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Separation & Divorce: Sometimes there's a better way

For many people, the first introduction they have to lawyers comes because they are separating from or divorcing their spouse. If someone has never dealt with lawyers before (or maybe even when they have), they usually have ideas about how dealing with lawyers will go. Some people think that lawyers can fix all of their problems, including making their spouse easier to get along with. Some people think that lawyers mess everything up; that things could go much more smoothly if they just left the lawyers out of it. Some people think that lawyers are there to get them everything they want, including revenge on their spouse. Some people come in expecting to have to talk their lawyer out of launching a war. Whatever they think, most people understand that the traditional methods of working out issues between separating partners involves trying to advance positions to the point of settlement, and if settlement doesn't happen, a judge will have to make the call.

Sometimes the traditional method works. Sometimes the spouses can work with their lawyers to come up with a solution that works for everyone. Sometimes a judge has to make a decision and it winds up working for everyone. Sometimes, however, it doesn't work so well. Sometimes spouses feel pushed to agree to something by their lawyers or by the other party that is simply not going to work. Sometimes the decisions made by a judge just don't jive with how your family operates. In any of these outcomes, the relationship between the spouses (particularly as co-parents) is no better than it was at the outset and the spouses wind up in a lifelong battle that continues long after the orders are signed at the courthouse.

So now what? If the traditional methods don't work, or you're not able to come to an agreement through a mediator or at your kitchen table, what then? What if your relationship with the other spouse has deteriorated to the point that none of this works, even once the decisions are made?

Enter collaborative family law.

Collaborative family law aims to help you and your spouse craft your own solutions that work to meet the interests of you both. It involves putting away the "weapons" (using the kids, or the threat of going to court) and coming to the table ready to look for real ways to make your lives as co-parents better for you and your children, and it does this by examining the why behind the want. This is also known as interest-based negotiating.

Collaborative family law participants put away the weapons.

Photo credit: Tabitha J. Webber

A classic example of interest-based negotiating can be seen in two people fighting over whether a window is open or closed. Person 1 wants the window open; Person 2, closed. Person 1 explains that she needs some fresh air; Person 2 explains that he has a large stack of papers that will blow in the breeze created by an open window. The solution? Open a window in a nearby room. Fresh air, no breeze. It seems like an easy solution, and it is, but unless the people expressed their reasons behind their positions, that solution may not have been found.

Shifting to Interest-based Negotiation

It seems like a no-brainer. Just explain your reasons and work it out. But when people are going through a family breakdown, they often need help figuring out what their interests are behind their positions, and even more help expressing those interests to the other party.

In collaborative family law, each party still has their own lawyer, but they have a lawyer who's been trained in the collaborative process. Sometimes, there are collaboratively-trained mental health professionals and financial professionals involved as well, who can help sort out some of the issues that aren't necessarily legal issues, but often go hand-in-hand with separation and divorce. Using this multidisciplinary approach allows the parties to not only come up with solutions that work for their lives going forward, but can help the parties repair their relationship to the point that everyone can move forward to lead peaceful lives where the children and both parties thrive.

In many separations, the parties are given common scenarios by lawyers and judges based on the law and asked to fit their lives into those scenarios. In collaborative family law, the parties come up with their own solutions together to fit the needs of the family.

Lots of separations are amicable, and if people are friendly but still having difficulty finding solutions to their issues, collaborative family law is certainly an option. However, it's not just for those people who get along so well that you wonder why they split up in the first place. Collaborative family law can also be an excellent, and arguably more appropriate, option for people who can't see eye to eye on anything.

This is not to say that collaborative family law is right for everyone. Some situations will only be resolved by a judge. Some people should not be in the same room together for reasons of safety. Some people will do just fine sitting at their kitchen table working it out over some nice tiramisu. If you speak to a collaborative family law professional, he or she can help you determine whether this process is right for you.

If you decide that this is the route for you and your soon-to-be-ex, know that part of the process involves committing to not go to court. If you decide later than you need to go to court because the process was unsuccessful, you must find another lawyer to help you. This commitment gives all involved an incentive to stick with the process, even if it gets difficult at times. Furthermore, it stops anyone from using the threat of going to court if one party doesn't concede to the other, which rarely ends well.

If you would like more information about collaborative family law in Nova Scotia and how the process works, visit

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