Nathalie favours the use of Collaborative Law, when appropriate, as a means to reduce the financial and emotional impact on families and their business.
She also works alongside a range of technical advisors including accountants and estate lawyers in the negotiation of pre-nuptial agreements.
Collaborative Law is an extremely evolved method of dispute resolution, which allows the couple to keep control of the process and the outcomes, rather than relinquishing decision making to an arbitrator or a judge.
Collaborative Law was created by a senior US lawyer who was involved in a messy Court file during which his friendship with the opposing lawyer was destroyed, and both clients were left devastated and unhappy with the Court process and the Court decision. He considered the following issues:
- It is generally accepted that in North America, approximately 80 to 90% of cases are resolved before going to trial. Despite this high percentage of out-of-court settlements, clients and lawyers still report an extremely high degree of dissatisfaction with the process and the result;
- Files have become more complex not necessarily because of the legal issues involved but because of the style and practices of the lawyers involved;
- Since a majority of cases settle out of court yet the parties are still dissatisfied at the end, the goal of the lawyers should not be simply to find legal solutions for their clients, but to preserve the basis for an ongoing relationship or, at the very least, not make the relationship worse.
In Collaborative Law, the parties and their lawyers agree to make a good faith attempt to address everyone’s legal, financial, and emotional needs. This process also helps parents plan for their future and that of their children with the assistance of their lawyers and sometimes other professionals such as child and financial specialists.
In this model, parties agree to:
- provide full financial disclosure;
- disclose all facts that are relevant to the decision making process; and
- negotiate in good faith.
Another important feature of Collaborative Law is that the lawyers must withdraw from the case if the parties cannot resolve their issues and have to go to Court. Since there is a 90% success rate in Collaborative Cases,1 the possibility of going to Court and having to change lawyers is low. This is designed to help clients feel like they can answer the lawyers’ questions during negotiation sessions freely, without wondering if their answers will be used by the opposing lawyer to mount a court case against him or her. This feature fosters a more comfortable and trusting environment for the negotiations.
Participants to Collaborative Law negotiations have generally reported a high degree of satisfaction with the system.2
If you choose this process, both spouses and their respective lawyer will sign a Participation Agreement which contains the rules that define Collaborative Law. Signing the Participation Agreement really brings reality to the spouses’ commitment to this good– faith process.
At the end of the process, if a deal is reached, the lawyers will work together to build a legally binding Separation Agreement that will reflect who you are and what you have created for your family.
Collaborative Lawyers are trained in the most evolved system of negotiation called “interest–based negotiation”. This type of negotiation enables each party to find solutions which take into account their interests and which incorporate the needs of both parties.3
Interest– based negotiation works like this:
If the issue is the house and the parties’ positions are:
- Parent A insists on keeping the house
- Parent B wants to sell the house
The Collaborative Lawyers will go beyond the positions of “I want to keep the house” and “I want to sell the house”, and will ask several questions to understand why the parties want what they want. It may be that Parent A wants to retain the house to have a beautiful place for the children to grow up in after separation. But for Parent B, it may emerge that money is needed from the sale of the current house to be able to afford a residence in the same neighbourhood, so that the kids can really start a joint parenting schedule.
Once the reasons behind a demand become clear, partners tend to be more open to alternative solutions. For example, in this case, the solution could look like this: sell the family residence and use the proceeds to buy two smaller houses close to each other so that both spouses can have a beautiful home for the children; or let Spouse A keep the house but accept reduced support payments from Spouse B so that Spouse B can afford a house in the same neighborhood. Either way, both win, and so do the children. If the parties had been in the Court system, it is highly possible that the depletion of the family savings for the cost of the lawyers would have made either of these solutions impossible, leaving the family financially depleted, the possibility of buying two houses in the current neighborhood less achievable, the sale of the house probably inevitable, and the children worst off.
The idea of using “interest– based” negotiation is to negotiate a win– win situation.
When the interests of both parties are known, solutions that are complementary to both can be found; then, compromise becomes less important and both parties are generally more satisfied with the solution on a long term basis. It increases the chances of improving the parties’ relationship after the process is over.
Collaborative Lawyers are encouraged to model good behaviour and promote open communication and respect throughout the process, even when there is disagreement.
Traditional Lawyer Negotiation
Traditional layer negotiation is when the lawyer helps the client negotiate a separation agreement, but the lawyers are not trained in Collaborative Law.
Unregulated or traditional negotiation is not a process with specific guidelines or rules of conduct. There is no cohesive method of negotiation (unlike in Collaborative Law where “interest-based” negotiation is used). The goal is not to help separated couples to separate in a way that is fair to both parties nor to foster a long lasting post-separation relationship. The main goal of unregulated or traditional negotiation is to conclude a Separation Agreement, and all tactics (threats of going to Court if the position is not accepted, stonewalling, intimidation, etc.) are available, sometimes with little regard to the consequences on the families involved, and with no regard for how hurtful communications and actions may be.
While choosing any kind of negotiation rather than going to Court is likely to make your process smoother and less expensive, your level of satisfaction in this process will largely be influenced by the personality and style of the lawyers and your and your spouse’s conduct.
Some family law lawyers negotiate separation agreements in this system on a regular basis and do so extremely ethically and appropriately and provide a great service to their clients. Sometimes this is not the case.
In unregulated lawyer negotiation, at any point, the file can be taken to Court by the same lawyers that attempted the negotiation. This makes for strenuous relations between members of the negotiation team, as there is little incentive to trust the intentions of the other side’s lawyer during the negotiations.
Sometimes one spouse would like to try Mediation or Collaborative Law but the other spouse does not want to, or the other spouse has already chosen a lawyer who does traditional negotiation. That family will fall into the “traditional negotiation” system by default. If this is the case, youc an still work with a collaborative lawyer as they are likely to be able to bring in strong advocacy while maintaining some decorum.
Time and time again we have seen families emotionally and financially devastated by the legal process because of the conduct of the parties (clients and lawyers). This seems to happen more in traditional negotiation than in other types of negotiation.
Business Owners and their Families
Nathalie is one of a handful of Canadian lawyers who is a certified Family Enterprise Advisor™. Her private process results in more positive experiences for family members and children. Read more
An accredited mediator, Nathalie mediates pre-nuptial agreements and separation and divorces for families with businesses or complex portfolios. Read more