About the Collaborative Process

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Collaborative Practice

Pro Bono Family Law Project

Collaborative law or collaborative practice, refers to a method of resolving a dispute respectfully – without going to court. The collaborative process involves you and your spouse each working with your own collaboratively trained lawyer, to work together to resolve the terms of your separation. The process involves meeting in a boardroom, instead of a courtroom.

Often times, the collaborative team also includes multidisciplinary professionals, a family professional and a financial neutral. A “neutral” professional means they have been jointly retained by both parties to provide expert advice to the team and both clients in their area of expertise. The team works together to help both parties find an equitable resolution that meets both party’s interests.

Collaborative practice requires that both parties sign a participation agreement at the beginning of the process that states they will:

  • Deal with each other in good faith;
  • Be respectful, constructive and timely in their written and verbal communication;
  • Express their interests, needs, goals and proposals and seek to understand those of the other; and
  • Develop an array of options for settlement and use their best efforts to negotiate a mutually acceptable settlement.

The participation agreement also states the parties will not:

  • Use the threat to withdraw from the collaborative process to go to court as a means of achieving a desired outcome or forcing a settlement; or
  • Take advantage of mathematical or factual errors and will instead identify them and seek to have them corrected.

The participation agreement also includes a disqualification provision which means that if either party were to commence a court application, neither of the collaborative lawyers can act for their clients in the litigation process. The disqualification provision is designed to remove the threat of litigation from the negotiation process, and it allows both parties and their lawyers to really commit to the settlement process.  The negotiation process is strictly without prejudice, which means the settlement discussions cannot be used by either party if litigation is commenced, except as agreed.

As part of the collaborative process, both parties are required to make full and complete financial disclosure.  For more information about what financial information must be exchanged,
click here.

The negotiation process itself is interest-based, which means that the lawyers are advocating for their clients in a way that honours not just both party’s rights and obligations under the law, but also their interests, and the impact of the separation on the entire family including the children. The negotiation is also respectful, supportive and constructive. It requires both parties to learn to communicate with the other, and to do so in a respectful manner.

For the collaborative process to be successful, it requires that both parties, and the team, all work together to find an equitable and sustainable resolution to the separation. It requires that both parties receive legal advice, and full disclosure, and both parties must have the freedom and security to freely negotiate their best deal.

For more information about the collaborative process, go to www.collaborativepracticetoronto.com  and www.oclf.ca