Collaborative Family Law

Why can't you go to court if I need to? Why should I retain you as a Collaborative Family Law lawyer when I can retain a lawyer to do the whole job?

When litigation is an option, lawyers tend to go to court when they encounter problems. If we take a case that may go to court, we have to spend time preparing to go to court, just in case. A lawyer involved in a litigation case acts differently, follows different procedures and involves his or her client less than in a collaborative case.

When the parties have given up the right to go to court, all of the lawyer's problem-solving abilities are focused solely on settlement. When court is not an option, the parties and their lawyers stay at the table and keep talking. Generally, they are able to come up with creative settlements that are far better and more customized than a court could create.

Even if the collaborative process doesn't succeed and you have to go to court, you have had the best of all worlds – a lawyer who specializes in settlement, and, if trial is necessary, a lawyer who specializes in court. It is rare for a lawyer to be as effective as a negotiator and as a trial lawyer.

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I'm interested in Collaborative Family Law, but my spouse and I aren't talking and I'm worried he won't listen to me. Is Collaborative Family Law for us?

When people go through a divorce their minds are very busy dealing with a lot of unknowns. People usually feel very worried and fearful about their future. It's hard to get the psychological space to think and make good decisions and it can be really difficult to talk with each other. In the collaborative process, you'll have time to breathe deeply, think, and make the best possible decisions. We'll be there to support you and to keep the negotiating space safe and clear. There will be no yelling, intimidation or disrespectful behaviour. Your spouse's lawyer will be discussing appropriate behaviour with him/her as well. Often, once a proper negotiation climate is established and each spouse realizes that the goal is to get both of your needs met, each person can begin to really listen to the other and to move forward successfully.

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How do the costs of Collaborative Family Law compare with mediation or court?

Collaborative Family Law is generally far less expensive than a court proceeding that goes all the way to a trial. Some people believe that mediation is less expensive than collaborative law because the parties share the cost of the mediator as opposed to each paying for their own collaborative lawyer. This is often true. However, some people require that their lawyers be quite involved while they go through mediation, providing legal advice and perhaps attending the mediation sessions. If that happens, mediation is generally more expensive than Collaborative Family Law.

Although we cannot predict your costs in a Collaborative Family Law process, as the number of meetings vary from case to case, we generally find that parties’ costs are less than they would be had they been involved in a contested litigation. The added advantage of the collaborative family process is that the parties are able to negotiate a comprehensive settlement of all the issues which is specifically tailored to their own unique needs.

We suggest that you choose mediation or collaborative law based on which process you and your lawyer think is most appropriate for you.

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My lawyer says he settles most of his cases anyway. How is collaborative law different from settling a traditional case?

Collaborative Family Law settlements tend to be negotiated in quite a different way than cases that proceed through the courts. While most family cases do settle before trial, settlement usually occurs only after each party has spent a great deal of money and suffered emotionally from the experience. Settlements are often reached while everyone is under stress to avoid the next court appearance. In an adversarial proceeding, lawyers negotiate settlements based on what they predict will happen in court. From the outset of a Collaborative Family Law case, all of our efforts are geared toward achieving an early settlement. Our goal is to negotiate a settlement that satisfies each party's needs and interests rather than what a judge might order. You and your spouse, not your lawyers, create the settlement in Collaborative Family Law.

Also, Collaborative Family Law negotiations are generally more respectful and open than what you might see in an adversarial proceeding. Unlike court which is scheduled according to the lawyers' and the court's timetable, Collaborative Family Law meetings are scheduled to suit you and your spouse. You will both have time to think and make good decisions. Finally, Collaborative Family Law settlements are customized to suit your particular family, arrived at more quickly and usually with less cost than settlements reached in a traditional negotiation.

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How do I know if Collaborative Family Law is for me?

Collaborative Family Law may or may not be the most appropriate process for you. It may be helpful for you to consider certain factors before you make your choice:

  1. Collaborative Family Law will be of interest to you if you and your spouse want to keep control over the decisions made about you and your family, rather than giving authority for decision-making over to a lawyer or judge.
  2. You should only choose Collaborative Family Law if you and your spouse each accept that the other has legitimate needs and interests that must be addressed as well as your own.
  3. Collaborative Family Law is probably for you if maintaining civility, dignity and mutual respect throughout the process are important for you.
  4. If you want to maintain a positive relationship with your spouse after the divorce, Collaborative Family Law is preferable to court.
  5. Collaborative Family Law offers a greater assurance that your children will be sheltered from the emotional damage often caused by a separation of their parents.
  6. If the goal of you and your spouse is to co-parent your children, there is a greater likelihood of obtaining that outcome and developing an effective parenting plan through Collaborative Family Law.
  7. Before you commit to Collaborative Family Law, you and your spouse must be willing to exchange all important information.

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How do I know my spouse will be honest and won't hide information?

There are no guarantees of honesty in any legal process. The Collaborative Family process relies on undertakings by both parties to make voluntary disclosure of all important information. However, from the outset both parties know that they have an obligation to provide full, honest and complete disclosure. This is part of the contract that both the parties and the lawyers sign at the start of the process. Furthermore, a Collaborative Family Lawyer is mandated to withdraw from the process if s/he feels his/her client is refusing to make full disclosure. Such a requirement serves as a disincentive to a potentially dishonest party, given that they would then be required to incur further legal fees in finding another lawyer and/or ending up at court.

Collaborative Family Law lawyers do not focus on rooting out hidden assets or income. Although you may see any financial documentation you feel is important, if you do not trust in the basic honesty of your spouse, Collaborative Family Law is likely not appropriate for you.

Remember that the cost to find hidden assets is often very high. Regardless of the process you choose, you will need to conduct a cost/benefit analysis and decide whether such a search is worth the expense.

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What if we settle everything but one issue in Collaborative Family Law – do we have to lose our lawyers to go to court?

If all but one or two issues have been resolved in the Collaborative Family Law process, it is possible to refer those issues to an arbitrator who will make a final and binding decision. If you and your spouse agree upon the facts, the issues that need to be resolved and to arbitration as a dispute resolution process, your lawyers may then be able to continue to represent you and your spouse. The Participation Agreement approved by our Collaborative Family Law association permits arbitration in these circumstances.

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Which is more appropriate for us – mediation or Collaborative Family Law?

Though the Collaborative Family Process is successful and appropriate in many family cases, Collaborative Family Law may also be particularly suitable where the issues that the parties are facing are sensitive, unique (not generally seen in most files), complex, where there is low trust between parties, etc.

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