What Happens if Collaboration Ends?

When it becomes apparent that Collaboration just isn’t working for you, what do you do?

Step 1

If you are not pleased with what has happened in Collaboration, talk to your lawyer, your divorce coach, or any other member of your Collaborative Team. Often something can be done within the Collaborative process to deal with your concerns. Sometimes, your Collaborative lawyers can adjust the process to make it work better. For example, if meetings are very stressful, the lawyers can look for a way to continue Collaboration without face to face meetings. I have done a file where we officially left Collaboration, but we drafted and signed a new process agreement and finished off the file without 4 way meetings.

If nothing can be done to deal with your concerns or Collaboration is ending because someone else withdrew, find out more. If the other lawyer withdrew, can Collaboration continue with a new lawyer or is it a red flag that Collaboration will not work? If your spouse withdrew, how does he/she propose completing matters? Has she/he hired a Court lawyer? Is she/he simply doing nothing?

Step 2

Review your Collaborative Commitment (or similar type) Agreement. This is the Agreement you, your spouse and each member of your Collaborative Team signed at the beginning of Collaboration. It may have some rules for how you and your spouse can leave Collaboration and how your Collaborative work product can be used outside of Collaboration. Make sure you are giving or have received the appropriate notice of the intention to leave Collaboration to all of the people who are entitled to receive it and in the manner set out in the Agreement. (The Agreement I use states that the participants have to give 30 days written notice to each member of the Collaborative Team and they cannot do anything in the Court system until after that notice has expired unless there is an emergency).

Step 3

Hire a new lawyer. You need to obtain legal advice about what your choices are for resolving matters. You need to be prepared for any Court action that might be taken. Provide your Collaborative Commitment Agreement and your Collaborative file to your new lawyer. Find out how the lawyer charges and how much this could cost if you have to proceed in the Court system or any other process to get a final resolution.

Step 4

If you reached tentative Agreements in Collaboration, you and your spouse need to be clear about whether or not you wish to continue to abide by those agreements or not. You need to be clear about what matters will require re-negotiation and what matters do not need to be re-negotiated. Sometimes this is clear by a review of the Collaborative Meeting Minutes. We identify these issues in our Minutes as “Agreements to be Relied Upon” which means that even if Collaboration ends, the participants intend to continue to abide by those agreements. They are not conditional on anything else. However, your new lawyers need to have a discussion about any other agreements that are not specifically set out that way in the Minutes. It might even be an agreement to use the values set out in Collaboration, or a partial agreement on some parenting matters. Do not assume that you will have to renegotiate everything. Often Collaboration ends simply because participants are having difficulty functioning effectively in the meetings. Their emotions overwhelm them. Often one little thing happens that pushes a participant over the edge. That one little thing need not render all of the good work you did in Collaboration useless. You need not redo everything. You can often use much of the work and expand on it. But do not assume that you are doing that. Make certain you and your spouse agree on it.

Step 5

Decide if litigation is necessary. If not, you may be able to simply negotiate a settlement by your lawyers exchanging letters. Your new lawyer can usually use the information gathered in Collaboration for settlement purposes – they just cannot use it in Court. Make sure that you and your lawyer both know exactly what you can take from the Collaborative process to use in Court. Be prepared to instruct your lawyer to object in Court if your spouse or his/her lawyer violates that rule.

Step 6

Learn from what went wrong and try to avoid it in the future. Nothing is a failure if you have learned something from it.

Marilyn Herrmann

Collaborative Lawyer and Mediator

Niblock and Company LLP

Medicine Hat, AB CANADA

Excerpt from: What Happens if Collaboration Ends?

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