The Participation Agreement
The participation agreement is a fundamental element of every collaborative process.
This agreement is signed by both parties and each of their lawyers at the first group meeting. It defines the relationship between all team members and sets out the rules of the game. Although the agreement may vary in different jurisdictions, it always includes the basic tenet of collaborative practice: that neither party will take this matter to court. And if they do, both parties will be required to retain new lawyers.
Most participation agreements begin by stating the goal of the collaborative process, which is to settle any issues in a non-adversarial manner in order to minimize, if not eliminate,the negative economic, social and emotional consequences for the parties and their family that would result from litigation or negotiations within an adversarial system. There is often a stated goal that the children of the marriage will not be negatively affected by the ongoing negotiations, and that resolutions will always consider what is in the best interest of the children.
Participation agreements often include communication guidelines; these clarify and reinforce each participant’s duty to be respectful to all other team members, in both oral and written communications. The agreement sets out the expectation that everyone will be honest and forthright, that any mistakes will be noted and corrected, and that no one will attempt to take advantage of inconsistencies.
The collaborative process implies a responsibility and commitment to open and honest cooperation. The participation agreement is intended to educate and reinforce, as well as commit the parties to the collaborative process.
Joelle Adelson, B.Comm., BCL, LL.B.
Estate Planning, Collaborative Family Law, Mediation
4-245 Wyecroft Road
Oakville, ON L6K 3Y6