What is Collaborative Divorce?

Settlement Focused and Interest Based

Collaborative divorce or collaborative separation refers to the use of an out-of-court process that addresses the emotional, financial and legal issues that arise as your family transitions from one household to two. It is a voluntary process that focuses on making sure all the information you require to make decisions is available, and that your negotiations remain constructive and capture your interests. Respectful communication and full transparency are of primary importance. You and your spouse will each have your own collaboratively-trained lawyer for guidance and support, and a neutral family professional and/or financial professional may also be part of your team. The whole team focuses on your goals and concerns while helping you achieve the best possible outcome for you and your children.

The collaborative process is not just for separating couples. It is an excellent way to work through the details of a marriage contract or cohabitation agreement. Discussions are focused on you and your future spouse’s interests and concerns and the process ensures negotiations will not become adversarial.

In Collaborative Practice, you commit to:

Negotiate a mutually acceptable settlement without going to court.
Maintain open communication and information sharing.
Create customized solutions that consider the priorities of both spouses.
Keep information confidential and private except for specified financial disclosure.

Is a Collaborative Divorce for you?

The choice of what process to use for your divorce is the first decision you will have to make. How do you decide if the collaborative divorce process is the best one for you?

Respectful Communication

Respectful communication is a basic requirement within the collaborative process. This allows each spouse to be heard. You and your spouse will come to the table with different goals and priorities, however the team will help you to create a mutually acceptable path forward. Conflict cannot be avoided, but it is easier to work through when everyone is respectful.
Full Disclosure

Although many decisions are based on what is most important to each spouse, an important step towards settlement is to be informed about your legal rights and obligations. This requires exchanging relevant financial information. Options for settlement can then be generated that attempt to meet both spouses’ interests. All information that is shared is confidential and will remain confidential after the process ends except for specified financial documents.
Participation Agreement

You and your spouse, along with everyone on the team, will sign a Participation Agreement before the collaborative process begins. In this agreement you agree to try to resolve all of your issues out of court. However, if the process is not working, you can end it - the process is voluntary. The agreement protects all of your information by confirming it will continue to remain confidential.

Collaborative Practice, Mediation, or Litigation?

Sometimes it helps to see what different options offer. Here is a comparison of the most important features clients are concerned about.

Who is in Control?

Collaborative

Clients are in control of the process. Yes there are protocols for the steps and pace of a collaborative file, but clients can customize a wide variety of decisions along the way so that the process meets their needs. You and your spouse are guided through settlement negotiations by your own lawyers with the assistance of family and financial professionals who are focused on your goals and priorities.

Mediation

The mediator designs a customized process, after intake sessions with each client. The mediator discusses the issues to be resolved with both spouses with a view to reaching a settlement. If an agreement in principal is reached, the mediator will draft a Memorandum of Understanding for you to review with your respective lawyers. You will each need to retain a lawyer to get advice on the proposed agreement and to prepare or finalize the final written agreement.

Litigation / Arbitration

Judges or arbitrators are in control of the process. The proceedings and pace of a court action are governed by the Family Law Rules. Judges decide any factual disputes and apply the applicable statute to the issues to be decided. Arbitration is a form of private court, where a jointly retained arbitrator will decide the legal issues to be determined.

Degree of Adversity

Collaborative

A primary goal of collaborative divorce is to minimize conflict and maximize the opportunities for settlement. This is achieved by ensuring that the information that is required to make decisions is available and that you have the support you need from collaborative professionals to make informed decisions. Prioritizing goals and interests, respectful communication and financial transparency minimize the possibility of adversity.

Mediation

Mediation, like collaborative, is an interest-based negotiation process which aims to minimize adversity. The mediator as a neutral party will guide you through the negotiations and assist you to reach an agreement in principal. Each party will get legal advice from their own lawyer who may or may not be part of the negotiations.

Litigation

Litigation, by its nature, is an adversarial process— whether in court or at an arbitration. Strategy and a desire to “win” are the natural by-products of entering into a court process. You and your spouse assert legal positions from the very start and head down a road entrenched with conflict. This process is however necessary in some cases where one spouse refuses to negotiate in good faith or produce relevant financial disclosure.

What costs are Involved?

Collaborative

Cost-effective, notwithstanding there may be more members on the team; in fact, the additional team members may result in lower total costs. Financial and family professionals contribute their specialized expertise; work is distributed among team members to ensure the work is done by the most qualified person at the lowest price.

Mediation

Cost effective, as you and your spouse are sharing the cost of the mediator. However costs can rise once lawyers are brought in to provide independent legal advice for you and your spouse, particularly if they do not support the agreement in principal reached during the mediation process.

Litigation

Expensive. The court process requires a lot of time spent by the lawyers in preparation of the required court documents as well as preparing for each step of the process itself.

Timelines

Collaborative

Your team can start working on your settlement as soon as they have been retained. How long a resolution takes depends on the complexity of the financial information to be assembled and you and your spouse’s ability to work together to resolve conflict areas. Your lawyers and other professional team members are all focused on guiding you through the settlement process efficiently and with the goal of achieving your primary objectives. Most cases are resolved within several months to a year from the start of negotiations.

Mediation

Your mediator will meet with you and your spouse to moderate your negotiations. After the mediation process is complete, you and your spouse will each meet with your own lawyers to review the issues and outcomes of the mediation process. Sometimes this can be achieved relatively quickly, within a couple of months, but sometimes it can take longer, particularly if issues need to be re-addressed.

Litigation

Litigation is a long, drawn-out process which can take many months or even years to come to completion. There are settlement conferences along the way in which a judge or dispute resolution officer tries to help you and your spouse settle. The court controls when you can move to the next step in the process and there are long delays in some jurisdictions.

Use of Outside Experts

Collaborative

Financial and family professionals are commonly included as part of the team. In addition, other experts such as neutral business valuators, real estate valuators, or child counsellors are recommended whenever it is believed to be helpful or necessary to resolve issues or to achieve your goals.

Mediation

Outside experts are not part of the standard mediation process, but can be brought in when agreed to by both parties. Jointly retained financial experts are often used in a mediation process, such as a jointly retained business or income valuator.

Litigation

You and your spouse hire your own experts. Two experts means two different opinions adding to the adversarial nature of the process.

Involvement of Lawyers

Collaborative

Your lawyer is trained to negotiate using collaborative and interest based negotiation principals. They are present throughout the collaborative process, to provide you with legal advice, guidance and support. The lawyers may disagree on some legal issues that arise; options to resolve these differences will be discussed with both spouses. The process ensures that you and your spouse make all decisions relating to your settlement.

Mediation

Lawyers are not generally present during mediation sessions with their clients. Each client retains their own lawyer to give advice either during the mediation process or after an agreement in principal has been reached. More complex cases may require that counsel be present at the mediation sessions. The lawyers may or may not be trained in interest based negotiation techniques.

Litigation

Lawyers focus on court procedure and strategy to advance a client’s legal position. They communicate directly with each other and act as your voice in the courtroom. You do not communicate directly with your spouse or with his or her lawyer to negotiate a settlement. The lawyers may or may not be trained in dispute resolution techniques.

Voluntary vs. Mandatory

Collaborative

Collaborative divorce is a voluntary process that starts off with each spouse and each collaborative professional signing a Participation Agreement.

Mediation

Mediation is a voluntary process unless it has been mandated by the court or a domestic agreement.

Litigation/Arbitration

Litigation is initiated voluntarily by one spouse. Once one spouse has begun the court process, the other spouse is obligated to respond within the court process within strict time lines. Arbitration is a voluntary process that both parties agree to undertake by signing an Arbitration Contract.

Lines of Communication

Collaborative

During collaborative meetings, you are encouraged to share your thoughts and ideas, rather than have your lawyer speak on your behalf. Between meetings, your communication is generally with your lawyer, as well as the neutral financial and family professionals on your team. All professional team members communicate to ensure the case is progressing towards settlement and to plan next steps.

Mediation

You and your spouse will each be speaking on your own behalf during the mediation session if your lawyer is not present.

Litigation

All communication is through your lawyer and your spouse’s lawyer; nothing is communicated directly between you and your spouse or by you to the court or arbitration forum, unless you are giving evidence.

Collaborative was an integrated more holistic approach. It encompassed all angles of our social, financial and emotional health.

Audra A., Oakville

The Collaborative Process

Getting Started

Your first step is to have a discussion with a collaborative professional. Look at the listings for collaborative professionals in your region. Your first meeting will include a discussion about the collaborative process and how you can get started.

Find A Professional

Participation Agreement

Signing a participation agreement is a requirement in all collaborative cases. This is where you and your spouse agree not to initiate a court application, to be open and forthcoming with all financial information, and to communicate respectfully.

Identify Issues

You and your spouse begin by sharing your primary goals for the process. The issues to be resolved are then identified. For each issue, it is determined what information is necessary to have a meaningful discussion, and once that information is available, options for resolution are identified.

Parenting Plan

Parents may meet with the Family Professional outside of the regular collaborative meetings to discuss child-related issues, including the parenting schedule. The Parenting Plan resulting from these meetings will be part of your final agreement.

Negotiation and Settlement

Options for settlement are discussed, analyzed and agreed to. Creative solutions can be generated to satisfy each spouse's priorities. Once all issues have been resolved the lawyers will prepare a Separation Agreement reflecting all the items agreed to in your settlement negotiations.

What if a settlement cannot be reached?

If you and your spouse cannot reach agreement on one or more issues, your lawyers may suggest a second opinion, using a mediator within the collaborative process, arbitration, or going to court. If the collaborative process fails, your collaborative lawyer cannot represent you in a court proceeding, but can continue to advise you in a mediation process.

Little girl and her mother cooking with grandma

The Process Explained

Who is on the Team?

Collaboratively Trained Lawyers

Family lawyers, who may have court experience, but choose collaborative because they believe it is the best process for their clients and the clients' families.

Collaboratively Trained Financial Professionals

Collaborative financial professionals have specific training to assist you in completing your financial disclosure and the expertise to help you evaluate your settlement options.

Collaboratively Trained Family Professionals

Social workers or psychologists work with both spouses to create a Parenting Plan. They also ensure the case stays on track by managing all aspects of the process.

How Do I Get Started?

You can begin the process by contacting a local collaboratively trained lawyer, financial professional or family professional.

Find a Professional

Collaborative Divorce in the News

Read about collaborative practice and how it is impacting the world of divorce.

See All News

Financial Masterclass for Collaborative Professionals: Beyond the Basics for More Creative Settlements

Video

When Things Go Wrong From a Litigator’s Perspective

What is Collaborative Divorce?

Settlement Focused and Interest Based

In Collaborative Practice, you commit to:

Is a Collaborative Divorce for you?

Respectful Communication

Full Disclosure

Participation Agreement