Collaborative Family Law
The Collaborative and Mediation process
are the most cost-effective ways to formalize terms for a
A cooperative setting allows the most cost-effective way
to formalize terms for a Separation Agreement. This kind of
process may be appropriate if you and your partner are able
to sit together at the same table, either with your own collaborative
lawyers or with a mediator (with or without separate independent legal
counsel). It is the role of the mediator to ensure that a process is in place for the parties to feel safe so they can say what is important to each of them. The collaborative process and mediation are described
|| A collaborative process uses the lawyers of both parties
as negotiation coaches and legal advisors to their respective
clients, with the parties having agreed in writing to
settle their issues without fighting in court. Both lawyers are also trained mediators.
|| The parties themselves decide when to schedule meetings
and what to discuss, and do the actual negotiating themselves.
When the process is complete, the clients jointly sign
an agreement documenting the outcome.
With the collaborative process both lawyers are involved
from the outset, so both parties are protected in that
regard and represented by counsel who support the fairness
model arrived at by their respective clients.
||Interdisciplinary teams may also include a divorce coach
for one or both of the parties (perhaps a psychologist
or other mental health professional), a child specialist
for the children, or a financial advisor.
||Clients retain control over the process,
instead of leaving it up to a judge who may tend to split
things down the middle. Stuart Webb, who initiated the
collaborative process a couple of decades ago, gives the example
of two people fighting over an orange which they end up
dividing in two; one takes home half and squeezes it for
the juice while the other takes home the other half and
peels it for the rind. If they had disclosed what was
important to them, each, each would have been able to
have what they wanted from the whole orange (all the juice
for one and all the rind for the other).
||The collaborative process, with an emphasis on communication,
teaches clients the skills to settle the immediate problems
as well as future parenting disputes. It results in settlements
arising from consensus, not emotional and financial exhaustion.
|| Family members may resolve their own conflicts during
separation with the help of an impartial and neutral third
party. A mediator has no decision-making power; rather
she helps the participants clearly define the issues in
dispute by shaping the communication process so that a
heartful discussion can take place for the parties to
voluntarily reach their own mutually acceptable settlement
of the issues.
|| Mediation is a cooperative problem-solving process
where the focus is on the parties' needs and interests
(where you are coming from) rather than positions (the
result you think you want). Many options may surface once
there is better understanding of what each person really
needs and hopes for.
||During the mediation process the separating couple meets
with the mediator in an informal office environment; the
mediator explains the process to the participants and
once the process is understood and agreed to, the mediator
collects the information necessary to understand the issues;
the mediator guides the communication process so that
everyone has a chance to be heard, defines an agenda,
guides the discussion of the issues one at a time, and
helps the participants to explore various solutions, neutralizing
the emotional barbs so that the best possible agreement
can be reached; the mediator cannot give legal advice
to the parties but may provide the parties with legal
information respecting the state of the law in the area
||Mediation sessions typically last between one and two
hours; the mediation process often takes between two to
four sessions; each party agrees to certain simple rules
to apply during the mediation process that provide each
party freedom to speak without interruption by the other
(example: no yelling or personal criticism).
||All communications, correspondence and information
exchanged by the parties is confidential and privileged
so, if the mediation process is not completed, nothing
said or done in the mediation sessions may be used in
evidence in a court proceeding.
||The goal of the mediation process is to reach a final
agreement on all outstanding issues. If such final agreement
is reached then the mediator (or one of the parties' independent
legal counsel) will reduce the agreement to writing (a
"Separation Agreement"). The parties will each
be provided with a copy of the Agreement and strongly
encouraged to review the Agreement with an independent
legal advisor before signing it. In this way, the parties
are better assured that any agreement reached is fully
consistent with their independent legal rights and obligations.
|| The mediation process can be applied to the resolution
of almost any form of dispute. Typically, upon separation
the issues to be resolved will include parenting
arrangements and financial
planning. An agreement reached in mediation, drafted
by a lawyer-mediator and signed before independent solicitors,
is as fully binding on the parties and enforceable as
an agreement reached in any other fashion.
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