Q.  What is Collaborative Law (or Collaborative Practice)?

A.  Collaborative Law is a Harvard-inspired and evolved negotiation method where the parties and their lawyers agree to make a good faith attempt to address everyone’s legal, financial, and emotional needs. Collaborative Law in Toronto allows the couple to keep control of the process and the outcomes, rather than relinquishing decision making to an arbitrator or a judge.

Other professionals are available to the team to facilitate the financial disclosure or the negotiation of the parenting plan.

Collaborative professionals are encouraged to model good behaviour and promote open communication and respect throughout the process, even when there is disagreement.

At the end of the process, if a deal is reached, the lawyers will work together to build a legally binding Separation Agreement that will reflect what you have created for your family.

Participants to Collaborative Practice negotiations have generally reported a high degree of satisfaction with the system according to surveys conducted by the International Academy of Collaborative Professionals.

Q.  What is interest-based negotiation?

A.  The Harvard-inspired “interest-based negotiation” model used in Collaborative Practice fosters legal agreements that respect the goals and interests of both parties.

All the other family law systems use “positional bargaining” which tends to polarize people and make the process more adversarial. It’s hard to find solutions when people’s “positions” are at odds, and the solutions tend to be more mediocre and less creative, such as cutting the difference in half.

Consider a situation where the issue in dispute has to do with the house, and the parties’ “positions” are:

• Parent A insists on keeping the house
• Parent B wants to sell the house

Collaborative professionals will go beyond the positions of “I want to keep the house” and “I want to sell the house”. They will ask several questions to understand why the parties want what they want.

It may be that Parent A wants to retain the house to have a place in the same neighbourhood for the children to grow up in after separation. But for Parent B, it may be that money is needed from the sale of the house to be able to afford a residence in the same neighbourhood, so that the kids can really have a joint parenting schedule.

Once the reasons behind a “position” become clear, partners tend to be more open to alternative solutions.

As an example, the solution could look like this: sell the family residence and use the proceeds to buy two smaller houses close to each other so that both spouses can have a beautiful home for the children; or let Spouse A keep the house but accept reduced support payments from Spouse B so that Spouse B can afford a house in the same neighborhood. Either way, both win, and so do the children.

If the parties had been in more adversarial systems, the expensive legal fees may have made either of these solutions impossible, leaving the family financially depleted, the possibility of buying two houses in the current neighborhood less achievable, the sale of the house probably inevitable, and the children worst off.

“Interest– based” negotiation is designed to create win– win situations.

When the interests of both parties are known, solutions that are complementary to both can be found. Compromise becomes less important and both parties are generally more satisfied with the solution on a long term basis. It increases the chances of improving the parties’ relationship after the process is over.

Q.  Will I get the same financial disclosure as in other legal systems?

A.  Yes. Not only do parties agree to provide full financial disclosure; they also agree to disclose all facts that are relevant to the decision making process.

In Court, parties frequently spend a fortune chasing after disclosure from the other side.

Q.  Is Collaborative Practice Faster?

A.  Each situation presents their unique challenges. However, Collaborative Practice is often more efficient.

It is the use of effective problem-solving techniques, a commitment to full disclosure, and good faith negotiations that make the process efficient.

Cases settled using Collaborative Practice generally take less time than cases that go to Court.

Q.  My lawyer is not “Collaborative” but says to be “collaborative minded”. Is this the same thing as Collaborative Practice?

A.  No. Only professionals who took the specialized interest-based negotiation and communication training can offer Collaborative services. The structure, the specific steps and the negotiation method used in Collaborative Practice make it a special process.

Collaborative Process starts with the signing of a contract called a Participation Agreement, which contains the rules that define Collaborative Law:

• Full financial disclosure
• Full disclosure of relevant facts
• Good faith negotiations
• A commitment to resolving out of court
• The lawyers commit to helping keep the file out of court and to withdraw from the file if the case does not resolve and the family has to go to court

Signing the Participation Agreement really brings reality to the commitment to this good– faith process.

In other legal systems, there are no rules of engagement. Lawyers and clients can threaten to take you to court or they can employ any other tactics they deem necessary to win. It’s completely different.

Q.  Why can’t Collaborative lawyers take the file to Court if negotiations fail?

A.  An important feature of Collaborative Law is that the lawyers must withdraw from the case if the parties cannot resolve their issues and have to go to Court.

This feature fosters a more comfortable and trusting environment during the negotiations because clients know that lawyers are not busy mounting a court case against them but rather working hard to find solutions. It indicates that the professionals are committed to staying with a problem until a solution is found.

Since there is a 90% success rate in cases of Collaborative law in Toronto, the possibility of going to Court and having to change lawyers is low in any event.

Nathalie Boutet
Boutet Family Law

Nathalie Boutet is a skilled Collaborative Family Law Lawyer.
To learn more about Nathalie click http://divorceangels.ca/vendor/nathalie-boutet-2/?r=7607