How does the collaborative negotiation work?
The collaborative negotiation is governed by three key principles:
- The voluntary and complete exchange of financial information;
- The pledge not to take the matter to court by way of a participation agreement signed by both the lawyers and the parties;
- A commitment to mutual respect and cooperation to achieve a resolution by way of a separation agreement or other domestic contract.
In the collaborative negotiation, each party must be represented by their own lawyer – both lawyers should be trained in collaborative negotiation to ensure that the process is as effective as possible. If parenting, financial experts, valuators or any other resources are needed, they are retained by both sides and are instructed to act for both parties. In the context of a collaborative negotiation these experts are referred to as “neutrals”. With the assistance of their respective lawyers, and any necessary neutrals, the parties are given an opportunity to craft solutions that are tailored to their needs and goals.
Collaborative family law lawyers are trained to communicate and facilitate an atmosphere of understanding and cooperation. Generally, the process unfolds with a series of settlement meetings with the lawyers and the parties present, in the spirit of open discussion. This will lessen the exchange of aggressive correspondence between lawyers and ensure that the parties understand what is happening in their case. A further settlement meeting is booked at the end of each settlement meeting, and this keeps the momentum of the matter towards a resolution.
If at any time either party decides that this is not for them, and that want to go to court, then new lawyers will have to be hired because the lawyers used in the collaborative negotiation will not be able to represent either party in the court proceeding.
How does the collaborative negotiation differ from traditional litigation?
The following chart which provides a side by side comparison of the collaborative approach and litigation was taken from the Collaborative Practice York Region web page (www.yorkcollaborativepractice.com) and is reproduced here with their permission.
- Each party must be represented by a lawyer who has had specialized training in the collaborative negotiation.
- The lawyers and clients each sign a Participation Agreement which requires that they adhere to collaborative principles.
- The parties, their lawyers and other collaborative professionals work as a cooperative team to reach the best possible resolution.
- The collaborative principles stress that settlement discussions must take place in an atmosphere in which there is mutual respect. The collaborative lawyer’s training assists in maintaining this atmosphere.
- Collaborative professionals such as accountants, financial planners, child specialists or coaches may be retained by the parties jointly to assist them in reaching a resolution.
- The parties conduct the settlement discussions. Their lawyers’ role is to provide legal advice to their client and to generally support and assist the client through the process.
- The parties are in control of the process. They can take as much or as little time as they need to reach a resolution.
- Parties cooperate fully in obtaining and sharing all financial and other important information.
- The process reduces conflict and maintains good faith which increases the likelihood that parents can cooperate in the parenting of their children and reach solutions which promote their children’s best interests.
- There are no court papers to be prepared and no court hearings.
- If settlement is not reached, the lawyers must withdraw and neither the lawyers nor any member of their respective firms may represent the clients in subsequent litigation.
Each party is typically represented by a lawyer.
- The goals and expectations of each lawyer and each client in terms of the process and settlement may be very different. One side may be more committed to settlement and the other to litigation which can lead to a disconnect in terms of resolution.
- The parties and their lawyers are opposed in interest; the primary goal is to obtain the maximum result possible often to the detriment of long-term relationships.
- The nature of the litigation model can result in each side making exaggerated and derogatory allegations against the other party which can have damaging long-term effects on the parties’ relationship with each other and with their children.
- Professionals (family or financial) can be retained by one side to advance their case; occasionally they are jointly retained.
- The lawyer’s role is to provide legal advice. Generally, the lawyer will control the settlement negotiations although he or she will have instructions for settlement from his/her client. In this model, lawyers are conscious of crafting a settlement that reflects legal principles.
- Although most parties who adopt the litigation model attempt settlement, the court has more influence over the decision-making process. The court’s schedule and rules significantly influence the speed with which a resolution can take place.
- The rules of court require that parties make full financial disclosure, yet these rules can be difficult and expensive to enforce.
- The process can exacerbate an existing conflict and can destroy what goodwill might have previously existed between parties.
- If parties opt to proceed to court, there is typically a substantial amount of paperwork that must be completed. There may be several court hearings in which the party and his/her lawyer must remain at court for several hours for only a brief appearance in front of a judge.
- The lawyers may represent clients throughout all aspects of the process.
What are some advantages of the collaborative negotiation?
Both sides are represented by counsel who are committed to negotiating a settlement.
The use of the collaborative negotiation seeks to find and build on consensus between the parties thereby minimizing the stressors and conflict between them.
In the collaborative negotiation parties are encouraged to explore the “why” of each other’s position, concerns and objectives, thereby allowing the parties to craft solutions that best fit their unique situations.
Agreements made using the collaborative negotiation are more likely to be respected and followed by both sides without need to resort to the Courts to order compliance.
The collaborative negotiation allows for the couple to jointly access the knowledge and assistance of the same experts referred to as “neutrals”, thereby avoiding a “war or experts”.
The collaborative negotiation and the agreements reached, are private and do not form part of the court records or court files.
We have decided to use the collaborative negotiation, now what?
You will both need to retain a collaboratively trained lawyer. The collaboratively trained family lawyers in York Region can be found at www.yorkcollaborativepractice.com.