Without the option of litigation or the threat of litigation, collaborative lawyers are focused on settlement every step of the way. The protocols that have been developed increase the likelihood of a timely, durable and cost-effective settlement.
Many of these protocols would be of value in non-collaborative files, and some may already be used in more traditional lawyer to lawyer negotiations.
The collaborative process always requires two collaboratively trained lawyers. Some collaborative files also involve one or more of the following:
- parenting mediator;
- divorce coach(es);
- neutral meeting facilitator, who may also be the parenting mediator; and
- neutral financial professional.
Ideally, you and the other spouse’s lawyer will discuss and agree on the use of a family professional and a financial professional both with your respective clients and with each other.
What follows is a summary of the choreography of a collaborative file.
Initial Meeting with Client
In the first meeting, your goal is to:
- ensure the client feels heard,
- develop rapport,
- ensure the client understands their process choices,
- begin to ‘triage’ or screen for specific processes,
- give general information with respect to the legal model.
A first meeting with a client generally starts with the client telling their ‘story.’ As a collaborative lawyer, you should use an open-ended narrative approach to the initial client meeting.
Listen for what is important to that client: interests, conflict attitude, strengths and vulnerabilities, values and legally relevant facts.
More detailed questions should generally be left toward the end of the meeting rather than interrupting the flow of the client’s narrative with a series of closed questions.
Once information is received, you can then lead a discussion of process choices.
Discuss the full range of process choices available to the client: kitchen table, traditional negotiations, mediation, collaborative process, mediation, med-arb, arbitration, litigation. Explain the distinction between positional or traditional bargaining processes and interest-based or principled negotiating processes.
It is important to provide a balanced discussion of process choices and not to ‘fear monger’ about any of the choices. It is helpful to be transparent about your professional bias.
A responsible and balanced discussion of process choices will allow a client to make an informed decision about process choice. Your client must provide informed consent before entering the collaborative process.
Once process options are discussed and if the client is ready to hear the information, you will then lead a discussion of the substantive issues: parenting, child and spousal support and the equalization of net family property.
Enough information about process, substantive issues and dynamics needs to be shared between client and lawyer for each to adequately evaluate the process choices. It is important to also include questions to screen for domestic violence as part of the file intake and screening process.
It is important to talk about ranges of possible legal outcomes as opposed to predicting a specific result. At this stage, you only know the client’s information and perspective, and until the other spouse’s information and perspective is known it is best to exercise caution in managing the client’s expectations. This helps to prevent the early adoption of entrenched positions.
Finally, the initial meeting ends with a discussion of retainer arrangements; if your client is considering collaborative practice, you must provide an explanation of a limited retainer. Your client must sign a limited retainer prior to signing a Participation Agreement. (See precedents for Collaborative Retainer Agreement)
Clients usually want to know how much the process will cost and how long it will take. At the initial consultation, rough estimates may be given while advising the client that better estimates will be given after the first discussion with their spouse’s lawyer.
Overview of Interest Based or Principled Negotiation
Much has been written about principled negotiation. What follows is a brief summary to give the context in which a collaborative file progresses.
In principled negotiation, we:
- identify issues – those that are important to the client as well as those that are relevant to a comprehensive family law settlement;
- gather information (including financial disclosure, legal information and interests);
- generate options;
- evaluate options in light of interests and legal information and select the agreed upon resolution.
First Telephone Call between Lawyers
Once both clients have retained collaborative lawyers, the next step is the initial telephone call between the lawyers.
The goals of this telephone call are:
- to exchange enough information to complete screening for the process;
- to exchange preliminary information about the clients, including sharing concerns and priorities;
- to discuss process issues and whether other professionals should be involved in the file (family professional – parenting mediator, coach or therapist, neutral facilitator; financial professional – financial planner, accountant, valuator); and
- to arrange the first meeting, including time, place and preliminary agenda;
Since a Participation Agreement has not yet been signed you must be careful as to the information you convey about your client in this first telephone call.
Although some collaborative files involve just clients and lawyers, more and more are employing inter-disciplinary teams, including both family and financial professionals.
The family professional most often used in the collaborative process is the neutral facilitator. In this role, the family professional keeps the meetings on track, while managing communication issues and monitoring emotional responses during the collaborative meetings. This is often the key person maintaining the momentum of the process. He or she will also sometimes meet with the clients away from the collaborative table to work on communication or other issues that prevent constructive negotiation. The family professional often provides valuable information to the lawyers as to the dynamics of the couple.
Sometimes the file may involve a family professional who acts as a coach to one or both clients.
Quite often, the parenting issues are addressed in ‘off-line’ mediation sessions with the same family professional who is the neutral facilitator on the file. A separate parenting mediator can also be employed for this role, with a separate professional-client contractual agreement.
Financial professionals are often involved in a collaborative file as well. Their first responsibility would be to work with the clients to gather and organize their financial information and prepare a joint Net Family Property Statement. Sometimes a financial professional is jointly retained to assist with budgets, option generation and evaluating options through projections. A valuator may be jointly retained to determine the value of real estate or a business. The clients will decide whether the report is to remain private and protected by the participation agreement, or whether it is a report that could survive the termination of the process and be used by either spouse going forward.
An agenda is prepared and distributed prior to the first meeting (and every subsequent meeting).
A typical first meeting agenda will include the following:
- Introductions, and agreement on which lawyer will produce the Progress Notes (summary of the meeting)
- both clients’ goals and interests for the process and beyond,
- review and signing of the participation agreement,
- overview of problem solving method and communication guidelines,
- identify issues that will need discussion,
- discuss specific information required to discuss the identified issues, financial disclosure process, and timelines
- decide on next steps including scheduling of next meeting and agenda for next meeting
Preparation with client for first meeting
Collaborative practice is a client-centered process and thus the clients need to be prepared to fully participate in the process.
Part of that preparation includes coaching to assist the clients to say what they need to say in a way that increases the likelihood of being heard by their spouse. It also includes helping clients clarify what is truly important to them and to begin to prioritize their interests. For example, a client may say she wants to stay in the house, but on further discussion, she realizes what she really wants is for the children to stay in the same school and she can’t imagine being able to purchase another house in the school district to allow the children to stay in the same school.
The other part of client preparation involves helping the client to be ready to listen and hear what their spouse has to say. Preparation is particularly important when there are ‘hot topics.’
In preparing your client for a first meeting, you should also review the draft agenda and Participation Agreement with him or her.
The professionals generally meet for 15 – 30 minutes prior to the start of a joint meeting to exchange any last minute updates and to choreograph the meeting, i.e. who will lead which parts of the agenda.
The neutral facilitator, or the lawyers if there isn’t one, then leads the clients through the meeting.
The professionals de-brief after every meeting both with each other and with their own clients. Important feedback from the de-briefs are shared so that future meetings will better meet the needs of the clients. The de-briefs also build a solid working relationship between the professionals. This is your opportunity to ensure the professional team is working proactively towards the clients’ goals, and to give and receive comments and constructive criticism about your and your colleagues’ actions and experience during the collaborative meeting.
The lawyers alternate in preparing progress notes for the joint meetings. One lawyer prepares a summary of the issues discussed, tentative agreements reached, issues that were ‘parked’ for another meeting, homework items and timelines, and next meeting date and location. The professionals must all approve the progress notes before they are distributed to the clients for their comments. The notes become a basis for preparing the final agreement, and are a handy way to review what was discussed at earlier meetings. These progress notes are protected under the Participation Agreement and cannot be used in litigation.
In between collaborative meetings, the clients and the professionals work on homework from the last meeting and prepare for the next meeting. It is vital that you either meet with your client or speak to them on the phone prior to each meeting to prepare them properly. You can give your client advance notice of what will be discussed at the meeting and of any areas that you expect will create conflict, and plan how best to manage the conflict. Based on your observation of your client in the first meeting you can coach them on how to be more effective in the next meeting.
You will communicate directly with your client through meetings, telephone calls or email about legal information, process issues, negotiation issues and other preparation needed.
Communication between lawyers is generally by way of telephone calls and emails. Rarely (if ever) are formal letters exchanged. The preparation that lawyers do with each other before a meeting is key to a successful meeting. Hot button issues are identified and lawyers strategize about how to avoid impasses or how to resolve them if one occurred at the last meeting. If you are working in a team environment, the family professional can be very helpful in educating lawyers on why an impasse is occurring and how to avoid one or resolve it.
A series of collaborative meetings is generally scheduled with 3 -4 weeks between meetings depending on what needs to be done between meetings. At the same time as the collaborative meetings are scheduled, telephone calls between lawyers and preparation meetings with clients are scheduled to ensure everyone is prepared for the joint meetings.
Subsequent meetings all include an agenda distributed prior the meeting, a review of the progress notes from the previous meeting, addressing the issues on the agenda, determination of next steps and a post-meeting de-brief.
Financial disclosure is one of the first steps in the collaborative process. At the first meeting, the information required to properly discuss the issues is discussed. If a financial professional has been included on the team, he or she will then work directly with the clients to gather and review the necessary financial documents, which usually includes tax returns, notices of assessment, corporate financial statements, bank account statements and credit card statements, RRSP statements, letters of opinions or appraisals for real estate, etc.
Where an asset needs to be valued by a professional, it is usually done by a valuator hired jointly by both clients. Typically this process begins with a conference call with both lawyers and the valuator or actuary. Quite often the valuator attends a collaborative meeting to discuss and answer questions with respect to his or her analysis of the value of a business.
Once the net family property statement has been prepared, it will be reviewed, discussed and agreed to at a collaborative meeting.
The final, agreed-upon version of the financial statement will be attached to the separation agreement as a schedule.
While the lawyers each discuss the legal model with their clients individually, they must also present the law to the clients together at a joint meeting. The lawyers must prepare for this presentation to determine where there is agreement on a point of law and where there is disagreement. The choreography of the presentation of the law is a critical step in the collaborative process. One of the benefits of jointly presenting the law is that each client knows exactly what their spouse is hearing from his or her lawyer. Another benefit is that it encourages both lawyers to be realistic with respect to their legal opinion. The goal is to provide a generally accepted range of likely legal outcomes.
The legal model is presented as the default option to consider. It is not presented as the definitive resolution.
Each lawyer works with his or her client to ‘mine for interests.’ You will have to ask questions that move beneath positions so you understand the goals, concerns, fears and values of your client. You will also help your client to prioritize their interests.
You will then supports your client in sharing these interests at the first collaborative meeting.
The sharing of interests at a joint meeting is a critical step to understand where there are joint and shared interests (i.e. the well-being of the children) and where there are divergent interests (desire for liquid assets vs desire for real estate). Through exploring shared and divergent interests, we create ways in which the parenting or financial ‘pie’ can be expanded. We also identify what the challenging issues will be.
Options are created between lawyers in advance of a collaborative meeting as well as between lawyer and client. Further options are generated in a collaborative meeting. The goal is to create a few solid bundles of options worth further exploration and consideration. Options can be tailored to your client’s specific needs and family situation in ways that the legal model would not accommodate.
Evaluation and Optimization of Options
Options and settlement bundles are evaluated in light of the shared and divergent interests, the resources available, and the short and long term impact of the option as well as how it compares to the legal model.
Various options are optimized to make them more interesting and possibly more acceptable.
Negotiation and Advocacy
Settlement advocacy takes place every step of the way in a collaborative file, from managing client expectations at the first meeting to digging deep for interests, to strengthening ‘BATNAs’* (through legal research, analysis and dialogue) to generating creative options. *Best Alternative To a Negotiated Agreement
Collaborative lawyers use integrative negotiation (and the exploration of interests) to expand the pie as much as possible and look for areas of divergent interests that allow for solutions that satisfy both parties.
Collaborative lawyers also must be prepared to use distributive negotiation for issues that do not lend themselves to integrative negotiation strategies.
Drafting of Separation Agreement
The first draft of the Separation Agreement is generally done by one lawyer and forwarded to the other lawyer for review and comments. To enhance efficiency collaborative lawyers prepare provisions that are balanced, and where appropriate secure the input of the clients to minimize interpretive challenges later. The lawyers are expected to accurately reflect both the substantive agreement between spouses as well as the spirit of their agreement.
Once both lawyers are satisfied that the draft agreement reflects the agreement reached and adequately protects both spouses, it is shared with the clients. Some lawyers prefer to review the draft agreement at a joint meeting, so questions of interpretation, errors and misunderstandings can be discussed and corrected right away. A final form of the agreement can then be prepared, which can be signed either in a joint signing meeting or with each lawyer and client separately.
Some lawyers prefer to meet with their clients individually to review and explain the draft agreement. Changes are discussed between the lawyers, and amendments are made until the agreement is ready for signing.
The signing of a separation agreement is done either at a signing meeting or separately at the respective lawyer’s offices.
You will then provide an individual reporting letter to your client and follow up as needed.