COLLABORATIVE FAMILY LAW
by Marla S. Miller, Q.C.
One of the most common feelings experienced by people in a relationship breakdown is that of loss of control. Living arrangements change, financial demands are different, emotions of each of the parties and their children run high, and even social relationships are affected. These situations can often lead to anger, fear, and depression, which often seem to exacerbate the feelings arising out of the loss of control. That feeling of being a victim to the whirlwind of separation and/or divorce can be compounded when the parties become subject to the formal legal process and the courts.
When the Court is involved, the parties have much less control over the outcome and major decisions affecting their lives and the lives of their children are left to the decision of a third party, namely a judge. Although knowledgeable and committed to determining the best answer according to the law, judges are strangers to the parties and their children. As a result, judge-made decisions are often not those that the parties themselves would have come up with if they had been able to make their own joint decisions.
We intrinsically know that when we are angry we do not make good decisions, and we rarely make decisions which will take into consideration the needs or interests of the party who has angered us. Think about the last time you were angry with your child’s behaviour, and at the same time the child asked for something as ordinary as permission to go out.
Likely your answer was a resounding NO — just because you were angry and were not open or able to make a considered decision. In light of that, it is no wonder that parties to a relationship breakdown, who may come to the legal process with their own anger, or who may feel frustrated and angered by the legal system and the time, cost and stress involved, are often unable to reach reasonable resolutions to their own situations in a reasonable amount of time and cost.
What can be done about the anger? Experienced Family Law Lawyers across Canada and the United States, who have been involved in dealing with couples and families going through relationship breakdowns and have seen the demands and costs of turning to litigation and the courts for resolution to these matters, are more and more convinced that there is a better way to resolve these matters. These lawyers have turned to a practice formally known as Collaboration or Collaborative Divorce.
The basic concept behind Collaboration is that those in the relationship breakdown and their Collaborative lawyers agree to resolve all matters without going to court or threatening to go to court. The commitment to resolve matters out of court is so strong and so vital to the process that the parties and the lawyers all sign a formal agreement, called a Participation Agreement, where the parties agree to follow the Collaborative Law process.
The prohibition against resorting to the Court in the Collaborative Family Law process is so fundamental to the process that if one of the parties wishes to proceed to court, then both Collaborative Family Lawyers must resign from representing their clients and both of the clients must then find new lawyers to conduct the litigation. In addition, unless otherwise agreed to by the parties, any experts retained during the Collaborative Family Law process and their reports are off limits to both parties and cannot be relied upon in the court proceedings.
Because the stakes are so high to the parties, lawyers in Alberta wishing to practice Collaboration must undertake additional training in Collaboration, Mediation, and Interest-based Negotiation Techniques, and be members of their local Collaborative Family Professionals Associations to earn the right to be called a Registered Collaborative Family Lawyer.
All of this is to provide the lawyers with additional settlement skills and attempt to ensure that Registered Collaborative Family Lawyers all adhere to the same principles of negotiation and settlement. Every effort is exerted to assist the parties in reaching settlement.
The key to Collaboration is cooperation and collaboration. That does not mean that each individual client’s interests are not met or protected. Just the opposite. Although both parties and both lawyers commit to working as a team, each lawyer’s highest duty is to his or her own client. Each lawyer explains to his or her client the relevant law and points out unreasonable expectations.
Through what is known as Interest-Based Negotiation or Principled Negotiation, each of the parties’ interests are identified. Through focusing on the parties common interests, the parties work together to reach an agreement that sees each party’s interests (as opposed to positions) met. In other words, the goal is to find win-win solutions to the problems and issues.
Collaboration proceeds mostly by meetings with the two clients and the two lawyers being present. Sometimes other professionals may also be involved who are also trained in Collaboration. This can include Financial Neutrals, Family Specialists and/or Divorce Coaches.
With almost all of the work being done with the clients being present, the clients take control of their lives and their decisions. The meetings take place as often as necessary and as soon, or as far apart, as all parties decide.
During the meetings there is a complete exchange of information. Full disclosure is imperative to the procedure. There is a complete exploration of each of the parties’ individual concerns and interests and an examination of common interests. The Collaborative Family Professionals are skilled in assisting the parties in understanding each other’s concerns. If necessary, outside experts are jointly retained. These can range from accountants, to business evaluators, to financial planners, to therapists and coaches. None of these experts are retained without joint agreement.
A wide range of possible choices for resolving the issues between the parties is identified by the parties and their lawyers and then the parties are assisted to reach solutions acceptable to each of them. The Collaborative process and the negotiations are characterized by a full discussion of the parties’ individual perspectives and interests in a respectful environment which encourages the parties to let go of the past in order to focus on the future. Each of the parties are encouraged to understand each other’s concerns, as that is one of the keys to successful negotiation.
Experience has shown that resolving issues arising out of relationship breakdowns through Collaborative Family Law saves the parties significant time and money; reduces destruction to the family from high conflict; helps the parties to provide for the children’s best interests; puts the parties in control of their divorce; and is creative and flexible to fit the needs of the parties.
For more information on the Collaborative Family Law and how it works, or to find a Registered Collaborative Family Lawyer to represent you, please refer to the website: www.collaborativepractice.ca or www.divorceseparation.ca
Marla S. Miller, Q.C. is both a Registered Collaborative Family Lawyer and a Registered Family Mediator and practices in Edmonton with Miller Boileau Family Law Group