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When a couple decides to end a marriage, they have options regarding the decision-making process by which they will structure the financial and co-parenting aspects of their new lives: mediation, collaborative family practice and litigation (taking the dispute to court).
When you start out on this process, couples will be asked to explore their respective concerns and positions in relation to a number of important issues:
I frequently tell clients that the process of dissolving a marriage has two phases — first, the substantial work of negotiating the terms of your settlement and signing a separation agreement. When that first phase is done — in effect the hard work of formalizing the separation — then the parties are in a position for one to request a divorce, which for some people feels like icing on the cake in comparison to the work involved in getting to a signed separation agreement.
Amendments to Canada’s Divorce Act, which took effect in March 2021, require divorcing spouses to try and resolve their differences outside of court, wherever possible, through alternative dispute resolution.
There are good reasons for that. Litigation is a time-consuming, expensive and emotionally exhausting ordeal which is designed, ultimately, to have a judge make the final decisions by which the parties will live their future lives. By contrast, when families settle their issues through mediation or collaborative family law, they have agency and ownership over the resulting settlement.
Family lawyers have long recognized that traditional litigation is poorly adapted to resolving family law matters, especially where those matters involve children. At Morgan and Philips, our team of Ontario family law lawyers are settlement-focused, and, wherever possible, we advocate for a non-adversarial approach to resolving the conflicts associated with ending a relationship.
In my last post, I explored how divorce mediation works and what to look for in a family mediator. In this post, I will explain what collaborative family practice is and why it’s an effective tool for negotiating a fair settlement following a separation.
Collaborative practice is a dispute resolution process where each spouse hires a lawyer who identifies as practicing collaborative family law. Both spouses and their lawyers sign an agreement promising to work together and find acceptable solutions to issues on which they can’t agree, including financial matters and those related to their children. The role of the lawyers is to advise and assist their clients in negotiating a settlement agreement.
“The lawyers are hired to reach a settlement, not to go to court. If the collaborative process ends without reaching an agreement, the lawyers withdraw from the case,” according to the Ontario Association of Collaborative Professionals.
During the consultation process with new clients, I explain the two options for settling their separation or divorce outside of court: mediation and collaborative practice.
In mediation, the family mediator works as a neutral third party to help you and your spouse reach an agreement on the issues arising from your separation. The terms you agree to are set out by the mediator in a Memorandum of Understanding (MOU), which is used as the basis for your separation agreement. It is recommended that each party review the MOU with their own family lawyer to ensure the agreement serves their best interests.
In collaborative family practice, the team — you, your spouse, your lawyers and any other professionals that are involved — discuss and analyze various options for settlement. Once all the issues are agreed on, one lawyer prepares a separation agreement, which is reviewed by the other party and their lawyer and modified if necessary.
Clients often choose collaboration over mediation because it generates more trust; each party has their own advocate and there’s no risk that there will be a perception of favouritism or bias.
The process starts with both parties sharing their goals and priorities. We then outline the specific issues on which the couple doesn’t agree and discuss potential solutions.
It some cases, only the spouses and their lawyers are involved, but depending on the needs or complexities facing a family, the collaborative team can be expanded to include financial professionals, psychologists, social workers, co-parenting specialists, and other professionals. One of the best aspects of collaborative practice is that the parties have support from various professionals when they’re struggling to reach agreement. Most people having experienced this process advise, upon later reflection, that they felt both supported and guided by professionals from different perspectives.
The most common model involves the couple and their lawyers around one table, but, sometimes, if it’s not suitable to have both parties in the same room, the lawyers go back and forth as a team. Settlement meetings are structured discussions where you, your spouse and your lawyers communicate and negotiate directly with one another.
Most couples who choose to negotiate the terms of their separation agreement through collaborative practice are successful. Anecdotally, more than 90 per cent of families we’ve worked with have been able to achieve a mutually agreeable outcome using this process. Even with high-conflict couples who have difficulty communicating, collaborative practice can be effective. As trained professionals, we have tools and techniques to help foster communication and understanding between the parties.
Unlike litigation, an alternative dispute resolution process such as collaborative practice offers couples a unique opportunity to come up with creative and mutually acceptable solutions for their family. The professionals who lead the couple through the negotiation process take the time to get to know them and understand their priorities.
For example, let’s say one spouse has a job that requires them to be out of town frequently, either following a schedule or perhaps not. In collaborative practice, we can tailor a parenting schedule that reflects their specific situation.
You and your partner may disagree on many things, but if you have children, you share a fundamental common interest. Collaborative practice focuses your attention on what the best possible outcome looks like for all members of the family. The transition can be challenging for children, but it will be much easier when they see their parents working together co-operatively.
Another key benefit of collaborative family practice is that it gives spouses a platform to be heard. This is paramount because, often at this point, couples have lost the ability to effectively communicate with each other. Providing a safe space where each spouse is free to let their guard down and talk honestly about their worries and concerns produces positive results. In some cases, I have even seen spouses apologize to each other in regard to past grievances.
Because parties voluntarily decide to settle their issues in a collaborative environment and are guided through settlement negotiations by their respective lawyers, it’s often possible to reach an agreement faster than by mediation. Having collaboratively trained lawyers fostering the conversation can help to diffuse the emotion, allowing couples to focus on what matters most.
The success of collaborative practice depends on both parties coming to the table with a commitment to be open, honest and transparent as they work together to find solutions.
Unfortunately, some people enter the process with ulterior motives, viewing it as an opportunity to manipulate their spouse into accepting an unfair agreement. Power imbalances don’t necessarily eliminate the potential for a successful outcome, but it’s something collaborative lawyers are trained to spot and find ways to mitigate.
In Ontario, you can find collaborative professionals — lawyers, financial professionals and family professionals — through the Peel Halton Collaborative.
If you think this is a suitable option for your family and would like to discuss it further, I’d love to hear from you. You can set up a confidential consultation here.