“Can collaborative divorce help me to settle my divorce more amicably? How is it different from divorce mediation?”
Divorce mediation involves polarized sides meeting with a third party neutral in an environment in which they hope to arrive at a compromise position where both parties are, to put it succinctly, equally happy and equally happy.
Collaborative divorce works on a completely different basis, although there are some points of similarity in that compromise and the pursuit of an out of court resolution are common to both divorce mediation and collaborative divorce.
Collaborative law involves two parties who have employed specially trained lawyers called collaborative lawyers to engage with them under a signed Collaborative Participation Agreement in a process of finding common ground, common goals and paving the way for on-going discussion that will continue between the divorcing couples, hopefully, on an on-going basis long into the future as they will have learned through active listening to hear, process and understand the other person’s viewpoint and to respond without anger and rancor to build future positive responses to issues that may arise in the future. The parties may work only with their collaborative lawyers or may work in a team approach, including divorce coaches, financial analysts, and other mental health professional around the needs of the children in developing an approach for now and in the future.
The result of a collaborative negotiation is that success often breeds future success in on-going discussions, for example, as the children get older and their needs change with time.
While a divorcing couple may bring their individual lawyers, to a mediation usually these lawyers do not have the additional skill set of having collaborative training (which teaches them a shift in thought process) which allows them to hear what everyone at the table is saying but to also hear below the surface not only what people are saying but what they are trying to express as to their needs. By finding common goals and common sense resolutions, the collaborative team, which involves the parties, their lawyers and the other professionals, work out a process for resolution and build on success to larger successes? It is, often, not a process of the parties being equally unhappy and equally happy, but just equally happy with the result.
Because in a collaborative divorce the parties feel heard not only by their own lawyer but even by the other lawyer (although both lawyers retain their role as advocates for only their client), there is a sense of freedom to be completely open, completely honest and everyone feels heard.
Because as part of a collaborative participation agreement, both parties agree that they will not change health coverage, life insurance or run off immediately to court, the panic caused by the on-going threat on going onto litigation is removed allowing everyone the ability to think rationally and develop solutions. The mind set in a collaborative process is resolution and common goal focused. Bullying is not permissible and dignity is preserved.
Because a collaborative participation agreement ensures that neither party can run off to court and that if the process fails both lawyers fire themselves and that experts’ reports received in the collaborative process cannot be used in court (unless otherwise agreed), neither party is going to be eager to jettison the process and set off on a march towards court.
A divorce mediation process does not forbid one of the parties to resign from the process and go off to court. It is much more difficult to resign from a collaborative process as it means starting off with a new lawyer and without the expert reports received to date.
It is the process of learning how to listen and truly hear that helps make a collaborative process one that enshrines teaching of the parties to work together well. Collaborative law allows for the truly, win/win solution
Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce.