What’s the greatest strength of the collaborative process? You’re not going to court. There are two aspects to not going to court. First, you and your team of professionals are motivated to keep the process amicable and respectful so it can be resolved out of court. Second, the exclusion clause in the contractual participation agreement excludes all the professionals (lawyers, family and financial experts) from going to court, which encourages everyone’s utmost commitment to settlement.
So what’s the greatest weakness of the collaborative process? Sometimes, it’s that same exclusion clause. When collaborative process is unsuccessful despite all-round best efforts, you and your spouse have to start all over again with a new team of professionals.
We call this the “strength-weakness” dilemma.
Many separating spouses really don’t want that. You trust your team. You and your team of professionals have worked hard to deal with the separation. You’ve sunk money in collaborative process. And now, just because the two of you can’t agree about a particular “problem”, the process is terminated before you get to a final separation agreement.
What kind of problem? Sometimes the problem may be small, and sometimes it may be big. Maybe a dispute about value of assets for equalization of net family property, or income from a business for support purposes. Whether a “pre-nup” or some part of a kitchen table separation agreement should be upheld, now that you know more about your legal rights. Maybe one of you needs a quick decision about whether it’s OK to move, before you lose a job opportunity. Which means you need to know if you can take the kids. Either way the problem prevents you and your spouse making it to the end of the pathway (i.e. a final collaborative separation agreement).
How might we expand the concept of collaborative process to help couples make it all the way to the end of the pathway, when all else looks impassable and heading towards termination?
One answer is to find a way to expand the concept of the collaborative process to create a safe container with a timely decision. After all, how can collaborative be truly collaborative if one person could effectively “win” just by stalling or strategically refusing to agree?
Alternative “out of court” processes, such as mediation and arbitration provide an option. A mediation/arbitration clause right in the participation agreement may be the answer. We can modify the participation agreement to provide for mediation at stubborn impasse and also set a time line if arbitration is necessary.
Arbitration isn’t court. It’s another kind of alternate dispute resolution. So in the arbitration, your lawyer can still act for you. Your spouse’s lawyer can act too. And we can consider the best method for your experts to put forward the expert opinion evidence they’ve developed for you. The arbitrator will make a binding decision for you on the specific roadblock issue when you and your spouse ask them to do so.
Arbitration as part of collaborative process is a relatively new concept. Not every collaborative professional will be comfortable with arbitration. If you think you might need mediation or arbitration to stay out of court, tell us. And when you meet with your collaborative team members, ask them: are you prepared to support me in an arbitration?
Ellen Anderson at Anderson Adams Lawyers ( anderson@andersonadams.ca) and Brett Degoldi at Galbraith Family Law (brett@galbraithfamilylaw.com) are two lawyers who recognize that every family is unique. They are prepared to help you design your collaborative process to include mediation and arbitration if that’s the approach you want to choose.
