Collaborative Family Law offers a way for spouses to resolve all of the legal issues arising from a separation in a non-adversarial setting. The process is based on the principles of good faith, full disclosure, co-operation, integrity, honesty and ethical professional standards. In Collaborative Family Law each spouse has his or her own collaboratively trained lawyer. There is a written commitment not to go to Court, but rather to negotiate in good faith (A sample contract can be found here). The goal is to attempt to minimize the impact the separation can have on the family and to maximize the opportunity for a creative and enduring agreement. Negotiations take place in meetings with the two spouses and their lawyers present. In some cases we employ a team approach and may involve collaboratively trained financial professionals and family professionals. In the event one or both spouses ultimately wish to go to Court, both spouses must retain new lawyers.
Collaboratively trained professionals are committed to assisting the couple in settling their issues without Court and in a civilized and dignified manner. I am an active member of the Speed River Collaborative practice group. I regularly practice Collaborative Law and have Level I, Level II, and, interdisciplinary training.
For more information visit the association website at www.speedrivercollaborative.ca.
Settlements are often reached through traditional negotiations between the parties’ lawyers. Typically the lawyers exchange financial information and then exchange letters outlining each party’s position. From there the lawyers bargain back-and-forth, working towards a final settlement that is then incorporated into a separation agreement. If the negotiation is not successful, the issues that are not settled can either be sent to mediation and/or arbitration or the couple will have to deal with them in Court (litigation).
This method can work well and can often look like a collaborative settlement, with the parties and their lawyers meeting to discuss issues. However, it can involve hard-bargaining that can make life difficult for the parties post-separation, particularly when children are involved. Spouses are more likely to miss opportunities for win-win solutions that benefit both parties when they become entrenched in positions.
I like to describe court as a last resort. Having a judge - someone who doesn’t know you, your spouse, or your children - make decisions about your family is really a kind of failure. Of the cases that proceed to Court, roughly two percent will make it to a trial. Most cases settle before trial, often on the Court House steps. It is not unusual for lawyers to quickly prepare hand-written settlement agreements in a flurry of negotiations to avoid trial. Virtually unchanged since the 19th Century, the process involves long waits in crowded hallways surrounded by other, often angry and upset, litigants. There is no doubt that some situations require Court involvement. However, for most situations, it is preferable to try to negotiate the issues out of Court.
After 18 years of fighting over (and worrying about) other people's children I decided to take a break from court work and have no plans to return. If you retain me and your case becomes litigious then I will refer you to another lawyer and assist with the transition of your file.
The short definition of mediation is: a facilitated negotiation. The longer definition is: a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to a dispute.
The focus of my mediation practice is on interest-based problem-solving. The goal is to arrive at a custom-made solution that works well for both parties. My role as mediator is to work as a neutral third-party to help separating couples negotiate a settlement. When you hire a family law lawyer as your mediator you gain the advantage of experience and knowledge. I am what is known as an evaluative mediator, meaning that while I do not give legal advice as a mediator, I will let parties know what the law is on certain issues or tell them how a judge might decide an issue. Each party will need their own lawyer to provide them with independent legal advice before an agreement is signed.
The mediation process can be broken down into five steps:
Organizing and Understanding the Issues
Working through the conflict
Developing and Evaluating Options
Concluding the Agreement