Collaborative Practice
Collaborative is a respectful, interest-based process to deal with everything family law. It is one of the "Alternate Dispute Resolution" options available to spouses in Ontario. Most often, it is used to negotiate issues arising from the breakdown of a relationship, whether it is a common-law relationship or a marriage. However, it is also an appropriate process to negotiate a marriage contract or cohabitation agreement, parenting plans, and even changes to a previously signed agreement.
How is collaborative practice different than litigation (court)?
- Only professionals specifically trained in Collaborative Practice can offer this approach to clients. This gives parties reassurance that the professionals involved are knowledgeable and aware of conflict triggers, and have learned tools to maintain an amicable and respectful negotiation, even when the discussions involve charged emotions.
- In Collaborative Practice, clients lead the way and, with specialized support, reach customized solutions that meet their unique needs, increasing the likelihood that the agreement will be respected and its terms will be long-lasting. In contrast, in litigation, it is a judge who will make the decisions, with minimal knowledge of your unique circumstances, and often without ever meeting your children.
- In Collaborative Practice, we approach the case as a team. Instead of arguing positions, the team discusses interests. Instead of exchanging demanding letters, we have team meetings. Instead of fighting, we talk and brainstorm solutions.
- The Collaborative team often includes a financial professional and a family professional. The financial professional may be an accountant or a financial advisor. They will help organize the clients' financial documentation, provide insights into the tax and benefits implications of possible solutions, and possibly assist in planning to ensure the clients' financial health under the new circumstances. As they can work on financial issues more efficiently, especially when jointly engaged, this approach tends to be cost-effective compared to lawyers working on the financial documents. The family professional is a mental health professional. They will not only assist in discussions affecting parenting issues but will also contribute to ongoing discussions, ensuring that emotions are addressed so that clients are better prepared for productive settlement discussions. Additionally, their costs can usually be deducted from taxes paid.
How is collaborative practice different than mediation?
- In Collaborative Practice, clients receive ongoing legal advice. The lawyers are involved in the discussions and drafting the agreement, which is signed when negotiations reach a final settlement.
- In mediation, after discussions take place, the agreement will need to be drafted, preferably, by a lawyer. Both parties should obtain Independent Legal Advice (ILA) before signing the agreement. At that time, the lawyers providing such advice may not understand the solutions reached and advise the client against signing the agreement. Often, parties second-guess their decisions, and no binding agreement is signed.
- In mediation, clients do not count on specialized support from financial and mental health professionals.
- It is not uncommon for parties to sign agreements at mediation without fully understanding their rights and obligations, which can often lead to increased conflict and future litigation.
Want to learn more about collaborative practice?
Explore the information on the Association of Collaborative Lawyers (OACP) and find out whether the collaborative approach is right for you.
Camila Motta is a collaborative lawyer and a member of the Collaborative Divorce Waterloo Region group and the Ontario Association of Collaborative Lawyers.
Questions?
Contact camila@revivelaw.ca to obtain more information about the services provided.