Keeping it out of court
Mediation/collaborative law and divorce.

Divorce isn’t easy, but it doesn’t have to get ugly. The headache of costly legal fees, bitter battles in front of a judge and shattered memories don’t have to be what’s left, of what originally was, a happy marriage.

Instead of turning to the court system where a judge ultimately decides how your issues are resolved, a mediation/collaborative approach is an alternative which focuses on minimizing conflict, relying instead on compromise.

“I would certainly say Collaborative Practice is not uncommon but we certainly would love the word to get out there so more people accessing it,” says Shannon Breckman, a lawyer who practices Collaborative Law. “The ones that do report high
satisfaction levels with the process.”

Collaborative Law, or collaborative practice, is a process that separating spouses can use to resolve the issues of their separation by way of agreement, without going to court.

Through this course of action, each spouse hires a collaborative lawyer knowledgeable in conflict resolution. All parties must pledge not to go to court.Once all relevant documents are turned over, the spouses and their lawyers take part in a series of close-door meetings until an agreement is reached. Typically, a settlement can be reached in three sessions but Breckhman says it can sometimes take longer. It all depends on a person’s schedule, and the specific issues facing each couple.

Once a settlement is completed, a separation agreement is drafted and signed by both spouses. The separation agreement deals with matters that need to be finalized so the couple can live separately. It outlines all of the arrangements for the future, including property division, a parenting plan and ongoing financial arrangements as deemed appropriate.

“I have been doing this work for probably eight years,” says Breckman, who has been practicing family law in Winnipeg for 20 years. “In the hundreds of cases I have done only six cases didn’t resolve in a full agreement.”

Through her past job as a teacher, Breckman saw firsthand how harmful divorce can be for children and wanted to find a healthier way.

“I saw even back then the examples of children really harmed through divorce and thought, ‘Oh parents, can’t we do this better for our kids’ sake?’ To be part of a system that is making the best of a situation that is not necessarily ideal is a much more satisfying way to work,” Breckman says.

“The focus is on getting through this in a way that will leave the family able to manage and cope as a family.”

While the separation agreement is important to hammer out, the main goal is to come to a conclsion that best suits the children, Breckman says. That’s why relationship coaches, financial planners and child development specialists are available in case clients need additional help coping, with the life-changing decisions facing them.

“Even when we have couples that don’t have kids, I hear quite often from people that if the marriage has to end, they are happy to do it in a way that doesn’t sour the memories of the good times they had together,” she says.

Mediation is also an option that is available to couples, she explains, but not as common. In this particular system, the spouses have one mediator who assists them with negotiations on a neutral level.

While no legal advice is given, the mediator gives basic information to help the couple sort through the process. However, Beckman says there is the potential for miscommunication.

“There is such a potential for miscommunication with what lawyers say to their client and what the client takes from that and conveys in the mediation,” she says. “And a challenge may be that there is a power imbalance between the husband and wife and that’s harder to address in mediation than collaborative practice.”

Collaborative Practice Manitoba currently has 45 lawyers, seven relationship coaches, four financial planners and two child specialists on their membership. Another group is training in Brandon to offer the service there.

For more information on what’s offered in your area and if this process is right for you, visit. www.collaborativepracticemanitoba.ca

ADVANTAGES OF COLLABORATIVE PRACTICE

Contains conflict
Rather than taking steps to escalate conflict, efforts are made to reduce or eliminate the conflict. This often involves acknowledging and dealing with the emotions behind the conflict. People make bad decisions when they are in conflict and being controlled by their emotions. Often the legal pieces of the separation fall into place much easier once the emotions are understood.

Often less expensive than adversarial process, which can fuel unreasonable positions and discourage cooperation. With the CP approach, people are usually more willing to consider reasonable settlement options and provide financial information on a timely basis. This can reduce the legal fees, paperwork and court attendance.

Less costly on an emotional basis
The CP process is often less stressful emotionally because an effort is made to deal with emotions in a healthy way, leaving the parties and their families better able to cope in the future.

Faster
The meetings can be scheduled to suit the lawyers and the spouses and there are no delays waiting for court time.

Creative solutions
CP allows people to reach agreements custom-made for their family's specific needs. The results are often far more creative than what a court can order. Reaching agreement also keeps the decision-making power in the hands of the spouses, not a third party.  

CP allows people to develop a new relationship and way of relating as parents, not as spouses. It helps establish communication patterns that will allow them to deal with changes as their families grow and their circumstances change, in a cooperative way, so that legal intervention isn't needed in the future.