Collaborative family law, as its name suggests, is a way of practicing law where the lawyers for both clients agree to assist them in resolving conflict using cooperative strategies rather than adversarial techniques and litigation. This commitment is reflected in an agreement between both lawyers and their respective clients which stipulates that if the settlement fails, the lawyers will withdraw from representation and not participate in litigation.
It is based on the idea that when availability of litigation is out of the picture, the parties are inspired to think outside the box and focus on the common ground instead of the differences. As such, parties are strongly motivated to reach a settlement. In the realm of collaborative family law, a lawyer is not neutral. The lawyer still acts in the best interest of the client, however, the lawyer is also an educator, legal resource for the client; more importantly, the lawyer encourages resolution through settlement negotiation.
The most important feature of collaborative family law is to negotiate at all times in good faith. Before the negotiations begin, the principles are reduced in writing and signed by both clients and their lawyers in a document called a participation agreement. As per the agreement, parties will engage in a non-adversarial manner using interest-based negotiation, neither party will take advantage of any errors made by the other, neither party will incur any debts or liabilities for which the other may be held responsible, neither party will dispose of any assets, alter their life or health insurance coverage, or make any other unilateral insurance coverage change during the process without the consent of the other, both parties will provide full and frank financial disclosure throughout.
It is important to understand that collaborative family law is not for every client. If the parties are highly adversarial and stuck in the win/lose mindset, they are not suitable candidates for collaborative family law. To participate in collaborative family law, the parties must demonstrate an acceptance of their separation, a willingness to manage their emotions, an interest in the other side’s well-being and a commitment to an honourable divorce process. Clients should also be aware that not every collaborative effort produces a settlement and there is a possibility that they may be required to rehire a new lawyer and take the matter to court later down the road should settlement fails. In that case, the time and money will have to be expended again. Clients should also be reminded that by participating in collaborative family law, clients do not forfeit their right to go to court, only to do so using their collaborative family lawyer.
Disclaimer: Use of this site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for non-profit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.Back