"I'm interested in Collaborative Law as a means for resolving my divorce, and I'm wondering if my spouse and I are good candidates. Under what conditions does it work -- and when does it not work?"
As attractive as the Collaborative model may be, it is not for everyone. In some situations, the process will fail to result in an agreement. If this happens and you have to proceed to court, the Collaborative lawyers cannot continue. You will have to hire a litigation lawyer to represent you in court. This can be frustrating and expensive. So how do you know if the Collaborative model will work for you?
From the outset, there are certain cases that are clearly unsuitable. For instance, if your spouse has demonstrated bad faith, Collaborative negotiation will likely be unsuccessful. Is your spouse hell-bent on punishing you? Has he or she removed valuable assets without your consent? Have your children been unjustifiably kept from you? In cases like this, skip the Collaborative approach. You probably need fast action from a family law litigator.
Some proponents of Collaborative practice do not recommend it if there are serious alcohol/drug issues or mental-health problems. Views differ on whether the Collaborative model works if there has been a history of domestic violence: some argue that the face-to-face meetings are inappropriate, while others maintain that the process can work as long as safeguards are in place to ensure equal bargaining.
The Collaborative process requires:
What if you are hurt, not familiar with family finances, or distrust your spouse because of infidelity? What if open communication was always a major struggle? What if, at times, you would like your spouse to fall into a crack in the earth? Can collaborating on an separation agreement work? Yes, it can -- with the assistance of specially trained lawyers and often other members of a "team," such as jointly retained child specialists, financial experts, and mental-health professionals. The key is a commitment by all involved to find mutually acceptable solutions.
Collaborative practice offers a welcome alternative to traditional lawyer-to-lawyer negotiations, mediation, arbitration, and going to court. No one process works for everyone. Consider your options carefully so you can make an informed choice; the you way resolve separation issues may have a lasting impact on your future.
Sharyn Langdon is a partner at Dickson, MacGregor, Appell LLP in Toronto and practises Collaborative family law. She is a founding member and sits on the Board of Directors of Collaborative Practice Toronto.