This article is the second part of a series on the different ways divorce can be settled. This article was written by Daryl Er (an intern of OTP Law Corporation) and Emelia Kwa (a trainee at OTP Law Corporation).
A third (the second being mediation) track towards dispute resolution would be collaborative practice.
What is it?
Collaborative practice (CP), like mediation, looks at the interests of the parties. However, it differs greatly in the type of people involved, i.e. specially trained CP lawyers and potentially other family specialists (e.g. financial advisers, child experts, counsellors, etc.) who will work with the parties to negotiate an agreement that suits the family. CP happens before the start of any court proceedings.
Parties and their trained lawyers first make a binding collaborative commitment (called a ‘participation agreement’) to voluntarily disclose all relevant information, proceed respectfully and in good faith, and refrain from litigation. They will also agree to negotiate directly in an interest-based, non-adversarial problem-solving process.
Parties may also bring in other neutral professionals such as financial planners or coaches to facilitate smoother discussions and support parties through new processes (such as child custody) and emotionally-charged issues. There are generally no set rules on how collaborative cases are to be handled, and as such, parties have a substantial control over the processes and outcome.
The terms agreed during the sessions are compiled within a settlement agreement, which will be fully enforceable upon agreement by both parties.
What happens if CP fails?
However, should CP fail and litigation comes into play, both collaborative lawyers are obliged to withdraw. Moving forward, parties will have to seek new litigation counsel. This is primarily to encourage parties to see through the CP process and discourage abandoning the process unless there is really no way forward.
Preliminarily, CP gives parties much more control over the outcome than litigation as it is collaborative and interest-based.
Next, the use of a participation agreement ensures that parties may be more open to discussion and collaboration. This is since parties agree to refrain from litigation, which may help alleviate the pressures which arise from the option to the opt-out at any time during mediation.
The involvement of neutral third-party professionals also greatly aids the effectiveness of discussions. This is since the process could become better tailored to the parties’ circumstances by accounting for their financial interests, childcare arrangements, emotional well-being, etc. Moreover, such discussions may help parties better understand each other’s situations and perspectives, thus leading to a better solution.
Moreover, having various professionals involved in a single stage can serve as a “one-stop shop” for parties to settle many issues at a more cost-effective rate. This is instead of spending more time and money seeing each professional individually for advice.
Lastly, the presence of a lawyer ensures that each parties’ interests are always represented during meetings. Here, there is a much lower chance that the agreements will be influenced heavily by more domineering parties (if any) as the lawyers may intervene.
First, CP is heavily reliant on the cooperation of both parties to provide the necessary documents, as disclosure is voluntary. Thus, progress can be disrupted should one party refuse to provide any information requested, making CP ill-suited for disputes involving complex financial situations or significant assets. Also, failure to resolve the issue during the CP process also means a lot of time and money wasted on the process, since parties have to seek out new lawyers for litigation.
Second, while CP is typically cheaper than litigation, it is potentially costly (at a first glance) due to the number of parties involved in the process. With the need for specially-trained collaborative lawyers, and potentially many third-party professionals, costs can increase quite rapidly. This could lead to two issues later on: first, parties may feel like they have no choice but to settle due to the substantial investment made in CP; or second, should CP fall through, parties may be all the more bitter over the amount of money and time spent.
With regard to costs, parties should consider whether having a “one-stop shop” is important to them. If yes, the costs involved in CP may be worthwhile as they would save on time and money otherwise spent consulting the various professionals individually.
CP may be the best option where parties prefer or need to have legal counsel and other professionals to support them during the negotiation process (e.g. if they are soft-spoken, or easily influenced by the other party), and would like to avoid litigation. Further, due to the voluntary nature of the disclosure of information, CP may be better suited for cases where there are no substantial assets involved in the dispute.