Conflict Resolution – Mediation – Collaborative Divorce
Collaborative Separation – Negotiation out of Court
Collaborative Divorce/Collaborative Separation
Collaborative family law for divorces and separations began being practiced in 1990 in the state of Minnesota in the United States. Its founder is the American lawyer Stu Webb. That field of practice began in Quebec in 2003.
The basic principles of collaborative divorce law are:
- team work
- interdependence between the spouses and their collaborative lawyers
- negotiations based on interests and needs
- court is not an option.
Collaborative law is a negotiation process involving four participants: the two spouses and the two collaborative lawyers. The negotiations are held in a spirit of collaboration, therefore working together to settle amicably the issues of the separation. The spouses and their collaborative lawyers have settlement meetings to share the interests, the needs, the desires, the concerns, the objectives of the spouses and of their children, to negotiate and to reach agreements.
One of the premises of collaborative law is to first start by negotiating in order to resolve the conflicts, instead of starting first with legal procedures and litigation.
It is estimated that 90% of family cases that are filed in court do not go to trial for a hearing on the merits, meaning once the file is complete and ready to be heard by a judge. They are rather settled beforehand. So only 10% of contested files go to trial on the merits. Thus, 9 times out of 10 the parties in litigation before the courts end up agreeing within a period of time going from a few months to a few years. One of the foundations of collaborative law is: Why have recourse to legal procedures and to the courts when parties can reach agreements in any event!
Another premise of collaborative law is to negotiate based on interests rather than on positions. The spouses/parents in a collaborative divorce or collaborative separation express at the beginning of the negotiations their present and future interests, needs, wishes and concerns.
Collaborative divorce/collaborative separation may allow the spouses to divorce/separate with dignity and to have an honorable divorce/separation. A GOOD DIVORCE OR A GOOD SEPARATION is possible when the spouses, assisted by their collaborative lawyers, seek to understand each other’s interests, needs and concerns, help each other in this confused period of their life, and search for mutual acceptable solutions. To collaborate efficiently there must be respect and civility amongst the four participants during the entire process. Any relevant information and document must be communicated between the spouses so that they can take enlightened decisions. All communication and information exchanged during the collaborative law process is confidential and without prejudice.
Collaborative divorce or collaborative separation is a process that the spouses must now consider as an option for negotiation when they want to divorce or to separate. That option situates itself between mediation and litigation. In family mediation, the mediator cannot give any legal opinions even though he/she is a lawyer or a notary. In litigation, the spouses are represented by their lawyers in a process of contestation and confrontation. In collaborative law, each spouse is assisted during the process by his/her collaborative lawyer who is also at all times his/her legal counsellor. Creativity has its place in that process in order to find solutions that meet the needs and the concerns of the parents and the children.
When the parties have concluded their final agreements, the collaborative lawyers prepare and draft a settlement agreement that is signed by the four participants. Afterwards, the spouses may mandate the same lawyers to file their agreement in court, along with the required procedures, so that it may be homologated and judgment be rendered.
Good reasons to choose collaborative divorce/collaborative separation
It’s what you think is best for you and your children
Decisions taken in light of the children’s interests and needs
Decisions taken in light of the spouses’/parents’ interests and needs
To maintain your parental image
To maintain your parental relationship
To share information
To collaborate, not compete
For respectful negotiations
Having your collaborative lawyer as counsellor at your side at the negotiating table and throughout the process
To have private and confidential negotiations
To have a framework in which to negotiate
To empower yourself in the decision making
You decide your own solutions, not the judge
To settle collaboratively out of court
To have custom-made agreements
To regain harmony
To regain peace of mind
To have an honorable divorce/an honorable separation
To have a good divorce/a good separation
To avoid contested legal procedures
To minimize the legal costs
To avoid court delays
To avoid the stress of preparing to go to court and going to court