The Joy of An Ex - Collaborative Practice
By: Jackie Rahmler | Posted: 16th March 2011
Copyright (c) 2011 Jackie Ramler
Collaborative Practice is a positive choice for couples facing the transition of separation and divorce who wish to maintain respect for each other and as much dignity as possible throughout the process.
The process involves a commitment of both clients and their lawyers to resolve all issues without going to court. The clients and lawyers sign a contract which confirms that commitment. In the unlikely event that either client wishes to go to court, the collaborative process is terminated and both lawyers are off the case. In this way, everyone works with determination to achieve an acceptable settlement of all issues which is then incorporated into the terms of a legally binding Separation Agreement.
The process is one of interest-based negotiations through a series of settlement meetings with both clients and their lawyers. When appropriate, family professionals and/or financial professionals work as a team with the clients and lawyers to provide their expertise in a cost-effective manner.
Clients, with the assistance of their lawyer, are coached to determine their interests and to state those interests in ways which leave options open for ways to meet those interests. Each client's lawyer is his or her ally in the process. The lawyer's challenge is to assist in generating options for settlement which meet a client's interests and which also meet the other client's interests in order to achieve acceptable resolutions.
The lawyers and other professionals working in the collaborative process have been specifically trained to acquire the skills to assist their clients in non-adversarial negotiations. Each lawyer is the special advocate for his or her own client in assisting the client to understand the legal model and to consider realistic options for settlement. Some clients reach agreements which are outside the legal model. Individualized arrangements can be created to best meet the needs of a particular family.
The contract which is signed by the clients and lawyers is called a Participation Agreement. As well as contracting not to go to court, the Participation Agreement sets out the commitment to disclose all financial information, the terms of confidentiality and the ways to protect children from the negative effects of the separation as much as possible. The clients and lawyers agree that best efforts will be made for communication to be respectful and constructive throughout the process.
Collaborative Practice can assist couples who find themselves in situations of extreme emotion or conflict. The main factor to ensure that the process will result in an acceptable settlement is commitment to the process. If the team reaches an impasse regarding an issue, the lawyers assist in finding ways to resolve the impasse.
In the hundreds of cases completed in Ontario, only a very small percentage (estimated at less than 10%) of clients have terminated the process. Many of those clients have either resolved those issues in subsequent traditional negotiations or have done nothing further about a legal agreement. Very few clients, who originally choose Collaborative Practice, ultimately go to court.
The courts and traditional adversarial legal processes can add additional financial and emotional stress on families at this very vulnerable time in their lives. The lawyers in Collaborative Practice commit, to the best of their abilities, to ensure the process causes no further harm to clients who are facing separation and divorce.
Separating parents may not be aware that many families can continue their parenting responsibilities in a mutually caring and supportive way despite differences between them. The children and parents experience less of a loss when assured that the family can be together for special events and celebrations involving the children. When parenting issues arise during the collaborative process or in the future, a child expert can be of assistance.
When other professionals are necessary and utilized in the collaborative process, the selection of and payment for these professionals are agreed upon in advance These professionals are jointly retained, minimizing the costs for assistance with parenting, determination of incomes or the value of a business or of a pension.
Collaborative Practice is also ideally suited in the negotiation of Cohabitation Agreements and Marriage Contracts. While the exclusion of court is not a factor, non-adversarial interest-based negotiations are helpful when trying to work out appropriate financial arrangements when starting a new relationship.
When lawyers and other professionals become involved, they coach and assist their clients to communicate their interests effectively, to efficiently gather all information necessary to provide legal information and to generate options for settlement. The clients and professionals involved in the collaborative process work as a team towards preserving relationships within the family and minimizing the negative financial and emotional costs of separation and divorce.
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Tags: advocate, negotiations, transition, couples, lawyers, lawyer, resolutions, separation and divorce, ally, dignity, financial professionals, professionals work, separation agreement