Q: I recently separated from my spouse and my friend raved about settling with her husband using “collaborative law.” What is it, and should I do it?
A: Collaborative law is seen as a kinder, gentler method of resolving disputes. It was founded by a lawyer from Minnesota who, after more than 20 years of doing divorces the regular way, decided there had to be something less destructive.
It provides traditional protections, in that you have your own lawyer looking after your rights. However, it is specifically designed to keep you out of court and settle the dispute rather than litigate it. This will
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hopefully save money and emotional wear and tear.
Collaborative law is simply a process for resolving issues with the help of lawyers but without going to court. All parties including the
lawyers involved sign a contract, in which they agree not to go to court.
All involved agree to work co-operatively and behave in a respectful way to find solutions that work for everyone. Lawyers have to step outside their traditional roles of “warriors” to make this work, and the clients have to agree to be nonadversarial.
To succeed using collaborative law, everyone has to agree to communicate openly and respectfully. You agree, in writing, to listen effectively. You cannot interrupt or yell. Full disclosure of all facts affecting the decision-making process must be made. The meetings are to be kept confidential. Each side usually pays his or her own lawyer.
Usually about six meetings are held. At first, the meetings are about setting the ground rules, then communicating and disclosing information including finances, and then issues that there are disagreements on.
Both clients and their lawyers are present at all times during these meetings. As you work through the issues you get closer to middle ground and resolving the dispute.
If you settle, the lawyers will prepare an agreement recording the terms of the settlement. Each of you has an independent adviser to make sure the written settlement accurately reflects what you agreed upon.
Sometimes, no agreement can be reached. If that happens and the matter proceeds to court, both lawyers involved in the collaborative process withdraw and cease to act, and each party must then get a new lawyer. This ensures that someone who took part in this process is not disadvantaged by the disclosure made during the meetings. It also ensures lawyers do their best during the meetings to resolve all disputes between the parties. Where collaborative law is used widely, the load of cases in the courts has dropped.
Whether you should try it depends on you and your spouse. Do you think both of you will be willing to act in a respectful and candid manner? Will everyone be honest? If so, give it a try. It’s faster, cheaper and often more satisfying. If you do not have confidence these basic concepts can be met by all involved, then it’s probably not for you.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
