As delays in the Canadian court system worsen, clients and legal professionals are looking frequently for opportunities for resolution outside the court system. In family court, waiting for a 20 to 60-minute hearing at Special Chambers at the Court of Queen’s Bench or waiting several years for a trial is common.
Alternative Dispute Resolution (ADR) processes settle disputes outside court. I have previously written two articles on the topic of Mediation (here and here); this article will focus on Collaborative Family Law.
Collaborative Family Law was founded by a lawyer named Stuart Webb in the early 1990s in Minneapolis, Minnesota. After litigating for several years, Stuart found himself increasingly dissatisfied with the obstacles and frustrations that come with resolving family law issues in the courtroom. Stuart decided at that point that he would no longer act for clients seeking to resolve their issues in court; instead, he would assist them solely with negotiating and settling their disputes outside the courtroom. If negotiations broke down and clients were unable to reach a settlement, Stuart would then refer them to another lawyer specializing in litigation. Other lawyers found his idea intriguing and soon followed suit; in fact, Medicine Hat, Alberta, was one of the earliest cities to take advantage of this new method. Collaborative Family Law has only grown in popularity since then with thousands of lawyers throughout the globe choosing to follow in Stuart’s footsteps.
Collaborative Family Law is an ADR process by which the parties work together to resolve their legal issues outside of the courtroom with the assistance of their registered Collaborative lawyers and other team members. After an initial consultation and preparatory meeting with their own respective lawyers, clients will then meet together in a series of face-to-face 4-way meetings with their Collaborative lawyers. The meeting agendas, topics for discussion, and the order in which they are addressed are set by the clients according to their own particular needs and circumstances. All of the substantial issues are discussed in the 4-way meetings with all parties present – communication outside of the meetings is typically restricted to dealing with any procedural issues that may arise. This promotes openness and transparency between the parties and allows them to fully engage in honest, good-faith negotiations. Throughout the discussions, the Collaborative lawyers will provide education and advice on the law and how a court may decide on a particularly contentious issue between the parties to assist them in making a fully informed decision. However, what is most important is that the parties are the decision-makers and ultimately retain control of the outcome of the meetings.
During the meetings, parties are encouraged to be as creative as possible in generating options for resolution. Any discussions that take place are “without prejudice”, meaning that the parties have the freedom to speak their mind without fearing that those statements will later be used against them in court. All discussions and meeting minutes are private and confidential.
Collaborative Family Law centers on interest-based negotiations. Rather than focusing on their respective positions, parties are encouraged to focus on their underlying interests and concerns, and ultimate goals for the process, themselves, and their family going forward. For example, if one parent in a meeting expressed that he or she “wanted the children 50% of the time”, the Collaborative lawyers would then dig a bit deeper to find out what interest or concern is underlying that statement. Is it fear of a loss of relationship with the children? Is it a concern for maintaining stability in the children’s lives so they are affected as little as possible by the separation and divorce? By examining issues on a deeper level, parties are able to recognize that they may share common interests, thereby allowing them to more easily generate options that speak to those shared interests and ultimately reach a mutually-acceptable solution.
In addition to the two registered Collaborative lawyers, other Collaborative team members, such as a parenting specialist or financial expert, may be added in order to assist parties in decision-making. If parents for instance are finding it difficult to formulate a parenting plan that best suits their children at each particular developmental stage, they can retain a parenting expert to provide them with advice and recommendations. When it comes time to discuss the division of the matrimonial property, parties may choose to retain a financial expert to provide advice on the tax consequences of particular dispositions or to assist in valuing a business. Experts retained in addition to the Collaborative lawyers will be neutral – meaning that they will be jointly retained by the parties and therefore will not work for either party’s particular interest. Regardless of who makes up the Collaborative team, all team members are ultimately there to support the parties in making sound decisions for their families.
Once all of the issues have been discussed and matters settled between the parties, the Collaborative lawyers will prepare a legally binding settlement agreement for the parties to review and sign. If applicable, the lawyers will also jointly file for a desk divorce.
If the negotiations break down at any point during this process, both parties are free to withdraw. However, and what is most critical to this process, the registered Collaborative lawyers will then be disqualified from later representing their clients in court. Because all of the discussions were confidential and without prejudice, the clients would essentially have to start the divorce process over with a new lawyer if they wanted to pursue litigation. In addition to motivating the parties to reach a resolution, this component is critical for maintaining the integrity of the full, honest disclosure and good faith negotiations that are the hallmarks of the Collaborative process.
As set out on the Collaborative Divorce Alberta Association’s website, Collaborative Family Law has been successful in a wide variety of situations, including:
- Short-term and long-term marriages;
- Marriages with or without children;
- Financially straightforward or complex marriages;
- Common-law relationships;
- Same-sex relationships;
- Marriages with unique or cultural or religious values;
- Negotiation of cohabitation agreements;
- Negotiation of pre-nuptial agreements.
If you, a family member, or a friend is interested in learning more about the Collaborative Family Law process or scheduling an initial consultation, please do not hesitate to contact our office at 780-482-7691. Additional information can also be found at Collaborative Divorce Association Alberta https://collaborativepractice.ca/ and Association of Collaborative Family Professionals (Edmonton) http://divorceseparation.ca/.
Dayna E. Kwasney
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.