What is a Collaborative separation and divorce?

Collaborative separation and divorce is a supported process in which separating couples work together with a team of committed professionals to create a separation agreement and plan for their family’s future.

In the Collaborative process, you and your former partner sign an agreement not to go to court. If one of you breaches that agreement, you both have to find new lawyers to work with you. By removing court as a viable option, which increases cost and hostility, parties are encouraged to focus on resolving matters themselves in a supported environment.

The Collaborative process allows the parties to meet individually with their lawyers and then come together, potentially with other skilled professionals in a team meeting, to resolve their family law issues without the need for court. Collaborative professionals are trained beyond their required professional training in order to provide support to clients who choose the Collaborative approach.

The Collaborative process gives control to you instead of to a judge. This process empowers you to make decisions for yourself and your family by providing you with trained professionals to assist in creating agreements that are balanced, respectful, and lasting.

Why choose a Collaborative separation and divorce?

Collaborative separation and divorce is more amicable, less expensive, and faster than the adversarial court system. This efficient and solution-focused process can be customized to your family’s needs.

The Collaborative process offers no court and no threat of court, allowing former partners and spouses and their chosen professionals to focus on reaching agreement rather than sending argumentative and expensive letters. Your professionals instead focus on using their time to educate and inform you, solve problems effectively, and contain – rather than inflame – conflict.

Top Reasons to Choose a Collaborative Approach

It’s Time- and Cost-Efficient

● Often less costly than a traditional and adversarial court case
● Flexible path to resolution that usually (although not always) results in a signed separation agreement with 3 to 4 meetings
● Parties can choose to focus on what is most important to them
● Less time stress than a traditional mediation

It’s Supported and Empowering

● Flexible negotiation process that can be customized to suit the needs of each couple and family
● For families with children, it is child-focused
● Gives the spouses control over process and outcome
● Support from team members helps the spouses stay focused, creative and effective during discussions

It’s Future-Focused

● Sets up respectful relationships for the future
● Gives hope while preparing everyone for new lives

It’s Amicable

● Minimizes conflict and stress
● Creates a calm and cooperative environment

Getting Started

If you and your former partner or spouse are hoping for a collaborative, resolution-focused approach to separation, contact a local Collaborative lawyer, financial professional, child specialist, or parenting or divorce coach.

If you’re not sure whether the Collaborative process is right for you, review this website and reach out to a Collaborative professional to book a consult.

FAQs

Collaborative process, mediation or mitigation?

Sometimes it helps to see what the different options offer. Here is a comparison of the most important features clients are concerned about.

WHO IS IN CONTROL?

Collaborative

Clients are in control of the process. Yes there are protocols for the steps and pace of a collaborative file, but clients can customize a wide variety of decisions along the way so that the process meets their needs. You and your spouse are guided through settlement negotiations by your own lawyers with the assistance of family and financial professionals who are focused on your goals and priorities.

Mediation

The mediator designs a customized process, after intake sessions with each client. The mediator discusses the issues to be resolved with both spouses with a view to reaching a settlement. If an agreement in principal is reached, the mediator will draft a Memorandum of Understanding for you to review with your respective lawyers. You will each need to retain a lawyer to get advice on the proposed agreement and to prepare or finalize the final written agreement.

Litigation / Arbitration

Judges or arbitrators are in control of the process. The proceedings and pace of a court action are governed by the Family Law Rules. Judges decide any factual disputes and apply the applicable statute to the issues to be decided. Arbitration is a form of private court, where a jointly retained arbitrator will decide the legal issues to be determined.

DEGREE OF ADVERSITY

Collaborative

A primary goal of collaborative divorce is to minimize conflict and maximize the opportunities for settlement. This is achieved by ensuring that the information that is required to make decisions is available and that you have the support you need from collaborative professionals to make informed decisions. Prioritizing goals and interests, respectful communication and financial transparency minimize the possibility of adversity.

Mediation

Mediation, like collaborative, is an interest-based negotiation process which aims to minimize adversity. The mediator as a neutral party will guide you through the negotiations and assist you to reach an agreement in principal. Each party will get legal advice from their own lawyer who may or may not be part of the negotiations.

Litigation

Litigation, by its nature, is an adversarial process— whether in court or at an arbitration. Strategy and a desire to “win” are the natural by-products of entering into a court process. You and your spouse assert legal positions from the very start and head down a road entrenched with conflict. This process is however necessary in some cases where one spouse refuses to negotiate in good faith or produce relevant financial disclosure.

WHAT COSTS ARE INVOLVED?

Collaborative

Cost-effective, notwithstanding there may be more members on the team; in fact, the additional team members may result in lower total costs. Financial and family professionals contribute their specialized expertise; work is distributed among team members to ensure the work is done by the most qualified person at the lowest price.

Mediation

Cost effective, as you and your spouse are sharing the cost of the mediator. However costs can rise once lawyers are brought in to provide independent legal advice for you and your spouse, particularly if they do not support the agreement in principal reached during the mediation process.

Litigation

Expensive. The court process requires a lot of time spent by the lawyers in preparation of the required court documents as well as preparing for each step of the process itself.

TIMELINES

Collaborative

Your team can start working on your settlement as soon as they have been retained. How long a resolution takes depends on the complexity of the financial information to be assembled and you and your spouse’s ability to work together to resolve conflict areas. Your lawyers and other professional team members are all focused on guiding you through the settlement process efficiently and with the goal of achieving your primary objectives. Most cases are resolved within several months to a year from the start of negotiations.

Mediation

Your mediator will meet with you and your spouse to moderate your negotiations. After the mediation process is complete, you and your spouse will each meet with your own lawyers to review the issues and outcomes of the mediation process. Sometimes this can be achieved relatively quickly, within a couple of months, but sometimes it can take longer, particularly if issues need to be re-addressed.

Litigation

Litigation is a long, drawn-out process which can take many months or even years to come to completion. There are settlement conferences along the way in which a judge or dispute resolution officer tries to help you and your spouse settle. The court controls when you can move to the next step in the process and there are long delays in some jurisdictions.

USE OF OUTSIDE EXPERTS

Collaborative

Financial and family professionals are commonly included as part of the team. In addition, other experts such as neutral business valuators, real estate valuators, or child counsellors are recommended whenever it is believed to be helpful or necessary to resolve issues or to achieve your goals.

Mediation

Outside experts are not part of the standard mediation process, but can be brought in when agreed to by both parties. Jointly retained financial experts are often used in a mediation process, such as a jointly retained business or income valuator.

Litigation

You and your spouse hire your own experts. Two experts means two different opinions adding to the adversarial nature of the process.

INVOLVEMENT OF LAWYERS

Collaborative

Your lawyer is trained to negotiate using collaborative and interest based negotiation principals. They are present throughout the collaborative process, to provide you with legal advice, guidance and support. The lawyers may disagree on some legal issues that arise; options to resolve these differences will be discussed with both spouses. The process ensures that you and your spouse make all decisions relating to your settlement.

Mediation

Lawyers are not generally present during mediation sessions with their clients. Each client retains their own lawyer to give advice either during the mediation process or after an agreement in principal has been reached. More complex cases may require that counsel be present at the mediation sessions. The lawyers may or may not be trained in interest based negotiation techniques.

Litigation

Lawyers focus on court procedure and strategy to advance a client’s legal position. They communicate directly with each other and act as your voice in the courtroom. You do not communicate directly with your spouse or with his or her lawyer to negotiate a settlement. The lawyers may or may not be trained in dispute resolution techniques.

VOLUNTARY VS. MANDATORY

Collaborative

Collaborative divorce is a voluntary process that starts off with each spouse and each collaborative professional signing a Participation Agreement.

Mediation

Mediation is a voluntary process unless it has been mandated by the court or a domestic agreement.

Litigation/Arbitration

Litigation is initiated voluntarily by one spouse. Once one spouse has begun the court process, the other spouse is obligated to respond within the court process within strict time lines. Arbitration is a voluntary process that both parties agree to undertake by signing an Arbitration Contract.

LINES OF COMMUNICATION

Collaborative

During collaborative meetings, you are encouraged to share your thoughts and ideas, rather than have your lawyer speak on your behalf. Between meetings, your communication is generally with your lawyer, as well as the neutral financial and family professionals on your team. All professional team members communicate to ensure the case is progressing towards settlement and to plan next steps.

Mediation

You and your spouse will each be speaking on your own behalf during the mediation session if your lawyer is not present.

Litigation

All communication is through your lawyer and your spouse’s lawyer; nothing is communicated directly between you and your spouse or by you to the court or arbitration forum, unless you are giving evidence.