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FAQ's

What is the difference between collaborative practice and traditional adversarial divorce?

No court

  • The key differences between collaborative practice and traditional divorce is the pledge to reach an agreement without going to court and your lawyers will resign from the case if the matter does go to court.

Multi-party meetings

  • You will meet with your lawyers (and any other professionals you jointly choose to have assist) in a series of meetings to work out an agreement.

Faster agreement

  • While each case is different, several meetings may be all that is needed to come to an equitable agreement. The collaborative approach allows partners to put child support, parenting and financial agreements in place without having to wait months or years for a court ruling.

Less emotional strain

  • The cooperative nature of collaborative practice can greatly ease the emotional strain caused by the break-up of a relationship, and protect the well-being of children.

Lawyers have nothing to gain by drawing things out

  • If either partner decides to leave the collaborative process and go to court, then both collaborative lawyers are required to resign from the case. This ensures that everyone works hard at achieving a settlement acceptable to both partners

What is the difference between collaborative practice and mediation?

  • The mediator controls the process whereas in collaborative practice, you and your partner control the process.
  • Mediation has a neutral third party working with the partners (and sometimes their lawyers) whereas in collaborative practice, the lawyers work with each other and the partners to reach solutions.
  • Mediation is limited to the partners and sometimes their lawyers whereas collaborative practice has both lawyers and the partners and any experts they may engage.
  • The mediator rarely reveals what he or she thinks may be the outcome from a court whereas in collaborative practice, the lawyers are open about the advice they give about the outcome if the partners went to court.
  • Dates for mediation often depend on the mediator’s availability whereas collaborative practice meetings are set based on mutually convenient times and dates.
  • Sometimes mediators see the partners without their lawyers for part or all of the process whereas your lawyers are present with you at all times during the collaborative practice meetings.

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What about confidentiality?

  • All professionals involved in the collaborative process are bound by the professional code of conduct rules of their respective professional organisations and have a legal duty of client confidentiality.
  • Confidentiality is also provided for in the Participation Agreement.
  • Any discussions are legally privileged and conducted on a "without prejudice" basis which means any documents of the process cannot be used in court (excluding documents that are required to be disclosed under the Family Law Act).
  • This confidentiality will be overridden where any of the professionals involved has a professional obligation to make a report to a relevant authority, for example, if a child is considered to be at risk.

What happens if one of the partners doesn't give a full and frank financial disclosure? For example:

  • Intentionally misrepresenting information
  • Acting in bad faith
  • Not keeping to the terms of the agreement
  • Failure to disclose material information - options after settlement is reached

During the process:

If this happens during the process, the lawyer must stop participating if their client has withheld or misrepresented information intentionally, or is participating in the process in bad faith. Likewise, it is open to your collaborative lawyer to advise you to stop the process if your lawyer does not consider that the other partner, (or their lawyer), is keeping to the terms of the agreement.

After agreement:

If after an agreement has been reached through the collaborative process, you discover that the other side has failed to disclose material information, then collaborative practice is no different from any other negotiated settlement. If the outcome of that settlement would have been different had the information been available, it is open to you to apply to a court to overturn the agreement, even after it has been approved by the court.

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How much will it cost?

  • You should not see the collaborative process as a cheap alternative to other methods of resolving a family law dispute. As you will be attending a series of meetings you will be charged for the time taken and the work that your lawyer does for you.
  • As with the conventional legal process, different lawyers have different charging rates. Your lawyer will explain to you the basis of their charging structure and will go through their firm's retainer terms with you.
  • As long as you and your partner act in good faith, provide the information requested of you within the timeframes agreed and cooperate in the process, the collaborative process will usually be quicker and cheaper than a dispute resolved by a trial.
  • The issue of how the costs of the collaborative process are to be met can be addressed at the first four-way meeting. Unless there is an agreement to the contrary, however, you and your partner will each be responsible for your own lawyer's costs and will be invoiced in accordance with your own agreement with your lawyer.

How can other collaborative professionals help?

  • Other professionals assist by exploring options.
  • In many disputes, especially matters involving children, there are other professionals such as counsellors and family therapists who can offer expert advice and assistance to you and / or your children, as part of the process.
  • Learning how to communicate with one another and resolve conflict as it arises will be invaluable not only during the process, but long after the legal issues are finished.
  • In disputes involving financial matters, professionals such as financial advisers, valuers or accountants may be needed to provide information or advice.
  • The collaborative process is very flexible and other professionals may be used in a team approach to work alongside your lawyers. You may wish to see them separately or together in a meeting with the lawyers or they may report to a meeting. How such an expert is used is decided and agreed by you.

Why choose a collaborative divorce?

More compassionate

The main reason for choosing a collaborative approach is because if offers partners and children a more constructive and compassionate approach to one of life’s most emotional events.

Less traumatic

The end of a marriage or relationship is traumatic enough without the divorce process itself adding to the pain. While divorce will always remain a challenging life event, collaborative practice helps families make a positive transition to a new life.

Strengthen relationships

Collaborative practice works to strengthen relationships within the family, so that parties will be able to co-parent their children and maintain extended family networks after the divorce.

Variety of professional skills

Partners can draw on the skills of a variety of collaboratively-trained professionals (lawyers, financial, family, and child specialists), to support the needs of their family. The goal is to work towards mutually-acceptable, constructive solutions to deal with parenting and financial issues and to help the partners establish a solid foundation so they can move forward with their new lives.

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What are the benefits of collaborative divorce?

You're in charge

The clients, assisted by their chosen professionals, are in charge and make their own agreements rather than giving control to the court. This provides the opportunity for creative problem-solving, resulting in richer, more satisfying agreements.

No lengthy delays

Current court delays mean that some cases often take up to 2 years or more to be heard. Without lengthy delays in hearings or trial dates, the issues are almost always resolved sooner and often less expensively in the collaborative process.

Access to Experts

The partners and their family have the opportunity to benefit from the expertise of neutral professionals, including family, child and financial specialists.

Mutual problem solving

An agreement that is reached through mutual problem-solving (as opposed to adversarial negotiation or capitulation) is more likely to be complied with over the long run. Another benefit is that partners really craft their own solution, rather than have a stranger (a judge or arbitrator) decide for them.

Collaborative practice can work for clients experiencing low, medium or high conflict or trust issues, who want the support of their lawyers and other professionals during the negotiation sessions. Collaborative professionals provide advice and information to their clients every step of the way.

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What distinct skills do collaborative professionals bring to the process?

Collaborative professionals are trained in principled negotiation and effective communication skills. The goal of collaborative practice is to explore ways to satisfy the needs and interests of both partners to create a win-win solution. The parties avoid taking adversarial positions that lead to a “winner” and a “loser”, and destroy relationships in the process.

What types of family law issues can be resolved using the collaborative process?

All family law issues can benefit from the collaborative process, including issues concerning parenting arrangements (how to share time with the children and make decisions for them), spousal and child support, the valuation of a business or other assets and the division of property and the family home. It can also be used as a means for negotiating prenuptial or cohabitation agreements. It is also a useful way in which partners can address any specific issues that might arise during the marriage or relationship even if you are not separating at that time.

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How does Collaborative practice work?

When partners choose a collaborative approach, they each hire a collaboratively trained lawyer and decide if they need additional collaborative experts, such as coaches, child experts or financial specialists, to join (or work alongside) the process. The partners and their chosen professionals sign a Participation Agreement undertaking to act in good faith, disclose all relevant information, put the children’s needs first and look for mutually acceptable solutions. Negotiations take place in a series of settlement meetings where information is exchanged and an array of options considered. Mutual problem-solving by the partners and their lawyers leads to the final divorce agreement.

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Is Collaborative practice a faster way to settle?

Individual circumstances determine how quickly any settlement process proceeds. However, collaborative practice can be a more direct and efficient form of agreement. From the start, it focuses on problem-solving, not blaming or endlessly airing grievances. Full disclosure and open communication helps to assure that all issues are discussed in a timely manner. Finally, because settlement is reached out of court, there is no waiting for the multiple court dates that are often needed to resolve the issues. Interim arrangements for children and support can be addressed within a few weeks instead of months.

How does Collaborative practice focus on the future?

Divorce is both an ending and a beginning. Collaborative practice helps each partner anticipate his or her needs in moving forward and include these in the discussions. When children are involved, collaborative practice makes their future the first priority. Collaborative practice helps partners achieve a dignified closure of their relationship and make a smooth transition to the next stage of their lives.

Is Collaborative practice right for me?

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Tell me more about the history of Collaborative practice

“Collaborative Practice” was started in 1990 by a Minnesota lawyer, Stu Webb who had many years of courtroom experience using the adversarial divorce model and knew the stress and disruption that it caused to families. Although the collaborative model originated with lawyers, as family and financial professionals began adding their expertise and support, an interdisciplinary approach evolved called “collaborative practice”. The collaborative approach has spread to every major city in Canada and the U.S, Great Britain and more recently to Europe and Australia.

For more information and history click here.

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The Collaborative Law Process

Collaborative Divorce - A Safe Place

Collaborative Divorce - A Safe Place

ABC Interview: Nicer Ways To Break Up with Sue Abrahams and Bernie Bolger

Note: Discussion on collaborative practice starts at 16.52