One would think that, after more than 30 years of practicing family law, I have seen it all. I have seen a lot – trust me – and very little surprises me anymore, but I have not seen it all. A growing trend that I have seen of late is the expectation of many that the court system operates similarly to a “big box store” or a “ deli counter” experience. Sadly, nothing can be farther from the truth. One cannot go to a family court counter in any courthouse, take a number, and ask the court to grant them decision-making authority, parenting time, child support, or any other relief, as they wait. If there is one thing the courts offer clients, it’s the opportunity to learn to be patient.

But this is not something new. The courts continue to get backlogged, and for a multitude of goods reasons, but that is not the purpose of this blog. Rather, I wanted to share with you another option, one that is not often used or considered by the parties. It is called the “collaborative family law process” and it has been around for about 40 years or so. Over the last few years, it has undergone a bit of a change from its initial version, so if you have heard of it, considered this “Collaborative Law 2.0.”

Please remember that a really good lawyer will have “tools in their toolbox” to fit your circumstances, such as the ability to negotiate agreements out of court, proceed to mediation, engage in family law arbitration, and of course, traditional litigation. There are plus and minuses to engaging in a collaborative separation/divorce, and I will explain those to you in this blog. It may be for you, or it may not. But one does not know what one does not know, and so as a lawyer who has recently completed training and certification as a collaborative family law lawyer, I simply want to make you aware of the option.

What is Collaborative Family Law?

There is no singularly-accepted definition, but at its core, collaborative family law is a method of resolving family law disputes involving the parties and a collaboration of other professionals, such as lawyers, other legal professionals (such as parenting planners, coordinators, etc.), financial professionals, mental healthcare professionals, and any other professionals, who are part of taking an overall “team approach” to helping the parties craft a longstanding and binding family law agreement.

Who is Involved in the Collaborative Family Law Process?

As set out above, and as differentiated from other alternative disputes methods, the parties make use a “team of professionals” who help them arrive at a final agreement. Depending upon the specific needs of the parties, it includes:

• the 2 parties to the matter (they are the co-captains of the team)
• the 2 lawyers, one for each party
• if needed, family law professionals, with expertise in parenting planning/coordination
• if needed, financial experts, such as a pension valuator, an accountant, a business valuator, etc.
• if needed, healthcare specialists, such as a counsellor, a psychologist, etc.
• if needed, any other professionals to address the specific needs of the parties/the children

Not all team members are needed at all stages of the process. Sometimes, the involvement of the professionals is an “in-an-out” process, and are involved only as far/long as they are needed to help the parties arrive at binding terms regarding the issues in play

What is the Cost of the Collaborative Family Law Process?

This is the hardest question to answer, and unfortunately, the best answer I can offer is “it depends.” The lawyers usually charge an hourly rate, but the other professionals, depending upon the level and commitment of their involvement, can charge either their hourly rate or a fixed rate. How many hours or what exact cost is impossible to determine, as the parties themselves will dictate the level of cooperation in reaching a binding agreement. The quicker it is, the less expensive it will be. The longer it takes, the more expensive it will be. This is consistent with all kinds of alternative dispute resolutions, as well as with the traditional court litigation process.

The costs of all the professional services are usually shared equally by the parties, i.e. the costs are pooled and then equally divided between the parties. However, at the outset, the parties can agree that costs are shared proportionate to the parties’ income levels, especially where there is a significant disparity.

Some lawyers/professionals will ask for a retainer and, once depleted, ask for a “fill-up” to continue their service. Others may receive an initial retainer and seek payment once the matter is completed. And again, others will simply charge a pay-as-you-go fee.

What is the Time Frame in Resolving a Dispute the Collaborative Family Law Process?

As with cost, the amount of time it will take will depend upon the parties and their ability to work towards a consensus with the help of their team of professionals. The more collaborative the parties are, the quicker it will take. The less collaborative the parties, the longer it will take.

I usually advise clients that, in the ADR matters I can help them with (negotiations, mediation, and collaboration), they are the authors of their own settlements, as opposed to have a judge or arbitrator impose a position on them. If such ADR agreements take longer to resolve – and this is a “BIG IF” – the parties are generally happier with the results, and thus the agreements are generally longer-lasting, as the parties are less likely to need to revisit the matter in the future.

What Else is Different About the Collaborative Family Law Process?

Unlike other methods of dispute resolution:

• the lawyers must take a read of the emotional temperature of the parties and determine if their client is in the right emotional state to be collaborative
• the parties must each have their own lawyer (we do not deal with self represented clients)
• although lawyer/client confidentiality is preserved, the parties share key information with the professionals on the team, and where/when necessary, they share this information with the team members
• if the parties reach an impasse, the lawyers for each party agree that they will not represent the client should the matter proceed to litigation – in essence, if they can’t settle and decide to go to court, the clients must start fresh with new lawyers, or choose to represent themselves

How do I Engage in the Collaborative Family Law Process?

When a client meets with me for the first time, they might ask me if I have collaborative training and whether it is right for them and their case. This does not happen that often, as most clients are overwhelmed with the emotional toll of a recent separation and/or divorce, and may not come as prepared as they would like to. More often than not, the lawyer will be the one who raises the issue of collaborative law.

But before doing so, I (and any other good lawyer) will conduct an inquiry into the background of the parties, the case, the issues, and then present the option on what is the best process to help the client resolve their dispute. The decision on which process to select – negotiation, mediation, collaboration, arbitration or litigation – will always rest with the client, but it will often depend on the lawyer you choose. Some lawyers are collaborative in nature, while others are not. Some lawyers have the necessary collaborative family law training, while others do not.

Personally, I see my collaborative law training as a “tool in my took box” that I can offer a client, if the facts merit it. I say that last part to emphasize that the fact situation that a client presents me with will help me decide what dispute resolution method I will recommend. If the parties are extremely combative and the matter is on the verge of having the police and the local child protection agency intervene, then a collaborative process is not likely to succeed. Generally speaking, I like resolving all of my client cases out of court, and with my training, I will offer it clients who are willing to consider this method. Proceeding to court is always the last option but sadly, in a few cases, it is their only option.

A note of caution. For clients who are on a legal aid certificate through Legal Aid Ontario (LAO), they do not fund collaborative family law matters. They will, however, allow their clients to try and resolve their disputes through negotiation, mediation, and, as a last resort, litigation.

How do I Exit the Collaborative Family Law Process?

Like any professional relationship, it takes two to tango, but only one to end the dance. If a client is in a collaborative law process and is finding it too costly, too time-consuming, too involved, or simply too “different” than what they expected, the client can decide the exit the process.

However, as I mentioned earlier, unlike other dispute resolution processes, a staple of the collaborative process is to have the parties sign an “memorandum of understanding” at the beginning of the process where they agree to the ground rules. One of those rules is that if a settlement is not reached, both lawyers are effectively unable to continue representing their client in any future dispute resolution process. This is a strong motivation for parties to buy-in to the collaborative process, to work through a difficult spot in the discussion and negotiation of the dispute, one that might otherwise see a client given up and go elsewhere, but for this stipulation.

And just like some clients decide the process is no longer for them, the lawyer can do likewise, although the reasons for doing so are more likely to involve a loss of confidence in the client, a loss of confidence in the process, a conflict of interest develops, a material misrepresentation is discovered, or an ethical dilemma present itself that cannot be resolved in accordance with the lawyer’s professional duties. The list is not exhaustive.

Once again, a word or two of warning. No matter the reason for exiting the collaborative process, the lawyer will likely retain all monies the client has already paid them, even if there is no finished product for the client. That client can “substitute” a new lawyer, but only if the team accepts them. As well, be mindful that some ulterior-motived parties may decide to end the collaboration process, just to prevent a resolution that they may now have second thoughts about. It is not likely to happen, but it something to be mindful of. I have had a situation in a non-collaborative setting where a potential client wanted to meet with me and consult with me only to prevent their former/estranged partner or spouse from hiring me first. Once again, its rare, but it happens.

Conclusion

As with all my other blogs, this one is not a comprehensive overview of the topic. I barely scratched the surface of introducing the topic of the collaborative family law process. But I wanted to present the reader of this blog with the hope/possibility that there are other ways of resolving their family law dispute, aside from the traditional method of going to court and letting a judge decide your fate, and the fate of your family.

I like to believe that clients want to be the authors of their own good fortunes, whenever the circumstances allow them to do so. Many of us have bosses in our working lives, and they tell us what to do and when to do it. So, within the collaborative family law process, you and your former spouse/partner can decide your own fates, and determine what is best for you and your family, rather than having another “boss” (under the guise of a judge or arbitrator) do so. By engaging in the collaborative process, you are acknowledging that although the relationship is over, the respect and dignity of the family unit, and each member therein, is preserved.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.