There is a movement in family law whereby divorcing couples can sign agreements
with lawyers to not go to court. More specifically, the process is known as
Collaborative Family Law (CFL) and the agreement to not go to court is binding
upon the lawyers, not the couple. If one or both clients are unsatisfied, either
may still march the dispute to court. They will however have to find new lawyers.
At heart, the CFL process seeks to develop consensus between the parties for
a mutually acceptable settlement. The settlement can include the division of
assets, spousal or child support and/or the ongoing care of children.
In traditional dispute scenarios both parties retain their own financial advisor
and may be subject to a custody/access assessment. The results from financial
planners may vary and in such cases, the dispute then widens to include the
experts. The recommendations of the assessor may not reflect the position of
either or both parties and hence their involvement may fall to conflict as well.
Often, other third parties are drawn into the dispute as well.
In the CFL process, while the couple retains separate collaboratively trained
lawyers, they then retain a single financial advisor and/or child expert and/or
divorce coaches who form a team with the lawyers and clients. The financial
advisor, child expert and divorce coaches act as consultants within a team framework.
Because each party has their own lawyer though, they are assured their respective
legal rights are preserved. Certainly the disposition of the lawyers is one
of settlement as litigation is openly off the table. The risk of conflict is
reduced in favor of improving the probability of settlement.
At issue to some persons considering CFL, is concern that they may be forced
to capitulate or acquiesce on matters of importance or safety.
Firstly, no party is to be forced to agree to anything. That is why they both
retain separate counsel; to protect legal rights and assure a process that addresses
mutual concerns.
Secondly, either party can table contentious issues and even treatment issues.
The objective is not to capitulate, but to address all issues forthrightly and
develop plans to genuinely mitigate concerns.
The actual CFL process occurs in four-way meetings (clients and lawyers) and
can be expanded to include the financial planner, child expert or any other
consultant for that matter. Depending on the style of CFL, ancillary experts
may automatically form part of the team. Various jurisdictions have developed
some unique differences in approach while all the while adhering to the basic
premise of reaching a settlement without the threat of litigation.
Depending on the nature of issues to be resolved, the number and durations
of meetings can vary. Unlike traditional family law where meetings tend to be
conducted on a schedule determined by Court process, CFL meetings are independent
of Court and hence at the control of the participants. Further, because matters
are never left to the discretion of a Judge, the parties retain full responsibility
and control for settlements achieved.
Practitioners of CFL offer it as a more respectful way to resolve family disputes
as neither side is bent on tearing down the other, but conversely, directed
towards leaving relationships as intact as possible. Because collaborate doesn’t
mean capitulate, issues can be addressed in a manner that maintains control
in the hands of the parties. The process is thought to provide for more durable
outcomes whilst maintaining the integrity of the participants. This bodes well
for the children and transition to new family structures.
