Collaborative Law

Brent Rathgeber-5The Collaborative Process is particularly effective in divorce and matrimonial proceedings, especially when the parties are motivated to retain a functional parenting relationship for the sake of their children.

Collaborative law looks a lot like mediation, except each party retains counsel specifically trained in the collaborative process and interest based negotiations.

In collaborative divorce, the parties do not go to court, except to secure final orders and judgments. The process is respectful and effective in resolving conflict when the parties are motivated to do so. Each party has their own lawyer trained in the collaborative process. If needed, other collaboratively trained professionals (coaches, financial planners, child psychologists) are brought into the process.

The parties, through a series of face to face meetings, focus on the issues not each other. The parties undertake full disclosure and exchange of relevant information. Brainstorming and outside of the box solutions are encouraged. The goal is to create as many options as possible and then find a solution that is mutually beneficial.

The parties, the lawyers, and other collaborative professionals all work together in an out of court non-adversarial process.

In family collaborative law, the parties sign a participation agreement. By doing so, they agree not to go to court, to disclose all relevant financial information and to proceed respectfully. Rather than drafting snotty letters between lawyers, the parties all work together and negotiate and communicate directly in a structured and facilitated settlement process.

Advantages of Collaborative Law:

  • Collaborative law offers clients a method of resolving their disputes respectfully and with integrity;
  • Offers the parties control over the timing of the meetings to suit their circumstances;
  • Clients actively participate in the resolution of their issues. As a result, once an agreement is reached, clients are more likely to respect and honour the terms;
  • Having counsel, provides clients with a sense of comfort with the process and the result;
  • Offers privacy and confidentiality, while requiring full disclosure of all relevant information;
  • Allows options tailored to the parties’ specific needs, outside of the box if appropriate;
  • Legal information is discussed openly and both parties hear the same information at the same time;
  • Problem solving techniques used in the collaborative process will assist the parties resolve conflict in the future;
  • The parties have committed to settle out of court. The process will save all parties time and money and each party is invested in seeing the process succeed rather than starting over with litigation.

Possible Disadvantages:

  • Not appropriate in high conflict cases (anger, grief or mental illness);
  • If the process breaks down, the parties much each retain new counsel and start over in the litigation process;
  • Collaborative law requires good faith and commitment to work through the issues. To succeed, the parties must be committed to a process with honesty and integrity and to work out matters directly and collaboratively. Many clients and some lawyers are simply not wired that way.

The litigation process is designed to redress past harms. Criminal law finds one guilty or not guilty of something that has occurred in the past. Tort Law determines if someone has been negligent and what amount of compensation is appropriate. Contract law will decide if there has been a breach of somebody’s contractual obligations and the resulting damages.

Family law is very different. When it comes to parenting, child support and spousal support, the focus MUST be on the future and not the past. The courts are limited in addressing the future because they cannot predict future needs of the children nor the future circumstances of the parents. The parties are in a much better position to address their future needs and interests and are therefore encouraged to attempt a collaborative process such as mediation or collaborative divorce.