Settling a divorce out of court
While divorces are never a pleasant thing to go through, the process isn’t always as dramatic as you may imagine. Not all divorces are settled contentiously in a courtroom like you see on TV. The alternative solution? Collaborative practice.
This concept was developed in the early 1990s, in response to an apparent surge in the rate of divorce and marriage breakdown. Stu Webb, a Minneapolis, Minnesota attorney, developed the process because, as a family law practitioner, he was upset with the misery of adversarial litigation for family law.
Webb developed a process that enables spouses to engage in a series of four-way meetings where issues are identified and resolutions sought in the presence of legal counsel who are dedicated to the integrity of the process. Progressive law firms in Canada adopted this collaborative family law process, with certified practitioners leading the way.
The International Academy of Collaborative Professionals defines the collaborative process as follows:
"Collaborative law … consists of two clients and their respective attorneys working together toward the sole goal of reaching an efficient, fair, comprehensive settlement of all issues.
All negotiations take place in four-way settlement meetings that both clients and both lawyers attend. The lawyers cannot go to court or threaten to go to court. Settlement is the only agenda. If either client goes to court, both collaborative lawyers are disqualified from further participation. Each client has built-in legal advice and advocacy during negotiations, and each lawyer's job includes guiding the client toward reasonable resolutions. The legal advice is an integral part of the process but the clients make all the decisions.
The lawyers generally prepare and process all papers required for the divorce (based on the settlement):
The parties sign a collaborative (law) participation agreement describing the nature and scope of the matter;
The parties voluntarily disclose all information which is relevant and material to the matter that must be decided;
The parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement;
Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding;
The parties may engage mental health and financial professionals whose engagement terminates upon the undertaking of any contested court proceeding."
The main advantage to a collaborative family law process is that the parties do not need to go to court. They save the extraordinary financial and emotional cost of engaging in such litigation. Of course, all participants must negotiate in good faith, understanding that an agreement must meet the needs of both spouses and of any children. Unlike the adversarial litigation system, there is supposedly no winner or loser. Additionally, the parties keep control of the cost of the process and its time frame.
Collaborative family law is cost efficient, open and transparent, and also provides a template for resolution of future issues between the parties. The conclusion of a collaborative law process often results in a domestic agreement, which is a binding contract that forms the basis of an uncontested divorce application if the parties are married.
Adherence to this process-driven model provides a method for couples to stay on track towards their common goals, to identify issues, to discuss any options and ultimately to reach agreement.