THE ROLE OF LAWYERS IN THE COLLABORATIVE DIVORCE PROCESS

There is no doubt that the Collaborative Divorce Process can bring a separating couple many benefits not normally achieve in the traditional, litigation based divorce process.In the Collaborative Divorce process, the lawyers are as committed to the settlement of the issues a couple has as they themselves are. For the process to work, everyone must agree to do their best to resolve the outstanding issues outside of the court system. Everyone must also agree not to use the kind of tactics that are common used in a litigation based case, including threats of court. The process is centered on discovering what each parties’ needs are, and on putting together an agreement that meets those needs insofar as possible.

One of the ways that the Collaborative Divorce process differs from traditional, litigation based divorce is that the lawyers are specifically hired to help the parties resolve their dispute without a nasty fight.  Each spouse retains a lawyer who is trained in Collaborative family law. The spouses and their lawyers conduct a series of four way meetings to negotiate a resolution of the issues which need to be addressed. Prior to commencing the Collaborative process, lawyers and their clients sign an agreement stating that they will not, under any circumstances, take the case to court. The concept of two sides working against each other is not even a possibility in this process.  The Collaborative Divorce process demands open, cooperative, and respectful dialogue that aims for outcomes that benefit both spouses as well as their children.

In some ways the Collaborative Divorce process is similar to mediation, however, in Collaborative Divorce, if the negotiations are unsuccessful and litigation occurs, neither lawyer can continue to represent the spouse in court and must withdraw from representing their client. This limitation has the purpose of encouraging both the spouses and their lawyers to use their best efforts in a productive and equitable manner to arrive at a resolution that makes litigation is unnecessary. The idea behind this is that spouses will be more committed and invested in the Collaborative process, and more likely to try to successfully negotiate and achieve a favourable outcome for both, if they know that they will have to go to court with a new lawyer if the Collaborative Divorce process fails.

HOW THE COLLABORATIVE DIVORCE PROCESS WORKS

Prior to each four way meeting, the parties agree to an agenda so that everyone is clear about what issues will be addressed at the upcoming meeting. During the meeting, if it is necessary, the parties can “break out” into separate rooms so that each party can meet privately with their own lawyer and hash out any contentious issues.  Once their discussion with their own counsel is finished, the meeting can resume with everyone present. At the end of each meeting, “homework” may be assigned to be done by each spouse in advance of the next meeting.  Such homework may consist of preparing financial statements, thinking about parenting schedules etc. When the four way meeting resolves all issues, then one of the lawyers typically writes up the separation agreement, which is subsequently signed by both parties.

Depending on the nature of issues to be resolved, the number and duration of meetings can vary. Unlike traditional family law where meetings tend to be conducted on a schedule determined by Court process, Collaborative Divorce meetings are independent of court and under the control of the participants and their lawyers. Furthermore, because matters are never left to the discretion of a Judge, the parties retain full responsibility and control for settlements achieved.

HOW OTHER PROFESSIONALS ASSIST IN THE COLLABORATIVE DIVORCE PROCESS

In addition to lawyers, the Collaborative Divorce process usually involves the participation of a highly trained, diverse group of professionals whose different areas of expertise are all required to help make the process work.  Many couples retain a neutral financial advisor who will help evaluate the money and property divisions for both spouses, so each gets as fair a share of the family's property as possible. It's also common for spouses using the Collaborative process to make use of mental health professionals who can help each spouse get past the emotional issues they're dealing with. Children's specialists are also frequently retained to help the parties stay aware of and address their children’s needs during the divorce process. The children’s specialist typically gets involved as a neutral third party to help the parties, with the assistance of their lawyers, put together a parenting plan that best meets the children’s needs.

All participating professionals will have names of others who are available to work in this process. Once all relevant professionals are on board, an agreement is reached between the professionals and separating couple that allows the team to work together collaboratively. The degree to which each type of professional is involved will depend on the unique needs and circumstance of the family.

As in any interdisciplinary team, spouses are requested to waive their right to confidentiality so that team members can communicate with each other. (All professionals involved are still held to the standards of confidentiality of their respective professions.) The roles of all parties are clearly laid out and discussed until both spouses fully understand the process. The signing of the agreement means that the professionals can communicate with each other and that if the collaborative process is not successful, the spouses agree that all records are protected from possible use in future court proceedings.  Relevant agreements also are made between each spouse and the professionals they work with directly.  The team then meets, either in person or teleconference, to consolidate.

How Divorce Coaches Help with the Process

Often in traditional litigation-based models of family law, the emotional turmoil that a couple experiences during the separation process is exacerbated by the adversarial nature of the court process. This exacerbation increases the emotional distress and mistrust between the separating couple, breaks down their ability to communicate effectively with each other, and destroys any residual trust the couple may have had.  This only makes it more difficult for the parties to resolve their issues, and often results in the parties having to turn to a judge to resolve the matters between them.

Even within the parameters of the Collaborative Divorce process, it is not uncommon for each partner to be in a different stage of the uncoupling process. It is not unusual, therefore, for therapists, psychologists and other mental health professionals to work within the collaborative process as divorce coaches. Divorce coaches are trained to work with the parties to help them through the separation process. A divorce coach can also help the parties maintain open lines of communication, particularly if they have children. As poor communication between parents can have a particularly detrimental effect on children, this kind of help can be invaluable in maintaining a civil relationship.

Each spouse can work with a divorce coach to provide a safety net for the difficult times that may be a part of the divorce and, if there are children involved, to develop the new co-parenting relationship.  This process helps spouses to recognize the end of their marriage and to move on to create fulfilling lives post divorce.  When children are involved, divorce coaches teach divorcing parents how to best protect themselves and their children from the risks associated with divorce in the present and to look to the future needs of their family.  This work also includes assisting spouses to clarify how they feel and think about issues, improve communication about sensitive topics, and to develop a parenting plan.

The Role of The Child Advocate

Most divorces unfortunately include children.  The child advocate is a neutral third party whose job is to understand the situation from the perspective of the children and to advocate for their best interests.  Although all team members generally try to keep the children's best interests in mind, the child advocate maintains this focus exclusively throughout the process, thereby assuring that during complicated and sometimes chaotic divorce processes, concerns of the children are not overshadowed by other, equally important considerations.  The child advocate provides an opportunity for the child(ren) to ask questions and to identify problems or worries, and provides information and suggestions to the parents and to the team, especially in the development of a parenting plan.

The Role of Financial Advisors

Many couples using the Collaborative Divorce process retain a neutral financial advisor who will help evaluate the money and property division for both spouses, so each gets as fair a share of the family property as possible. Financial consultants are often trained in both mediation as well as in the financial issues that arise in divorce cases such as dividing family assets and determining support. Divorcing spouses get help with handling immediate financial concerns as well as long-range planning. Financial advisors are able to do future-focused assessments based on various scenarios of asset and support allocations. If it is necessary to hire experts to value business interests or properties, in the Collaborative Divorce process the parties agree to jointly retain such experts. Financial specialists also help couples understand and organize their financial information in advance of meeting with the lawyers.  In this way, the lawyers can focus on finalizing a settlement efficiently thereby making the best use of lawyers' time.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you would like to know more about using a Collaborative Approach to negotiate n agreement with your spouse following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.