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Collaborative Law - FAQ
What is Collaborative Law?
The short version: Collaborative law is a method of dispute resolution for resolving issues that are between individuals such as a married couple going through separation, a family trying to distribute an estate, or business transactions that are not going smoothly. Both clients retain separate, specially-trained lawyers whose purpose is to represent his or her client in the client’s best interests. The process is structured to resolve the issues fairly and equitably without either going to court or threatening to do so.
Why might one choose Collaborative Law over Mediation?
In mediation, the participants negotiate for themselves with a neutral third party helping to guide the discussions. While the mediator may give legal information to the participants, he or she may not give legal advice to either. Further, some people, for various reasons, are not comfortable negotiating on their own behalf. For example, there may be an imbalance of power between the parties. Moreover, usually these disputes involve an emotional element, and/or vulnerability concerns, where one party may make concessions or fasil to speak up for themselves. In collaborative law, the lawyers take the lead in the negotiations.
Is Collaborative Law the best choice for me?
It isn’t for every client (or every lawyer), but it is well worth considering if some or all of the following are true for you:
(a) You want a civilized, rational discussion and resolution of the issues;
(b) You would like to keep open the possibility of a viable working relationship with the other party;
(c) You and your partner have children together and you want the best arrangement possible for the children and parenting;
(d) You want to protect your children from the harm and damage that can occur with litigation;
(e) You have ethical or spiritual beliefs that place high value on taking personal responsibility for handling conflicts with integrity;
(f) You value independence and autonomous decision making; you want to have control over the decision and do not want to hand over decisions about your finances and parenting arrangements to a stranger (i.e. a judge);
(g) You recognize the restricted and often unpredictable range of outcomes and “rough justice” generally available in the public court system and want a more creative and individualized range of choices available to you and your spouse or partner for resolving the issues.
Why is Collaborative Law such an effective settlement process?
Collaborative lawyers work together with the lawyers for the other side as a partner in a problem-solving process. The litigation approach, the win at all costs attitude, depletes your resources both emotionally and financially quite quickly and is also very unpredictable. In Collaborative Law you replace that with a methodology that is focused on the best solution for all parties involved. That said, Collaborative lawyers are still completely dedicated to helping their clients achieve the highest possible return for their clients in their settlement. However, Collaborative lawyers do not act as agitators, instigators or use inflammatory methods to pressure and intimidate the other parties. Nor do they take advantage of mistakes made by the other side. They encourage the highest good-faith problem-solving approach from their own clients and themselves, and they stake their own professional integrity on delivering that, in any collaborative representation that they participate in. Collaborative law offers the potential for creative problem solving that arises when two lawyers are pulling in the same direction to solve the same list of problems. Lawyers are natural problem solvers; however, in conventional litigation, they tend to pull in opposite directions. Collaborative lawyers succeed when they find solutions to their own clients’ problems combined with constructive ways of addressing the other party’s concerns that are also satisfactory to their client.
What kind of information and documents are available in the Collaborative Law process?
Detailed and complete disclosure is required. Both parties sign a binding agreement to disclose all documents and information that relate to the issues, and to do so early, fully and voluntarily. Hiding documents and stonewalling are not permitted.
What happens if one side or the other does hide documents or is dishonest in some other way, misusing the Collaborative Law process to take advantage of the other party?
This could happen. (It also can, and does, happen more frequently in litigation) What is different about collaborative law is that the collaborative law agreement requires the lawyer to withdraw if the client is being less than fully honest, or participating with less than good faith. For instance, if documents are altered or withheld, or if a client is deliberately delaying matters for economic or other gain, the lawyers have promised in advance that they will withdraw, discontinuing representation of the client.
How do I know whether it is safe for me to work in the Collaborative Law process?
This process does not guarantee that every asset or every bit of income will be disclosed, any more than the conventional litigation process can guarantee you that. In the end, a dishonest person who works hard to conceal money can sometimes succeed, because the time and expense involved in investigating concealed assets can be high and the results uncertain. Remember, you are probably the best judge of your spouse’s honesty in these matters.
Most lawyers will advise clients that Court should always be the last resort. When direct negotiations are not likely to succeed, one alternative is Mediation.
Mediation offers a process to people involved in a dispute to meet with an independent, neutral third party to discuss the problem, their interests and potential solutions. Mediation allows parties the opportunity to participate and to jointly craft a solution that is tailored their individual circumstances. No one imposes a decision or makes any determination as to “right” or “wrong”. Each party has the opportunity to express their concerns, tell their stories and attempt to work out an agreement.
Mediation is more flexible, expeditious and cost-effective than litigation. Mediation is common-place in all types of disputes, including family, business, estates, construction, employment and workplace. Many contracts and agreements now include a clause that requires the parties to mediate a dispute prior to resorting to litigation. People are now seeing that litigation should be used only as a last resort if and when all reasonable, less expensive and more expeditious avenues are exhausted.
There are some fairly standard process steps that mediations go through. Parties should ensure that they understand the process and they know what to expect before they attend the mediation. Chances of a successful mediation, of resolving the dispute or at least resolving some of the issues between the parties, are enhanced by taking the time to prepare for mediation. Knowing some tips for effective mediation will also enhance the effectiveness of the mediation.
The Role of the Mediator
The mediator facilitates a discussion between the parties to enable them to find a solution to the dispute. The mediator is a neutral third party; and is not a decision maker in the process. The mediator’s role is to ensure that everyone has the opportunity to talk, voice their concerns and their interests and participate in brainstorming solutions.
The mediator cannot impose a settlement or decide the case; the mediator is not a judge or an arbitrator. The mediator’s role is to help the parties create their own solution to the dispute. Agreements reached through mediation are more likely to be respected by the parties as the parties have entered into it willingly, rather than having it imposed upon them by a court.
A mediator is an independent, trained facilitator. He or she facilitates the discussion between the parties to ensure all conversation is focused on solutions and options for resolution. Mediation can occur between the parties alone or the parties can bring their counsel to have lawyer-assisted mediation. Parties can agree to mediate on only one or two specific issues, or on all issues. The mediator’s role is to facilitate the dialogue between the parties, and to assist the parties in reaching agreement on their own resolutions. The mediator will never impose a solution; however, the mediator may let one party or the other or both, if they are being too extreme or too unrealistic in their expectations.
As a trained and experienced mediator, I maintain a neutral, independent and impartial role. I also ensure that the dialogue between the parties is open, honest, respectful, future-focused and productive in that it is directed to the issues and resolutions. Once an agreement is reached, that agreement is transferred onto paper and signed by the parties with their lawyers.
Mediation can be an inexpensive method to resolve outstanding issues. There is no way to predict how long mediation will take; it depends on the circumstances of the parties, their personalities and the number of issues and concerns. However, with that in mind, there is also no way to predict how long negotiations or court applications will take to reach resolution or the total cost. Mediation is usually a faster and less expensive approach to resolving disputes; and it has the bonus of being very economical when compared to the number of steps and total legal cost involved in going to a trial.
Some of the advantages that can be realized by mediation over court applications and lawyer-assisted negotiations are:
Costs are usually lower and shared equally (for example, with lawyer-assisted negotiations or court applications – each of you pay your lawyer each time the lawyers talk to each other and then talk to you; with mediation you are paying one mediator, and you are splitting that cost; and, you talk directly to each other, so the total time to get a message and reply is also significantly shortened);
You are able to arrive at
tailor-made agreements that you designed and that meet your specific needs;
The Agreement is more likely to be
respected by both parties, because you were involved in creating the Agreement (as opposed to a judge’s order that neither party really wanted);
The mediation process can proceed as quickly as you like it to and as soon as the mediator is available; there is no waiting for judges, court dates, lawyer’s schedules, etc.
You are able to preserve your privacy; if you make court applications, and have a court judgment, that is on the public record and anyone can seek it out and read it.
A Parenting Plan is an agreement that sets out a schedule for parenting time and living arrangements for the children, it sets out protocol and systems of communication and problem-solving when issues arise. It is customized to what your family and your children need; it can be as specific or as general you require. You can have very rigid dates and times, or it can be more open and flexible, or it can be a combination of set dates and times and open flexibility for added times.
It can cover areas such as: decision-making in specific areas, communication and mutual decision-making processes, transportation and exchanges, annual vacations, school breaks, long weekends, physical and mental health care, social activities, extra-curricular activities, contact with relatives and other people, discipline and routines, education, schools, religion, roles of new significant others, and dispute resolution process.
A parenting plan can be mutually agreed to between both parents and confirmed in writing. If parents are having difficulty reaching agreement, they can use a mediator to work out the details, or ask their lawyers to craft a parenting plan. A Parenting Coordinator is a specially trained lawyer and/or mediator who can assist parents to get through impasse and break down communication barriers to reach an agreement.
You can also ask the parenting coordinator to act as a arbitrator, where if an agreement cannot be reached, the parenting coordinator makes a ruling, just like a judge, and it becomes a binding order. There are many advantages to using a parenting coordinator over going to court, first it is a much quicker result, as there are no time delays waiting for courtrooms and judges to be available for hearings and trials, it is much less expensive, but most importantly, you spend time with your parenting coordinator discussing the issues, what you want, what you believe the children need and the parenting coordinator gets to know each of you and the children. Whereas a judge simply hears evidence through a method that is laced with procedure and technicalities and really does not get to know anything about you or the children.
If you have any questions about parenting coordination, please contact us to discuss