Depending on how the day has unfolded I may indulge in N.C.I.S. or Criminal Minds reruns or some lighter fare such as Real Housewives of Vancouver. One late night I tuned into Family Matters, Justice Harvey Brownstone’s show on Family Law.
The guest was former Alberta Court Judge, Michael Moran. He was explaining his decision to leave the bench after 22 years to become a mediator so he could serve the public better. As a mediator he has the luxury of being able to listen fully to the parties’ perspectives to help them solve their own problems. He cited the “Judge Judy Phenomenon” where the litigants tell their story, she interrupts a few times, gives a quick decision and they cut to a commercial. The result of the show is a distinctly false impression of the justice system. Judges do not always have the freedom to dig deep and understand every aspect of the conflict. Judicial decisions are frequently made in the face of incomplete information. He realized the best outcome could not possibly come from a fraction of the story.
I was reminded of two recent cases in which I had acted for the husband and the wife respectively. We started both cases by suggesting mediation to the other side. They refused so we commenced a proceeding in Court. In one case my client was threatened with contempt of court for trying to tell her side of the story. We were getting nowhere and the trials were looming. Neither party had the funds for a trial. After many fruitlessly painful court attendances and thousands of dollars later we came full circle and agreed to mediation.
After the first mediation session both clients reported feeling satisfied with the way the day unfolded. They felt heard and understood. They sat with a mediator for the day and hashed out their issues. Both parties got to talk at length about what they wanted and what happened behind the scenes before and after separation. It took time, but it was well worth it. Some of the misunderstandings were cleared up. At the break one of the couples went out to get coffee for everyone. They returned chatting and laughing. The connection between them was tangible. In both cases, the mediator used the newly built bridges to assist with designing the terms of the settlement.
The process of mediation got the parties and the lawyers into different mindsets of calm, compassion and warmth. We worked as teams instead of adversaries to climb the proverbial mountain. It was not easy, but both cases eventually settled. Mediation produced healthier and more effective ways to resolve conflict for the clients. Simply, it was less stressful and more rewarding for all involved.
About Meredith Cox
Meredith Cox is a collaborative family lawyer and trained mediator. Her law practice and ongoing education have focused on the diverse interests of family law clients since 1994. After learning about Collaborative Family Law in 2002, she was immediately convinced the process offered a better way to help clients create their own solutions. Meredith is firmly committed to resolving family law disputes respectfully and sensibly for the sake of the clients and the children caught in the middle.
We have to accept, as Collaborative Professionals, that the Collaborative process is not a panacea. There are many individuals who simply just want to remain in conflict and all the helping to communicate and constructive problem solving we, as conflict resolution experts, can muster will not work. There is one simple condition needed to assess whether the Collaborative Process is fitting for the case and that is whether the parties are ready to move on from the conflict. Simple, in that this is the one condition needed, yet not so simple to ascertain. Of course, most will say they are ready to move on, but behaviour will dictate otherwise. Absent influence, intimidation, and so on, a party’s readiness to be objectively reasonable is the indicator as to whether that party is ready to move on from the conflict. As lawyers advising our clients, it is as equally important to direct our clients correctly on process, as on the substantive legal issues. If the Collaborative process is the right process, then the client needs to know. However, the client also needs to know if it is not. Regardless, due to the last twenty years of sweeping ADR (Alternative Dispute Resolution) trends, lawyers need to be apprised of what is out there so they are in a position to properly advise and be responsive to their clients’ needs. This has resulted with more up-front work needed by the lawyer with the client. This simply forms part of the new way to practice law, and in particular, Family Law. If done well, the lawyer will understand whether the client is truly ready to move on…or not.
Marie Nickle is a lawyer and mediator. She also trains lawyers and other professionals in the Collaborative Process of Dispute Resolution.
Marie B. NickleThe Galleria
204-1715 Lakeshore Rd. West
Mississauga, Ontario L5J 1J6
Like many of my colleagues, I have learned some fundamental truths working in the field of family law for almost 30 years. Those lessons are what led many senior practitioners to endorse the use of collaborative practice for the resolution of family disputes.
One of the most basic truths is that despite the wish that a client may have to never deal with an “ex” again, with few exceptions, an ongoing relationship will continue for many years, usually as parents or grandparents, or for financial support.
The cases that have been resolved through the traditional court process have a high rate of return to the court, for future problems. Family separations involve ongoing rights and responsibilities whether dealing with the parenting and time share of children, child support or spousal support. And there are always changes in the future that need to be addressed. Children get older and want to change residence, perhaps live with the other parent. There are activities to decide upon, and whether they should be competitive level or recreational. Children go to university and the cost sharing has to be decided. One parent may believe a child should contribute to post-secondary education, and the other may want the child to experience Europe for the summer. A payor loses a job, or retires, and needs to have support changed. A recipient remarries. If the parties have not learned skills to help them negotiate and reach agreement on future changes, they revert to the first method used, such as court. They can’t reach agreements so they go to someone, like a judge, to make the decision for them. The cost is significant in terms of time and financial resources.
As a family law lawyer, there are many clients who I represented in a court process, that come back to the expense of litigation when they need to change something in the original order.
One client separated in 2001 and obtained a court order resolving custody, access, child support and division or property over a year later. They had 2 children; a boy born in 1988 and a girl born in 1993. In 2007, the matter returned to court as the son was in college living away from home, and the costs had to be sorted out. A court proceeding was needed as the parties could not reach an agreement directly. That took about a year of court time. The client returned to my office again this week, as the daughter is starting college in the fall and the cost sharing needs to be agreed to. It is likely that a further court action will be required to sort that out as well.
In another situation, parties were married for 10 years and were involved in court litigation for 8 years to reach an agreement on all of their financial issues. Two years later the eldest child began University away from home. Another court proceeding is needed and takes the full four years of the child’s attendance at University to get resolved. They also have a son, who is in Grade 11. Likely another court proceeding will be required in 2 years when he starts university.
A third situation was in litigation for 5 years, and was back in court on at least four occasions over the next 10 years to address issues, resulting from a payor’s lost job, and a child’s post-secondary school program extending beyond one degree.
I have represented clients in collaborative proceedings for almost 10 years. Interestingly, not one has come to see me to deal with a change. They somehow manage to do it themselves. They recognize that they need to work together in the future, and invest in creating a working relationship through the use of the collaborative process, to help them solve disputes as they arise. More importantly they don’t see the solution from a win or lose perspective. They are able to work on solutions that address everyone’s interests, particularly the interests of their children.
From my perspective, considering the anecdotal evidence, there are strong reasons why parties should choose a collaborative approach to resolving their separation. It is time and money well invested in their future.
Christine A. Torry
Willis & Torry, Barristers & Solicitors
35 Queen Street South
Mississauga, ON L5M 1K2
Tel: 905-819-2970
Fax: 905-819-8379
Lawyers report the practise of family law litigation to be particularly toxic. The Collaborative Family Law Process creates a more desirable working environment for those lawyers inclined toward problem solving, as opposed to vitriolic litigation. But do clients have the same level of satisfaction with the collaborative process as experienced by collaborative lawyers?
The International Academy of Collaborative Professionals (“IACP”) recently published their findings following extensive research [Linda Wray, “IACP Research Regarding Collaborative Practice (Basic Findings”), The Collaborative Review 12 (2012): 8]. Statistics reflect that the collaborative process is primarily employed by middle to upper middle class, educated divorcing spouses with children, most of whom use some form of the interdisciplinary approach (that is using financial, family or other professionals) in their seperation. Although the vast majority (86%) of these cases settle within approximately eight months through the collaborative process, there is a small percentage of cases that do not settle or are unsatisfied with the process.
In terms of actual client satisfaction, approximately three-quarters of all collaborative clients polled in the IACP Professional Practice Survey reported being extremely or somewhat satisfied. Even more notably, the satisfaction clients felt for the process slightly outweighed their satisfaction with outcome.
Clients indicated that they were satisfied with the manner in which their personal respect and respect for their viewpoint was maintained, the manner in which matters were clearly explained, their concerns and confusion addressed, the effectiveness with which their lawyers communicated, and the assistance they received with the development of their parenting plans and options for various issues.
Collaborative Family Law creates and nurtures a “safe space” for clients who are frequently, at their most vulnerable, addressing a drastic change in their lifestyle, and experiencing intense emotions.
Separation and divorce present a number of challenges and the success and satisfaction rates of any legal processes are important to consider.
Seek out personal experiences of collaborative clients and lawyers before selecting the approach you wish to take. Self-examine what you truly seek from the process, and determine what your goals are. Collaborative Family Law may create an increased chance for desirable outcomes and, throughout the entire process, the greatest degree of client satisfaction.
Fareen Jamal Jessie Lamont
Bales Beall LLP Bales Beal LLP
2501-1 Adelaide Street East 2501-1 Adelaide Street East
Toronto, ON Toronto, ON
M5C 2V9 M5C 2V9
Is there anyone out there who has not heard of the bestseller, “Fifty Shades of Grey”? The following summary is from Wikipedia:
“Fifty Shades of Grey is a New York Times #1 best-selling erotic fiction paperback and e-book by British author E.L. James. Set largely in Seattle, it is the first instalment in a trilogy that traces the deepening relationship between college graduate, Anastasia Steele, and a young business magnate, Christian Grey. It is notable for its explicitly erotic scenes featuring elements of BDSM.
The second and third volumes are titled Fifty Shades Darker and Fifty Shades Freed, respectively. Fifty Shades of Grey has topped best-seller lists in the U.S., the U.K., and around the world. The series has sold around ten million copies worldwide, with book rights having been sold in 37 countries.
The plot traces the relationship between recent college graduate, Anastasia Steele, and manipulative billionaire, Christian Grey. Steele is required by Grey to sign a contract allowing him complete control over her life as well as a non-disclosure agreement, something that he’s required from all of his previous submissives. Upon learning that she is a virgin, Grey agrees to have sex with her in order to prepare her for later encounters, fully intending that the contract would be signed. As she gets to know him, she learns that his sexual tastes involve bondage, domination, and sadism, and that childhood abuse has left him a deeply damaged individual. In order to be his partner, she agrees to experiment with BDSM, but struggles to reconcile who she is (a virgin who has never had a boyfriend) with whom Christian wants her to be, his submissive and a to-do-with-as-he-pleases partner in his “Red Room of Pain.”
There were times I was reading the first book that I had some “uncomfortable” moments. Some examples: Ms. Steele: “His tone is quiet and deadly. Oh no. I squirm.” “will he punish me?” Mr. Grey to Ms. Steele: “Because I’m going to spank and then … you.” Ms. Steele to Mr. Grey: “Why?” I whimper softly… “Holy Shit…Please don’t hit me” I whisper, pleading. “I don’t want you to spank me, not here, not now. Please don’t.” Mr. Grey to Ms. Steele: “This is mine” he whispers aggressively “All mine. Do you understand?” Ms. Steele to Mr. Grey: “Because I’m too frightened to show you any affection in case you flinch or tell me off or worse – beat me.” Ms. Steele finally concludes: “but I realize that’s just the way he is. He likes control over everything, including me.”
I think that gives you a sampling of some of my concerns with the first book in the series. Let’s fast forward a few years, and assume that Ms. Steele and Mr. Grey have been cohabiting as spouses for three years, and then they separate. They are interested in mediation and/or collaborative law. Would they be suitable candidates? Are there power imbalances in their relationship? Are the power imbalances so significant that a mediator would not be able to “even the playing field”, but what about the collaborative lawyers? Would a “team” model be a more appropriate choice?
I reviewed my screening “protocols” for power imbalance and domestic violence (adopted from the Model Screening Protocol from the office of Dispute Resolution, State Court Administrative Office, Michigan Supreme Court). Mediation and the collaborative process should only proceed if the lawyer or mediator believes that they can provide a safe environment for the process that will support the parties in negotiating an agreement that is fair to both of them, and is non-coercive.
One of the screening headlines I use is “Control, coercion, intimidation, fear.” Are there “control” issues between Ms. Steele and Mr. Grey? Who is the Dominant, and who is the Submissive? I hope you did not laugh reading those questions… control can be fluid, and the power imbalance can shift back and forth in some situations. Mr. Grey, in this case, was clearly a “control freak.” Because of how the couples’ relationship started, Ms. Steele continued to feel intimidated by Mr. Grey, and on occasion, fearful of him. It would be important to update the client’s stories over the past three years to have the full picture.
Has either of them even prevented the other from having contact with family or friends? I recall Mr. Grey’s “refusal” to “allow” Ms. Steele go away for a work weekend with her boss. I also recall Mr. Grey’s initial “refusal” to “allow” Ms. Steele to meet with her friend Josee (when Ms. Steele advised him she was not asking for his “permission”, there were “parameters” on the visit.)
What about asking Ms. Steele: “Do you ever become afraid for yourself based on a look from Mr. Grey?” She would have to say yes.
What about: “Has Mr. Grey ever pushed, shoved, hit, kicked, slapped, choked your or pulled your hair?” Again, she would have to say yes (hopefully she would not provide too much detail…)
Mr. Grey also liked to control what Ms. Steele wore, having her wardrobe bought for her. Another element of control. I have to admit, I don’t have the question: “does your spouse tell you what to wear” or “does your spouse purchase your wardrobe without your input?” on my screening checklist.
“Do either of you have a history of mental illness or emotional problems?” Mr. Grey would have to answer yes.
“Have either of you ever attempted or considered hurting yourself or others?” Mr. Grey would answer that he enjoys causing pain to others. He identifies himself as a “sadist.”
“Has your partner ever forced yourself to do something that made you uncomfortable?” Absolutely, in particular in the beginning…
And, there was a time where Mr. Grey enjoyed causing Ms. Steele pain.
There is also a significant financial imbalance between them. Can that be balanced out in either a mediation or collaborative law model?
There is a point in the second book where Mr. Grey does not want to lose” Ms. Steele from his life. He is willing to do anything to “keep” her. Many of us have had clients who have felt like this; those who are so hopeful for reconciliation they will agree to anything in hopes of reconciliation. Would the lawyer/team’s approach be able to address this need?
I would not accept Ms. Steele and Mr. Grey for mediation, unless both were represented by lawyers and they agreed to involve other professionals in the process, as needed.
Depending on the skills and experience of the professionals, they may be suitable for the collaborative team model, with a therapist and financial planner’s presence. They are a prime example though of why all lawyers considering a collaborative retainer should screen their clients. Much of this information, with the exception of their significant financial disparity, would not be available without screening. Both clients would present very well. Highly educated, successful couple. You don’t know, unless you ask.
It seems so simple! Divide the property in half, use the guidelines to calculate spousal support, and use the tables to calculate the child support. How difficult could that be?
Unfortunately it is like when you are told that all you have to do to lose weight is to “diet and exercise.” Again, the concept seems simple enough. But as many of us know, you quickly find out there are obstacles that get in the way of your success when you go at it alone.
The same goes for separating couples and their finances. The good news is that they don’t have to go at it alone. In the last decade, a different kind of financial professional has come on to the divorce scene. They are Financial Divorce Specialists (FDS) or Certified Divorce Financial Analysts (CDFA). Applicants for either accreditation must already have a recognized professional designation in accounting or financial planning. Financial professionals that have an affinity to conflict resolution may also choose to be trained as mediators. And financial professionals that would like to be part of a Collaborative Law Practice Group are required to take the same courses on collaborative procedures that are required of the collaborative lawyers. However, what all of these financial professionals have in common is that they are all able to provide clients with a thorough evaluation of the financial ramifications of divorce settlement options. This is of benefit to the process because the client is being asked to make irrevocable financial decisions during an emotional roller coaster ride.
That is why more and more lawyers, call on these financial professionals to assist their clients in arriving at a settlement. The lawyer may not feel comfortable giving out some types of financial advice. And it isn’t always cost effective; or they aren’t always able to take the time to analyze the future financial impact of alternate proposed settlements, or educate a client that has less financial knowledge.
These financial professionals:
1) Can work with the spouse that is less knowledgeable financially, so that they come into the negotiations on equal footing
2) Organize financial data that comes in from both spouses and prepare various financial documents, and
3) Prepare financial scenarios around future cash flows and net worth
Financial issues in a divorce can be a challenge. This is exaggerated by the emotional turmoil the couple is experiencing. They say that for married couples, financial stress will magnify any bumps in the road ten-fold. So for separated couples, it follows that the financial stress, will be that much worse.
When trying to put together the “dreaded” financial statements or budgets for your lawyer or looking at your spouse’s financials, it can trigger feelings of anger, mistrust, fear and inadequacy. This explains why a client may freeze in the middle of this process. The financials then go on the shelf until the client is ready to face those numbers or “emotional triggers” again.
Individuals, couples, lawyers and family professionals that are interested in “collaboration” enlist these financial professionals. Their approach to a legal settlement includes the usual analysis of the “Valuation Date Needs.” However, there is an additional component which is the analyses of future financial needs. We know that financial stress is compounded by fears about your financial future. In a separation, there is the added resentment that the other spouse will be unduly better off. Adding this future component to the analysis can reduce these fears and resentments, which will help bring the settlement to resolution sooner, which in turn will save time and money for all involved.
The Collaborative Process is based on full disclosure and mutual respect. Parties and their lawyers sign a Participation Agreement acknowledging that written and oral communication between the parties will be respectful and constructive. At the first meeting the lawyers will discuss “rules of conduct” such as politeness, no interrupting, no name calling and others.
A collaborative four way meeting, attended by the parties and their lawyers, is seen as a “safe” place to negotiate a Separation Agreement. But what about the angry souse? Is there a place for anger at the collaborative table? How do parties negotiate in a civil manner when one or both of the parties is openly hostile?
Many couples who are “separated” continue to live under the same roof, usually for financial reasons. Until the issues of support and division of property are resolved it may be impossible for one or both to purchase (or rent) separate accommodation. The laws of Canada recognize that a married couple may be living under the same roof and still meet the criteria of living separate and apart that allows them to seek relief under the Divorce Act or applicable provincial legislation (in Ontario, the Family Law Act).
Obviously, where there has been a breach of trust, especially in cases of infidelity, living under the same roof is stressful. Tempers flare, in the home and at the collaborative table.
Counsel can help the parties handle their emotions and can “model” civil, respectful communication. Coaches can be employed to assist either or both parties to deal with hostility. A third party neutral or facilitator can help everyone move past the anger that may be impeding communication and thwarting potential settlement.
Regardless of their social or financial status people in the midst of a relationship are emotional, sometimes overtly hostile toward one another. Mel Gibson made headlines when his telephone calls to his estranged girlfriend were made public. Going to court does little to calm the waters. In fact, the pleadings served on the other party and filed with the court may inflame an already volatile “relationship.” Angry litigants sit on opposite sides of the courtroom with their respective lawyers between them. There is little if no opportunity for facilitated conversation between these litigants. And if they cannot communicate directly there is little hope of dispersing the anger and moving towards resolution.
The lawyers in a collaborative file will strive to overcome the anger, not feed it, and may call on other professionals, such as social workers, to assist. This “Team Approach” is one of the benefits of the collaborative process. Obviously if there are real threats to the emotional or physical safety of one of the parties the collaborative model is not appropriate. If evidence of violence or threats of violence emerge during the process it may be necessary to terminate. However, where the hurt and resentment of one or both parties boils over into anger, the process and the players (including lawyers, mediators, coaches or mental health professionals) has much to offer.
Beverley A. Martel, B.A., LL.B., LL.M.(in ADR)
Barrister & Solicitor, Mediator, Collaborative Practitioner
Past President, current Director Peel Law Association
Director Ontario Deputy Judges Association
Weir Nakon
1290 Central Parkway West, Suite 710,
Mississauga, ON L5C 4R3
Phone (905)279-7930 (223) Email: bmartel@weirnakon.com
Over 30 years ago, I handled my first hotly contentious matrimonial file. After listening to my client and spending hours typing an affidavit outlining all the horrific things her estranged husband had done to her and the children, I couldn’t help but empathize with her plight. After serving the other side with this material, we received an epistle from the estranged husband that alleged equally outlandish and egregious behaviour by my client. As any rational individual would, I concluded that one, if not both, were pathological liars since how could both have lived in the same household and have representations of reality that were so divergent. The litigious environment encouraged a further volley of attacks and counter attacks that ensued to the point where one wondered if either should be entrusted in caring for their children. Yet a judge had to decide what was best for those children. The real tragedy is that those parents, consciously would convey to the children their total enmity for the person that they had chosen to be the parent of their children.
Times have not changed much if you were to walk into a family law courtroom today. You still see people who were once madly in love with one another, recounting history through the lens of hurt and anger portraying their spouse as an abhorrent individual.
Societies used to find all kinds of behaviours acceptable that we would no longer tolerate; smoking in cars with the children a captive audience, corporal punishment in the home and school….Yet, contested family law cases still result in mudslinging between parents and hiring the gunslinger advocate to attempt to annihilate the other parent.
The wisdom that comes with witnessing the train wrecks of thousands of marital breakdowns, as well as seeing the damage to future generations, led me long ago to conclude that in the vast majority of cases where a marriage breaks down there is rarely a hero and a villain. Usually, there are two people who had the best of intentions when they started out, but along the way things broke down and they are separating. The parties I referred to were not “bad people” but the adversarial process exacerbated an already highly charged emotional situation which led to allegations and counter allegations that made them seem like terrible people.
The collaborative process however, by contrast, provides an opportunity for separating parties to resolve their differences, with the assistance of experience professionals, in a forum that is conducive to attacking the problems and not the other person. The net result is that the solution is usually much faster and far less damaging to the parties and the children.
While I was always settlement oriented, I was led to the collaborative process about ten years ago because I found that in most cases, it provides a forum that is conducive to relieving the emotion and accentuating the focus of productive discussions that lead to a solution that is int he best interests of the family as a whole.
Couples going through a separation are usually in a highly emotionally vulnerable state and can be more easily influenced than at other times of their lives. Not all cases can or should be channeled into the collaborative stream but for the vast majority it is a far less damaging and more productive environment than the “mudslinging environment” of the adversarial world.
I was a grocery store line up the other day maximizing my wait time by reading the cover of the National Enquirer. Divorce Scandal was the flavour of the week.: read about Kim Kardashian, Will Smith and Jada Pinket , Demi Moore and Ashton Kutcher. Read about the details; allegations of abuse, of adultery, multimillion dollar settlements.
Think about your own separation. How would you like the details of your relationship and financial circumstances made public? Think because you’re not a celebrity your affairs (money matters and the other kind) will be shielded from public view? Think again.
As soon as you (or your partner) commences a court application a file is created, a file that can be viewed by any member of the public with enough curiosity and time on their hands to attend the courthouse and ask to see the contents. Are you bringing, or responding to, a motion for support or custody? Except in rare instances motions are heard in open court and the arguments made by you, or your lawyer, are made in a courtroom full of other lawyers, other litigants, their friends and family as well as court staff. How would you feel if all those assembled were told how much you earn and what your debts are, or perhaps how your spouse cheated, or is an unfit parent? What if your partner is making those statements about you? Think no one is listening? Maybe, maybe not. What if a co-worker, or neighbor just happens to be in court that day? Feeling uncomfortable yet?
Suppose you manage to avoid motions and go straight to trial? (after waiting months or years to get a trial date) That ‘audience”, even if it’s just court staff, will be listening to you on the witness stand, reciting details of your personal life, defending yourself against the allegations or demands of the other side. When the trial is over the Judgment may be reported. Now anyone with a computer can search for and read that decision. Trying to shield your children or other family members from the reasons given by the trial judge? How do you shield them from information so easily accessed over the internet ?
The good news is that it doesn’t have to be that way.
When Prince Charles and Princess Diana split they negotiated a settlement, which undoubtedly involved millions of dollars. Despite much speculation no one was privy to those details because they wisely avoiding going to court.
The collaborative process is confidential. What is said at meetings stays there. Documents are exchanged between counsel, not filed as part of a court record. No one need see your Separation Agreement unless you want them to. Sound like a better way?
Protect your privacy. Keep things confidential. Go collaborative.
Beverley A. Martel
Collaborative lawyer and a proud member of the Peel Halton Collaborative Family Law Practice Group
I call collaborative divorce the “holistic approach” to divorce. Many, when faced with divorce, feel that they must have their interests protected and they want to have a lawyer represent them, to fight for their just half. Unfortunately, in looking for representation, divorcees often don’t realize that they are taken into the process that that lawyer practices without weighing their options. There are many different processes of divorce and it is important to understand the costs and benefits to each process. The costs can be in the form of legal or emotional costs. Emotional costs can stay with the family long after the negotiations end. It is important to understand which process the lawyer you visit practices so that you own your own process, rather than being directed into one that doesn’t suit your family.
Pictures speak a thousand words so I thought you might be interested in this short, complementary clip explaining the difference in the collaborative approach from the perspective of collaborative family law lawyers, divorcees, the children of divorce, financial and family professionals.
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
