Battling it out means court involvement. How can the parties to a marriage breakdown settle their rights and obligations without going to court?
It's not possible to avoid court involvement entirely, if we are referring to a divorce. However, the involvement is reduced to a minimum when all other claims arising out of the marriage and separation are settled in a written agreement.
The agreement is filed in the court as part of the divorce application. The divorce then proceeds as a matter of paperwork at the court registry level without requiring either the parties or their lawyers to appear before a judge. Although it's called a separation agreement, it governs the rights and obligations of the parties long after a divorce is obtained. It may be negotiated by the parties themselves, or with lawyers coaching from the sidelines, or with the help of a mediator with or without consultation with lawyers, or finally, by the parties and collaborative lawyers working as a team. Negotiating an agreement on your own is not wise, except in the simplest of circumstances.
Mediation is certainly preferable to working out the terms at home, but generally has the disadvantage that, if lawyers are consulted at all, they are left outside the process or brought in too late. Collaborative negotiations, a recent development from mediation, offer the advantages of mediation with the added bonus of legal protection from the beginning. The unique feature of collaborative negotiations is that the lawyers are totally committed to working out a reasonable and fair settlement -- so much so that if they fail in this purpose, neither they nor anyone in their firms can represent the clients in subsequent litigation. Since going to court is not an option -- nor is even the threat of going to court -- keeping the negotiations on track to a successful completion requires the ditching of adversarial approaches that are second nature to most lawyers.
In place of these approaches, collaborative lawyers learn to treat obstacles to agreement as mutual problems to be resolved; to enlarge the field of choice by helping the clients dig down from their rights-based positions to discover their underlying interests; to help the clients package these interests in parcels to be traded between them to their mutual satisfaction; to encourage the clients to take charge of the negotiations; to attend four-way meetings with the clients as their negotiation guides and legal advisors; to demonstrate active listening, respectful communication, and good negotiation technique; and to participate with everyone else at the table as a responsible team member centered on the clients' need to reach an agreement that is satisfying and durable
For more information on collaborative negotiations, visit the website of the Toronto Collaborative Family Law Group. The information includes a list of the members of the Toronto Group and contains links to collaborative family law sites in other places.
James C. MacDonald, Q.C., is a retired partner in the family law practice of MacDonald & Partners in Toronto.