Collaborative family law has grown in popularity over the last 25 years and has been embraced by family law practitioners to varying degrees. The collaborative family law movement began in the Western American states and was later adopted in British Columbia as one of the first provinces in Canada to embrace a shift in family law towards alternative forms of dispute resolution. Since that time, many lawyers across the country have embraced a transition to the collaborative process, perhaps in light of the fact that most family law cases settle before they reach the adjudication phase of litigation.
Collaborative family law took hold in Lindsay in 2012 when a group of local family law lawyers completed the necessary training and established the Kawartha Collaborative Practice group. Many family law lawyers are shifting towards seeking a method of resolving family matters in a more supportive way. This phenomenon, together with the growing barriers to accessing the judicial system, has led to a drastic increase in families choosing to embrace the collaborative process. The current legal system has been criticized for being ineffective and inflexible for adjudicating the many issues associated with family law matters. However, the recent Bill C-78, which introduces amendments to the Divorce Act, shows direct movement towards recognizing the collaborative process as a viable alternative dispute resolution process.
Indeed, settlement may be the most attractive option for litigants, as adjudication in the family court removes a great deal of control with respect to a family’s financial and structural future. Parties engaged in family law issues are typically dealing with a host of other emotional and financial uncertainties, which the traditional legal model is not able to address holistically. Additionally, many individuals involved in the family law system become frustrated with the expense, investment of time, and the lack of control they experience while litigating such personal matters.
In contrast, the collaborative process is focused on individual and family goals and interests and offers a method of achieving flexible yet legally binding solutions without pursuing costly and unpredictable litigation. Process goals include respectful communications, forthright exchange of documentation, confidentiality, and involvement of various collaborative professionals who strive for problem solving. The collaborative process is truly all encompassing and often includes various professionals trained in the collaborative approach, such as financial advisors, mental health professionals, social workers, and negotiation coaches/facilitators.
In the collaborative process, lawyers are specially trained to remain focused on settlement. The parties sign a Participation Agreement which governs their behaviour throughout the process. The parties and their lawyers arrange “team” meetings which are structured to allow individuals to actively participate in creating solutions that are realistic for their family and which emphasize their main goals and interests. The main caveat of this approach is that it is essential that the parties are committed to resolution and are able to consider or appreciate the issues (to some extent) from each other’s perspectives.
A primary critique of the collaborative process is the inevitability of an impasse between the parties resulting in either coercive bargaining or a failure of the process. However, there are several options available in the collaborative process to overcome such an impasse. The addition of neutral professionals to the collaborative process may decrease the chances of the parties reaching an impasse. Parties who are able to hear one, concise position regarding their family’s financial matters directly from trained professionals may be less likely to fixate on one single financial position, and more likely to agree on a financial solution. Likewise, parties who have received the benefit of a social worker’s skill set may be less likely to escalate emotionally and dig in their heels when attempting to reach a settlement. In the case of a severe impasse that cannot be overcome by the collaborative team, one or two deadlocked issues may be referred to an outside mediator or arbitrator for recommendations or a final decision.
The rebuilding of a basic foundation of trust between parties is a central component to the collaborative process, even if this trust is limited in scope. Parties must learn how to work together, even if only with respect to limited situations, such as those relating to their children’s best interests. Once this trust-building process begins – even if only in certain areas – impasses on other issues may be less likely to occur. Given the unique requirements of the collaborative process and the challenges associated with unique family dynamics, it may not be right for every family. However, unlike litigation, the collaborative process is flexible and ensures that both parties are able to be involved in the process of designing creative solutions that meet the unique needs and goals of their family. A meeting with a trained collaborative family lawyer will assist in determining whether the collaborative process is right for you and your family.
Amelia Rodin, WARDS LAWYERS PC
This WARDS LAWYERS PC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances. More information? We’re here to help – and www.wardlegal.ca. © WARDS LAWYERS PC (2019)