Collaborative Practice is a way of helping separating families resolve their disputes respectfully and with dignity. All participants agree to work together openly, honestly, and in good faith to find “win-win” solutions to the needs of both parties and their children. Both lawyers are collaboratively trained, and additional experts such as child and financial specialists may join the process as part of the team. At the outset, a commitment is made:
- that neither party will go to court or threaten to go to court;
- that negotiations will be principled, dignified, and respectful;
- to engage in open communication and exchange relevant information; and
- to create an agreement that takes into account the highest priorities of both parties and their children.
The key difference between the collaborative process and litigation is that, by agreeing not to go to court and not to even threaten to go to court, the group can focus on developing the best settlement for the parties after brainstorming and reviewing the options.
Here are some other important differences. In Collaborative Practice:
- the negotiations are based on interests, needs, and reasons. In litigation, the negotiations are based on positions and are adversarial.
- the negotiations take place at four-way meetings with both parties and their lawyers present at mutually convenient dates and times. In litigation, the negotiations are often made at the courtroom door under stressful conditions to avoid the next court appearance, at the court-appointed schedule.
- the parties are empowered to make informed decisions. In litigation, the court imposes a decision.
- the parties share control of the process and own the outcome. In litigation, the court has control over the process and the outcome.
- the lawyers act as coaches and role models for constructive communication, providing legal advice, generating options for resolution, and assisting you in improving your listening, communication, and negotiation skills. In litigation, the lawyers act as advocates, speaking for you.
- the lawyers are always part of the team, and family professionals, child specialists, and financial professionals are available as part of the team as needed. In litigation, the support team is not readily accessible to help.
Collaborative Practice is cost-effective and timely; litigation is lengthy and financially and emotionally draining. Collaborative Practice focuses on common interests; litigation focuses on differences and polarizes positions.
In mediation, there is one neutral person who assists the parties to work out a mutually acceptable settlement. The mediator, who may or may not be a lawyer, does not act for either party and does not provide legal advice. In a typical mediation, the clients attend mediation without their lawyers. After the mediation has been completed, lawyers for each of the parties provide independent legal advice regarding any proposed agreements.
In Collaborative Practice, each party has their own collaboratively trained lawyer present at all times, maintaining the same commitment to settlement as their sole agenda. Each client has quality legal advice and support throughout the process. The lawyers work as a team to assure that the process stays balanced, positive and productive, and to guide the parties to their best possible settlement.
In my opinion, Collaborative Practice is the best of both worlds. You and your partner have your own collaboratively trained lawyer by your side throughout the process, in a safe environment to help you make the most informed decisions for the family in a respectful way. By preserving respect and encouraging cooperation, Collaborative Practice helps parents and children maintain family bonds while embracing a healthy new beginning.
Sheila Kirsh is a Toronto-based, experienced family lawyer who has been practising Collaborative Practice for several years. She is Chair, a Director, and a Founding Member of the Collaborative Practice Toronto group and sits on the Executive of the Family Law Section of the Ontario Bar Association.