What is collaborative family law?
Collaborative Practice is a reasonable approach to divorce based on three principles:
• Pledge not to go to court
• An honest exchange of information by both spouses
• A solution that takes into account the highest priorities of both adults and their children.
Mutual respect is fundamental to the collaborative way. You may cease being spouses, but you don’t cease being worthy human beings. When respect is given and received, discussions are likely to be more productive and an agreement reached more easily.
The key difference between Collaborative Practice and conventional divorce is the pledge to reach an agreement before going to court. You and your spouse keep control of the decisions yourselves, rather than giving it up to a judge. In order to accomplish that, all of the parties consent in writing to be part of a respectful process that leads to an out-of-court resolution that is legally binding. In Collaborative Practice, the goal is to develop effective relationships, solve problems jointly, and prevent a court battle.
Even under the best of circumstances, communication can be strained as a relationship is ending. Yet keeping the lines of communication open is essential for reaching an agreement. Collaborative Practice provides for face-to-face meetings with you, your spouse, your respective lawyers and your team as needed. These sessions are intended to produce an honest exchange of information and expression of needs and expectations. When the issues are openly discussed, problem solving can be direct and solution focused. Negotiations take place in ‘four-way’ settlement meetings that both the parties and their lawyers attend. The lawyer’s role is to guide and advise the parties towards a reasonable resolution. While the legal advice is an integral part of the process, all of the decisions are made by the parties. Conflict resolution, and an outcome that is satisfactory for both parties and their families, is the objective. If either party chooses or decides to proceed to court then the collaborative process ends, the lawyer’s fees are paid and both collaborative lawyers are disqualified from the process and can no longer act for either party in the context of contested family law proceedings.
The principles of Collaborative Practice are appropriate for other family law matters such as cohabitation and guardianship agreements.
What is mediation?
There are generally-recognized principles of mediation. The mediation process at Academy Family Law follows these principles and promotes active participation.
These principles include:
Mediation is a voluntary process in which parties approve to participate, as opposed to court trials that oblige parties to attend.
IMPARTIALITY / INCLUSIVITY
A mediator should avoid any sort of favouritism or judgment towards one party and avoid any conduct that reveals partiality. Mediation should be a balanced process in which parties are treated fairly and whose perspectives are respectfully integrated.
The mediator is bound not to disclose any information s/he has become aware of during the mediation. Any exceptions to this rule should be made explicit to the parties.
This is the key principle of Mediation and the one element that clearly distinguishes it from litigation. Parties have ownership of the process and the responsibility to find a mutually agreed solution. The role of the mediator is to foster dialogue and facilitate a voluntary resolution of a dispute, not to solve, suggest, or find solutions, and coerce parties into accepting anything they haven’t elaborated themselves. The mediator’s role is to facilitate the free exchange of ideas and never impose an agreement.
CONFLICT OF INTEREST
The mediator should not have an interest in the outcome, not even in a peaceful solution. If the mediator believes there is a conflict of interest (knowing, favouring one party, etc), the mediator should recuse him/herself.
COMPETENCE / PREPARATION
Training and experience are key in mediation. Typically, it takes a substantial training, practice and experience to gain accreditation and credibility.
Mediation should take place in a physically safe place. The mediator should create an environment where parties can freely talk and can trust the integrity of the mediator and the process.
This aspect refers to all of the above and in particular to the mediator’s ability to be aware of his/her own judgments and assumptions so not to negatively affect the process. The mediator shouldn’t offer opinions on issues of merit or specific subject matter, rather encourage the parties to equip themselves with all the expert support they believe they will need to solve the conflict. A mediator should conduct the mediation fairly, diligently, with sensitivity, civility and respect.
What is arbitration?
Another way of dealing with a dispute outside court is arbitration. An arbitrator is an independent person who the parties have agreed can hear and provide a resolution for their dispute. Under recent changes to The Arbitration Act and the Family Arbitration Regulation, a family arbitrator must be a practising lawyer and have practised law for at least 10 years, with family law as their primary area of practice.
The arbitration process is similar to court, but simpler and less formal. Parties pay for the cost of arbitration themselves. The Arbitration Act includes specific rules about family law arbitrations. Family arbitration awards that are made under the Act are enforceable in the same way as court orders.
What can I expect during arbitration?
In many instances mediation will be used to help parties settle their matters on their own; but where that is not possible, a binding arbitral decision will be made by trained professionals. Families will have the dual advantages of having their own legal advice and the knowledge that the decision maker is independent, experienced, well trained, and a person they agreed upon. Families can also be comforted by the fact that the decision making process is one that they helped create to suit the needs of their own family in a confidential manner consistent with the law in Manitoba. Accordingly the process can be less formal and faster than certain Court processes.
For more information, please visit https://academyfamilylaw.com/services/
Who is the Collaborative Lawyer here at Safe Harbour?
Pamela Leech is a family lawyer who has made a commitment to Alternative Dispute Resolution in her approach to resolving disputes. She will work with you to establish your goals and the scope of work in your matter. This approach allows for your matter to advance in a solution focused manner which is of value to you in terms of efficiency, effectiveness and timeliness.
• Bachelor of Arts – Brandon University (1989)
• Honours Bachelor of Social Work – Lakehead University (1990)
• Master of Social Work – University of Manitoba (2000)
• Bachelor of Laws – University of Manitoba (2008)
• Certificate in Divorce Mediation – NorthWestern University in Chicago (2012)
• National Certification in Arbitration (ADRIC) (2020)
• Master of Laws – Osgoode Hall in Dispute Resolution (2022)
To reach out to Pamela, please visit https://academyfamilylaw.com/