning is that this process is premised on honesty, integrity, and respect between spouses who are encouraged to discuss their feelings and their hopes during the four-way meetings. This then promotes and maintains an amicable and non-hostile relationship between the parties who at the end of the CFL process can feel satisfied, relieved and fulfilled that everything was resolved in a quick, efficient and peaceful manner.