Is Collaborative Practice the best choice for me?

In mediation, the mediator is prohibited from giving either of you legal advice and cannot assist you in putting forward your position. A mediator is neutral. The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after. Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate Consent Order of the Court. The mediator cannot prepare the court documents for you nor finalise the process. Provided agreement is reached, your Collaborative Lawyer can act for you in the divorce and prepare the court papers to obtain the Consent Order. Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process. In Collaborative Practice, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you or your partner lack negotiation skills or financial understanding, or feel vulnerable when in the sole presence of the other party, Collaborative Practice could be preferable to mediation. Mediators may still have a role in the Collaborative process if you and your partner wish to consult a mediator regarding an issue.

In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a settlement achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children. Collaborative Practice, by definition is a non-adversarial approach to divorce. The spouses (and their lawyers) pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the break-up of a relationship, and protect the well-being of children.

Collaborative Practice is guided by a very important principle: respect. By setting a respectful tone, it encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, Collaborative professionals are trained in non-confrontational negotiation, to help keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.

You and your partner must sign a binding agreement to provide full and frank disclosure of all documents and information that relate to the issues, entirely and early on in the process. The same duty of disclosure exists whatever model you choose to resolve your difficulties.

This can of course happen, as it does in both mediation and in conventional legal representation. Under the terms of the Collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your Collaborative Family Lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement. If you consider that your partner is unlikely to be honest during the Collaborative process, is likely to lie about his or her financial affairs, then Collaborative Practice is unlikely to be a good choice for you.

The settlement agreement reached during the Collaborative Practice process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if such information had been available, then it is open to you to seek to overturn the agreement, even if it has been made into a Court Order.

The reason that Collaborative Practice has been successful and developed (in other countries) is the fact that the lawyers are disqualified from acting for the clients if collaboration fails. The disqualification agreement means that all the parties, including the lawyers and clients, are attempting to achieve settlement without threatening or being subject to the threat of court proceedings when things become difficult. You are collaborating without the background of potential court litigation, and lawyers are encouraged to work together in assisting you to reach settlement. By agreeing at the outset not to go to court, you, your partner and the lawyers can be encouraged to reach creative settlements, bearing in mind the legal position but having you and your family's particular interests at the forefront of any settlement proposals.

Individual circumstances determine how quickly any divorce process proceeds. However, Collaborative Practice can be a more direct and efficient form of divorce. From the start, it focuses on problem-solving, not blaming or endlessly airing grievances. Full disclosure and open communications help to ensure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court appointments that may be necessary with conventional divorce.

Divorce is both an ending and a beginning. Collaborative Practice helps each spouse anticipate their needs in moving forward, and includes these in the discussions. When children are involved, Collaborative Practice makes their future a number one priority. As a more respectful, dignified process, Collaborative Practice helps families make a smoother transition to the next stage of their lives.