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Lerners LLP: Carolyn Lloyd

Family Law: frequently asked questions about collaborative practice

By Carolyn Lloyd

WHAT IS COLLABORATIVE FAMILY LAW?

Collaborative family law is defined by three key principles:

The voluntary and complete exchange of financial information;

The pledge not to take the matter to court by way of a participation agreement signed by both the lawyers and the parties;

A commitment to mutual respect and cooperation to achieve a resolution by way of a separation agreement or other domestic contract.

WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE PRACTICE AND TRADITIONAL NEGOTIATIONS?

A conventional separation or divorce process is based on adversarial principles, regardless of the lawyers and/or parties having the intention of being cooperative. Court is always in the background and the resulting conflicts can be damaging, even if the case isn't before a judge. Children are often the ones who bear the brunt of these conflicts.

The threat of bringing the matter to court is removed in the collaborative process. Collaborative practice is, by definition, a non-adversarial approach to dispute resolution. Your lawyers negotiate in good faith with the focus of achieving a lasting settlement. The reality of what would happen in court guides the collaborative negotiations, but more creativity is possible to achieve a workable and lasting solution for the clients' situations. Lawyers are present to give their clients independent legal advice, but their focus is on solutions, not on creating a greater divide between the separating spouses.

WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE PRACTICE AND MEDIATION?

During mediation, a neutral third party called the mediator assists you to negotiate and facilitate a settlement of the issues in dispute. The mediator cannot give you legal advice, nor can he or she be an advocate for either side. If you have lawyers, the lawyers may or may not be present at the mediation sessions. If the lawyers are not present, the parties can consult with them between sessions. If an agreement is reached, the mediator prepares a draft agreement for review, revision and approval by the lawyers.

Mediation is often the choice for separating couples with relatively low conflict who are able to negotiate, in the presence of a mediator, without their lawyers present. Collaborative practice may be appropriate for low, medium or even high conflict cases where there are significant trust issues. The presence and support of the lawyers, who are advocates with a view to resolution, assists in understanding what your rights are and assuring that the process is balanced. When an agreement is achieved, the lawyers draft the agreement for review, revision and approval for both parties prior to signing.

Both mediation and the collaborative family law process rely on voluntary and complete financial disclosure by the parties, and a commitment to resolution that will reflect the interests of both spouses. If mediation fails, you may choose to use your lawyer in litigation, if this is what you and your lawyer agreed. The collaborative participation agreement focuses on resolution, and the collaborative lawyers, as well as any other collaborative professionals involved, are disqualified from participating in litigation should the process fail. This is a disincentive to litigate and a strong incentive to work through all the issues to achieve a settlement.

Your choice of using mediation or the collaborative process should be made with professional advice.

WHAT IS A COLLABORATIVE TEAM?

A collaborative team is the group of professionals whom you choose to work with you to resolve the issues. If the issues are legal in nature only, then lawyers are likely enough to achieve a resolution in your case. If there are difficult emotional, financial or parenting issues, you may want the support of other collaborative professionals, or other professionals you wish to retain jointly to assist with your dispute. Such professionals might include a neutral child specialist to provide insight into the children's needs and concerns, to help establish positive parenting plans; a neutral financial specialist to assist with financial information, business issues and tax implications of the settlement; or a professional such as a social worker or psychologist to help the parties improve their communication, and manage current and future conflicts.

DOES THE COLLABORATIVE FAMILY LAW PROCESS MINIMIZE HOSTILITY?

The guiding principle of collaborative practice is respect. Collaborative family law lawyers are trained to communicate and facilitate an atmosphere of understanding and cooperation. Generally, the process unfolds with a series of settlement meetings with the lawyers and the parties present, in the spirit of open discussion. This will lessen the exchange of aggressive correspondence between lawyers and ensure that the parties understand what is happening in their case. A further settlement meeting is booked at the end of each settlement meeting, and this keeps the momentum of the matter towards a resolution. There will be difficult issues to resolve; however, the lawyers' task is to address and resolve the difficult issues, not just the straightforward ones.

You will find that the collaborative family law lawyers are able to communicate throughout the process, even if you cannot talk to your former spouse. Often in the adversarial process, lawyers don't communicate until a trial is approaching. Cooperation between the collaborative family law lawyers is a distinct advantage in achieving a positive settlement.

IS THE COLLABORATIVE FAMILY LAW PROCESS PRIVATE? IS IT FASTER THAN GOING TO COURT?

Collaborative family law is completely private. Settlement meetings are generally held in rotation between the lawyers' offices. The separation agreement is completely private. The only issue you cannot address privately is obtaining a divorce, which must be granted by a judge. I generally see my collaborative clients obtaining a divorce by joint application, which means they go to the courthouse together and avoid having a process server deliver a divorce application on their spouse, and save money on legal fees.

The collaborative process will be much faster than court as long as the parties commit to scheduling, attending and being prepared for settlement meetings. If one or both parties refuse to comply with full financial disclosure, that is a quick way to end the collaborative process and proceed with the adversarial, and public, court process.

An agreement reached through mutual involvement, creativity and problem-solving by both parties, as opposed to adversarial negotiations or the court process whereby a judge imposes the resolution, is more durable and far more likely to be followed in the future. Often if there is a reason for variation, parties will return to the collaborative process, or mediation, rather than going to court.

WHY SHOULD I CHOOSE COLLABORATIVE PRACTICE IF I HAVE A BUSINESS TO PROTECT?

Ontario law, as with other provinces, determines how assets are to be divided when a married couple separates. The law for property division for common-law couples is more complex but is developing rapidly, and obtaining up-to-date legal advice will be needed for relationships of cohabitation without marriage.

The law generally allows separating spouses to retain approximately equal shares of the assets accumulated during a marriage. The spouse with the higher net worth will make what is called an "equalization payment" to the other spouse.

If there is a business, it will have to be valued, and in some cases, divided in the settlement. During litigation, there are often two business valuations, and a large amount of time and effort is spent on having a judge decide at trial which value to use for the business.

The public nature of a court proceeding may damage the reputation of the business, and may have a negative impact on suppliers, clients and employees, thereby reducing the productivity and viability of the business. Details of the business become public and the parties lose control over the outcome.

The goal of the collaborative family law process is to keep a business intact during, and after a relationship breakdown. Ideally, a shareholders' agreement will define the process by which a spouse would exit the business, whether because of marriage breakdown or another cause. Divorcing shareholders may be required to sell their shares to the corporation or other shareholders. The parties in a collaborative case will jointly choose experts, such as a business valuator, tax advisor and corporate lawyer, to work together to preserve the business, which is often an essential source of income for the family, including the children.

Couples should view court as a last resort, especially when a business is involved. Judicial intervention through the often-lengthy court process may have long-lasting detrimental effects on the operation of your business.

HOW DO YOU ADDRESS A DEADLOCK OR IMPASSE IN THE COLLABORATIVE PROCESS?

Collaborative family law lawyers may struggle to address certain issues by non-adversarial negotiation. It is possible for the lawyers to choose a method to get past a certain impasse, such as by choosing an outside party to mediate one major issue, or potentially arbitrate the issue. Arbitration is similar to hiring your own, private judge to make a final, binding decision.

Sometimes a child psychologist will help by meeting with children to convey their wishes and preferences as part of the collaborative team. This helps shield the children from the dispute, but also gives them a voice and makes them feel heard, in a similar manner to the court process for children who are mature enough to have such involvement.

In my experience, the major impasses that seem like roadblocks to a collaborative settlement will be easier to resolve once other issues start to be resolved. It will be a building process of establishing trust, often where trust is initially completely lacking. Experienced collaborative family law lawyers know what the outcome will likely be in court and will use this as a frame of reference to achieve a positive settlement. It may take more time with the more significant types of roadblocks, such as those involving a corporation.

WHY SHOULD I CHOOSE COLLABORATIVE FAMILY LAW TO RESOLVE MY DISPUTE?

In a collaborative process, you will address exactly how your family works and how it will continue to work in separate homes. This may include your business, and you will keep everything private in a series of face-to-face meetings with your spouse and respective lawyers. A privacy clause in your agreement will mean that customers, staff, suppliers, investors, and your bank, will not lose confidence in your business. Running a business is challenging enough without the involvement of Family Court.

You will be driving the resolution of your issues in a manner acceptable to you, with your spouse having knowledge that you are not out to humiliate her or him in court. You will maintain privacy and control.

HOW DO I CONTACT AND RETAIN A COLLABORATIVE FAMILY LAW LAWYER?

The collaborative family law lawyers in London & Middlesex are listed under "CFL Professionals" at collabfamilylaw.com. You will need to find a collaborative law lawyer, and your spouse will need to retain his or her own collaborative family lawyer at a different law firm.

Paula Deveto is listed as a social worker and Family Counselor as a collaborative professional. She has a range of potential roles in your collaborative team.

Carolyn Lloyd, Partner and Practice Group Leader of Family Law at Lerners in London, is a collaborative family law lawyer and is the Chair of Collaborative Family Law of London & Middlesex. Erin Reid, Partner in Family Law at Lerners in London is a collaborative family law lawyer.

 

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