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This chapter provides a brief introduction to the collaborative law process, a step-by-step overview of the process, and a description of the roles played by each of the team members. Introduction The breakdown of a marriage is usually an extraordinarily difficult time for each spouse. Contrary to the impression you might form from the rest of this website, a couple's legal difficulties are only one part of the whole experience of ending a long-term relationship. The purpose of the collaborative law process is to provide a non-adversarial way for each of the spouses to resolve their issues and emerge, at the end of the process, as emotionally- and psychologically-whole people. The traditional legal approach to divorce is adversarial by nature, and more often than not aggravates the interpersonal difficulties the parties experience relationship breaks down rather than helping them. An unique aspect of the collaborative law process is that once it starts, if a couple finds themselves unable to continue, the terms of their collaborative law agreeement will require the spouses to fire their lawyers and obtain new lawyers to represent them in court. As you can imagine, this is a powerful financial reason not to stop the process! Not every couple is, of course, suited to the collaborative law approach. This approach require honesty and good faith, both to oneself and towards each other. Sometimes the breakdown of a marriage is so full of anger and bitterness that no mediated approach will work. Collaborative law is rather warm and fuzzy; if the willingness to use and embrace the process is not shared by both parties, it simply will not work. Back to the top of this chapter. Overview This segment provides a generalized look at the collaborative law process. Since this process is very much tailored to the unique circumstances of each couple, their preferences and those of their lawyers, you should take the following with a grain of salt: it may not represent how your collaborative lawyer or you will prefer to do things. Finding a Lawyer The first step is for each spouse to find and hire a lawyer. You should look for a lawyer experienced in collaborative law, or at least one who is open to the idea — most lawyers who practice collaborative law will expressly describe themselves as collaborative lawyers in their stationary and promotional materials. The lawyers will then explain the collaborative law process to their respective clients, and then contact each other to begin the preparation of a collaborative law Participation Agreement. The Participation Agreement The parties and their lawyers will enter into a written agreement that commits them to work together using non-adversarial problem-solving techniques and cooperative strategies to negotiate a fair settlement without going to court. The agreement will contain a number of important terms which are very important to understand. Among other things, most Participation Agreements will provide that:
Professional Advisors The parties and their lawyers then select the people who will be a part of their team (see below), their divorce coaches, the child specialist, if there are children involved, and their financial advisors. These professionals are to be neutral in their approach, and are not hired to represent either party. Rather, their role is to help the process along by providing obective options and opinions about the subjects at issue. Disclosure The team then begins the process of making full disclosure of all information relevant to the issues between the spouses. This is process is not a poker game, with each spouse bluffing the other and whatnot, this process requires absolute and unswerving honesty. Each spouse provides their information to the other on the understanding that the information — except for legal documents like Financial Statements — and the content of the negotiations will never be used in court at a trial and will remain private and confidential. Collaborative Negotiation Once full disclosure has been made, the parties then begin to negotiate the terms of a settlement, relying on the advice and input of their respective lawyers and the other team members to create, hopefully, a "win-win" resolution. You can expect that this will be a process of mutual compromise, and that neither of you will wind up with an agreement which reflects your original positions! You may want to have a look at the segment "Tips for Successful Mediation" in the previous chapter, for some basic information about communications skills that can be helpful during the negotiation process. Along the way, depending on the nature of the issues, one or more interim agreements may be reached. These are not meant to be a final determination of the issues, rather they are temporary, stop-gap issues designed to deal with issues like the sale of the family home if money is needed, the parties' time with the children over holidays, and so forth. These interim agreements will fall by the wayside when a final agreement is reached. The Final Agreeement The terms of the resolution are then put into either a formal separation agreement or are drafted as an order that the parties will ask the court to make by consent. Sample Documents The link below will open a sample Participation Agreement in a new window. You will require Adobe Acrobat Reader to view this file, a free program available for download at Adobe's website. In this sample, our fictitious parties, Jane Doe and John Doe, are entering into a Participation Agreement with their lawyers, Alice Smith and Sylvia Black. This sample document is just that: a sample. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation nor may it reflect the agreement you will enter into if you chose the collaborative law process. Use it as a reference only. Back to the top of this chapter. The Team The collaborative law team is made up of psychological counsellors ("divorce coaches"), family law lawyers, a "financial specialist" and a "child specialist" who work together with the spouses and their children. The degree to which each of these types of professional may become involved will depend on the particular circumstances of each couple. For some couples, the child specialist will become a key member, for others it may be their divorce coaches. The Case Manager This person is usually one of the divorce coaches. His or her job is to keep all of the team members informed of the team's progress and to keep everyone informed of any fresh developments. The Lawyers As in traditional legal circumstances, each spouse's lawyer is committed to protecting his or her client's needs and interests. The lawyers advise their clients on their particular legal rights and obligations, and provide their clients with information about the law, and likely long- and short-term results of any particular course of action. The Divorce Coaches The divorce coaches are pscyhological counsellors. They help guide their clients through emotional turbulence of the breakdown of a relationship and assist each party in maintaining an objective view of the situation. They may also help their clients develop their views on the issues and help them learn to communicate about difficult subjects. The Financial Advisor This person is a third-party to the process, someone without any duty to one spouse or the other and who is able to look at things objectively and impartially. His or her job is to present options to help the parties deal with the financial aspects of their relationship, in terms of both the present and the future in the long-term. The Child Specialist This person's job is to represent the interests of the children as a neutral third party, without a duty to either spouse. While all the members of the process are concerned about the best interests of the children, the purposes of the child specialist are to ensure that the children remain a primary concern, that the parties develop a proper parenting plan, and to help identify and address concerns regarding the children's future care. Back to the top of this chapter. Site Navigation
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