1. What is Collaborative Family Law?
“Collaborative Family Law” (CFL) is a new way to provide professional legal assistance to individuals who are in the midst of separation . A commitment is made that:
- Negotiations will be principled, honourable and respectful
- Issues will be resolved without going to court or threatening court action
- If either side proceed to court both lawyers will be disqualified from any further involvement in the case
- Both sides will openly exchange all important information
- The parties will be assisted in exploring as many options for settlement as possible
- The lawyers will help the parties to reach a settlement that best meets their goals and priorities
- If the CFL process is not successful for any reason (such as a failure of one of the parties to abide by the terms of the participation agreement or failing to disclose all financial information), resulting in the case proceeding to court, the participating collaborative lawyers will not litigate on behalf of the parties, and new lawyers would be retained for that purpose.
2. Is Collaborative Law for Everyone?
No. If you have you have concerns about your safety or the safety of your children, the collaborative law process is not appropriate. If you or your spouse are not prepared to act honestly in the exchange of necessary information, collaborative law will not work and will be a waste of money.
3. What types of family law issues can be resolved using the CFL process?
Most family law issues can be resolved with the CFL approach including issues regarding parenting and/or custody and access; spousal and child support; property and the family home and changes to existing arrangements. The CFL process is very well suited to craft special parenting arrangements, premarital, cohabitation and marriage contracts for both heterosexual as well as same-sex couples. A specially trained collaborative family lawyer can deal with all of these issues – but will not go to court to do so.
4. What is the Collaborative Family Law Participation Agreement?
The CFL “Participation Agreement” is a contract signed by the parties and their respective lawyers which commits the parties and the lawyers to work towards settling some or all of their issues without going to court. The participation agreement is premised on the lawyers and the parties agreeing to work creatively and in good faith. Collaborative law takes the threat of litigation out of the process – freeing the participants to problem-solve and brainstorm in creative and new ways: making seemingly impossible hurdles into manageable ones. If it turns out that court is necessary because the dispute between the parties cannot be resolved in a CFL negotiation, both lawyers must resign from the case. Your CFL lawyer would assist you by transferring your file to your new lawyer, but neither the collaborative family lawyer nor his or her law firm can continue to act for you in the court action.
5. How does the CFL process work?
The CFL process is based on a series of meetings where both the parties and their respective lawyers are present. Prior to this you would have met with your lawyer to discuss the issues of concern to you and determine whether CFL is appropriate. In addition, your lawyer will meet with or speak with the lawyer retained by your spouse (another lawyer trained in collaborative family law). The lawyers act as facilitators and will model constructive communication. The lawyers will help keep the discussions between the parties focused on the problems that the parties are trying to work out and help to find creative solutions. In CFL, you and your partner are empowered to reach decisions that will work best for both of you. The lawyers will provide legal advice and help generate options for resolution. They will also assist you to improve your listening, communication and negotiating skills. In CFL, both parties must make full, honest disclosure of finances and other important facts that are necessary to make informed decisions. If there are issues concerning children, the parents and lawyers commit to finding solutions that meet the best interests of the children. In CFL, all of the participants commit to treat one another with respect. The lawyers work as a team with the parties to provide options and choices for settlement.
6. What if my partner does not make the disclosure he/she promises in the Participation Agreement?
If one of the spouses refuses to make proper disclosure, is being less than fully honest or is participating in the process in bad faith his or her lawyer is required by the Collaborative Agreement to withdraw from the case. This provides very strong incentive to both spouses to honour their promises.
7. My partner and I do not communicate at all. How can we use this process if we can’t talk to each other?
It is fairly typical for separated spouses to have serious communication problems. The CFL lawyers will assist each client individually about new ways to communicate with his/her spouse. The lawyers will also be present to help through the rough spots, to diffuse conflict and avoid destructive communication.
8. What if we need help to decide certain issues?
It may be necessary to hire outside experts (such as pension valuators, real estate appraisers; etc.) in order to value certain assets. Input about the children’s needs may be sought from a therapist, counsellor or other specialist. Accountants may be asked for income tax advice. Before any outside assistance is obtained both parties must agree on the selection and payment arrangements for the outside professional. Any expert whose services are used will not be allowed to assist either person if the matter does go to court in the future, unless agreed to by both parties and the expert.
9. Can all lawyers be CFL lawyers?
If CFL is going to be successful, it is important that both lawyers have an understanding of and commitment to CFL principles. All London and Middlesex area lawyers who practice CFL have taken specialized training. Many CFL lawyers are involved in local associations. CFL is a relatively new approach to dispute resolution in Southern Ontario and not all lawyers have experience with the concept or have received training. If you and your partner are interested in CFL, ask your lawyer about CFL or contact one of the members of the London and Middlesex Region CFL Group for referral to a trained CFL lawyer.
10. How does CFL differ from mediation?
A mediator is a neutral person who assists parties to work out their own settlement. A mediator does not act for either party and does not provide legal advice. In a typical family law mediation, the clients attend mediation without their lawyers. Lawyers outside of the mediation provide independent legal advice to the respective parties regarding any proposed agreements. Their advice may come too late to be helpful. In CFL, each of the parties has their own lawyer present. The primary focus is an absolute commitment to settlement. Each lawyer will ensure his/her client is provided with legal advice about the issues. The parties and their lawyers work as a skilled team to obtain the best settlement possible.
11. How does CFL differ from the traditional family law negotiation process?
In CFL the parties and their lawyers commit to resolving disputes outside the court system. In traditional family law negotiations, court may be used as an ongoing threat or bargaining tool. In CFL, the parties explore options for resolution which include legal and other options. In traditional negotiations, typically only legal options are considered. In CFL negotiation, the lawyers work with the parties as a team to develop a settlement that best meets the interests of both parties – rather than only focusing on the “rights” of the parties. In CFL, the clients take responsibility for resolving the issues themselves. In traditional negotiations, it is the lawyers who maintain control of the process and the negotiation. In the CFL process there is an honest open exchange of information. No one takes advantage of each other. There is a creative effort to meet the needs of each party. In CFL the children are protected when there are parenting issues.
12. What if final settlement is not reached using the CFL process?
There is no guarantee that CFL will resolve every issue, although with a commitment to the process, most will be successful. It is possible that final agreement may be reached on all but one issue. All four participants may agree on some other approach to resolve that point which may include a decision by an arbitrator or in a parenting matter may involve the recommendations of a child specialist. If one or both of the parties decides that they do not want to continue with CFL, then both lawyers must resign from the case and no other member of the lawyer’s law firm can represent the client. The lawyers will assist in transferring the file to the new lawyer but will have no further involvement in the case.
13. Can one of the parties withdraw from the CFL process at any time?
The CFL process is voluntary and either party may withdraw at any time.
14. How much does CFL cost?
Each of the parties will be responsible for paying the fees of his or her own lawyer. In addition (with your consent), it may be necessary to hire appraisers or valuators to value certain of the assets. These valuations will also have a cost. The expense of CFL will vary depending on the complexity of the issues and the time needed to resolve them. Typically, the process will cost far less than going to court. Each of the parties will have to discuss fees with his or her individual lawyer. We believe that CFL is the most efficient and economical way for many individuals to resolve their family law.
15. What to Do After You Decide Collaborative Law is the Right Process for You?
Once you have decided that CFL may be the right process for you, you may wish to discuss this option with your partner. You should also speak to one of the members of the Collaborative Family Lawyers of London & Middlesex listed on this website.
16. Why should I choose Collaborative Family Law?
By choosing CFL, you ensure that the arrangement reached between you and your partner will be designed by you, with the guidance and legal advice of your CFL lawyer. You will be able to achieve a settlement in a manner that is respectful, creative and cost-effective. CFL provides an opportunity for you to maintain the integrity of your family even though you do not wish to remain in a partner relationship. You will choose Collaborative Family Law if:
- You seek a civilized resolution of the issues
- You want to protect the children’s relationships with each parent and extended family
- You want to maintain common friendships and avoid alienation of family and friends
- You want your personal affairs dealt with in privacy
- You and your partner want to be in charge of your own affairs, make your own decisions, plan your own future
- You want to have all options available to you, both legal and other creative solutions
- relationship issues are at least as important as money issues and
- You and your partner are willing to work together with your lawyers to thoughtfully and intelligently craft an agreement that is a win-win solution addressing the legitimate needs of both parties