Principles of the Participation Agreement

Although not all participation agreements are the same, the following describes the nature of, and the provisions contained in a typical agreement.

Parties to the Participation Agreement: If the clients involved in a family law matter and their lawyers choose to use the collaborative family law process all four of them – the two clients and the two lawyers – enter into a written participation agreement. Each of the clients and each of the lawyers is a party to the agreement and must sign it.

Introduction: The agreement opens by the clients and their lawyers undertaking to settle all the issues arising from the clients’ relationship and their separation by following the principles of the collaborative law process. This may be followed by a statement that the goal of the collaborative law process is to settle the issues in a non-adversarial manner in order to minimize, if not eliminate, the negative economic, social and emotional consequences for the clients and their family that would result from litigation or negotiations in the context of the adversarial system. The clients, with the assistance of their lawyers, agree to focus instead, on the merits of each issue and to explore common interests. This generates a broader range of options for settlement than would be the case in a strictly rights-based approach.

Scope of Collaborative Lawyer’s Services: Collaborative lawyers are committed to assisting the clients reach agreement. In pursuing this goal they are both legal advisors and negotiation coaches. They ensure that the clients are fully informed of their legal rights and obligations. Both before and during the negotiation process, they help the clients define issues and set priorities. They assist in organizing and presenting the information required for decision-making including the preparation of income statements, budgets and statements of assets, and the production and exchange of all important documents such as income tax returns and mortgage statements. They help the clients set the agendas for settlement meetings and advise them on the homework to be done between meetings. They instruct and prepare the clients to take a major role in the negotiations teaching them effective communication, listening and negotiation skills. Part of the teaching is done by the lawyers, themselves, demonstrating good negotiation behaviour in the settlement meetings.

They guide the negotiations to help the clients uncover and articulate the client’s own interests (needs) and understand those of the other client. They brainstorm with their own clients and as part of a foursome to develop options aimed at producing win-win outcomes. Where necessary, they intervene as mediators to bring the negotiations back on track, to diffuse conflict and to resolve impasses. With these efforts and sincere intentions on everyone’s part, agreement is usually reached.

However, if for some reason the attempts do not come to fruition in an agreement, and the clients embark on litigation – and this is the fundamental point - the collaborative lawyers must withdraw. They, together with all members of their firms, are disqualified from continuing to represent the clients. Other lawyers must take over. This restriction on the scope of the collaborative lawyer’s services is a necessary condition to maintain confidentiality and to protect the integrity of the collaborative process. By eliminating litigation from the collaboration tool kit, all concerned in the collaborative process are pushed to the limits of their ingenuity to find satisfactory solutions. No one likes failure. All of us work for success. A prospect of failure only makes the clients and their collaborative lawyers work harder to find that sometimes elusive key to a mutually acceptable resolution. This hard work usually pays off.

Collaborative Lawyer Responsible to Client: While the collaborative lawyers share a commitment to the collaborative process, each of them has a professional duty to represent his or her own client diligently, and is not the lawyer for the other client.

Children: Where there are issues involving the enjoyment of, and responsibility for any children, the clients and their lawyers agree to be guided by what is in the children's best interests. They undertake to act quickly to resolve these issues in order to promote a caring, loving and involved relationship between the children and both parents. Along with this general undertaking they may state in the agreement particular rules to be implemented immediately such as:

• neither parent will make changes to the location of the residence of the children without the prior agreement of the other parent;
  
  
• both parents will refrain from criticizing or belittling the other parent, or his or her family in conversations with the children or to others in the presence of the children;
  
  
• neither parent will not use the children for the purpose of acting as messengers or communicating with each other; and
  
  
• the parents will not discuss issues about their separation with, or in the presence of, the children.

Rules and Principles of the Process: With respect to issues concerning the children and all other issues to be dealt with, the agreement may set out some of the rules or principles governing participation in the collaborative law process such as:

• written and oral communications are to be respectful and constructive;
  
  
• communication during settlement meetings is to be focused on the economic and parenting issues arising out of the dissolution of the relationship and the constructive resolution of those issues;
  
  
• all four parties are to deal with each other in good faith and to promptly produce all relevant information reasonably required including the disclosure by the clients of all their assets, income and debts;
  
  
• neither a client nor a lawyer is to take advantage of inconsistencies or miscalculations in information furnished by another party, but is to bring them to the attention of the party and seek to have them corrected;
  
  
• the lawyers are to support and encourage the clients to speak freely and express their needs, desires, and options without criticism or judgment by any of the others; and,
  
  
• neither a client nor a lawyer may threaten to withdraw from the collaborative law process, or to take the matter to court as a means of achieving a desired outcome or forcing a settlement.

Referrals: The agreement to participate in the collaborative law process does not preclude the parties from referring issues, such the development of an appropriate parenting plan for the clients, to mediation or another appropriate dispute resolution process.

Experts: When needed, experts such as valuators, child therapists or tax planners are to be jointly retained as neutrals. They are to be directed to work in a cooperative effort with all four parties to resolve issues.

At the commencement of the retainer, the parties are to decide on how the expert’s fees should be paid, and whether the expert report will be covered by the confidentiality clause in the agreement.

Any opinions or report obtained from an expert retained by one of the clients alone, is to be disclosed and may be subject to the confidentiality clause of the agreement.

Cautions and Limitations: The parties are to acknowledge their understanding that there is no guarantee that the collaborative law process will be successful in resolving their family matter. They are to acknowledge that the process cannot eliminate concerns about disharmony, distrust or irreconcilable differences.

No Court Intervention: The clients and the lawyers are to waive any rights, for the duration of the collaborative law process, to examinations under oath, formal court hearings, restraining orders and other procedures provided by law. They are to acknowledge that participation in the process and any settlement reached is based upon the assumption that the clients and their lawyers have acted in good faith and have provided complete and accurate information to the best of their ability.

Withdrawal of Client or Lawyer from the Collaborative Law Process: If a client or a lawyer decides to withdraw from the collaborative law process, written notice is to be given to the other lawyer and the client through this lawyer. On termination of the process there may be a specified waiting period of say, thirty days (unless there is an emergency), before any court hearing so that the clients have time to retain new lawyers and make an orderly transition of the matter. All temporary agreements are to remain in full force and effect during this period. The intent of this provision is to avoid surprise and prejudice to the rights of the other Party. Any party may bring this provision to the attention of the court to request a postponement of a hearing.

If a client wishes to change to a new lawyer, but to continue with the collaborative law process, written notice is to be given to the other client and the new lawyer must execute a new collaborative law participation agreement. If a new agreement is not executed within a specified time, the other client is to be entitled to proceed as if the collaborative law process was terminated as of the date written notice was given.

If either lawyer withdraws from the process for any reason except those set out in the mandatory termination clause of the agreement, the withdrawing lawyer is to give written notice to his or her client and to the other client through his or her lawyer. If the client whose lawyer has withdrawn elects to continue with the process, he or she is to give written notice of this intention to the other client through his or her lawyer. The new lawyer is to execute a new collaborative law participation agreement within 30 days. If a new agreement is not executed within 30 days, the other client is to be entitled to proceed as if the collaborative law process was terminated as of the date the first written notice was given.

Mandatory Termination of the Collaborative Law Process: The agreement is to provide that a lawyer must withdraw from the collaborative law process if he or she learns that his or her client has withheld or misrepresented information, and continues to withhold and misrepresent information, or has otherwise acted to undermine or take unfair advantage of the collaborative law process. The lawyer withdrawing is to advise the other lawyer in writing that he or she is withdrawing and that the collaborative law process must end.

Confidentiality: All communications and information exchanged within the collaborative law process are to be confidential and without prejudice. If subsequent litigation occurs:

• neither client may introduce as evidence in court information disclosed during the collaborative law process, except with the consent of the other client or as may be required by the court;
  
  
• neither client may introduce as evidence in court information disclosed during the collaborative law process with respect to either client’s behaviour or legal position with respect to settlement;
  
  
• neither client may request or compel either lawyer to attend court to testify in any court proceedings, or request or compel either lawyer to attend for an examination under oath, with regard to matters disclosed during the collaborative law process;
  
  
• neither client may require the production in any court proceeding of any notes, records or documents in the lawyer's possession.

The clients and their lawyers are to undertake that these guidelines with respect to confidentiality apply to any subsequent litigation, arbitration or other process for dispute resolution.

Rights and Obligations Pending Settlement: While the Collaborative law process is ongoing, the clients agree that:

• neither client is to dispose of any assets, change beneficiaries or title to property, except as may be required for usual household expenses or in connection with the operation of an existing business, without the written agreement of the other spouse; each client is to respect each other's privacy;
  
  
• all existing insurance coverage is to be maintained and continue without change in coverage or beneficiary designations;
  
  
• all existing extended health and dental benefits are to be maintained in force for the spouse and the children;
  
  
• the ordinary residence of the children shall not be changed or the children removed from the Province of Ontario except by prior written agreement;
  
  
• neither client is to incur any debt or liability for which the other may be held responsible, without the other client’s prior written agreement.

Enforceability of Agreements: If the Parties require a temporary agreement during the collaborative law process, the agreement is to be in writing and signed by the clients. If either of the clients withdraws from the collaborative law process, unless the agreement sought to be enforced provides otherwise, either client is to have the right to present the temporary agreement to the court as a basis for an order.

Unless the agreement provides otherwise, any final agreement signed by the clients could be incorporated in a court order or filed with the court for enforcement.

Execution of Agreement: The participation agreement must be signed by each of the clients and each of the lawyers.