Collaborative approach effective in high-stakes divorces: Silbert
By AdvocateDaily.com Staff
Silbert, principal of Sharon B. Silbert Professional Corporation, points to the collaborative process as a way to resolve divorce files that include a complicated business valuation and income determination issues.
“In many cases where the files could be resolvable, the use of the traditional adversarial method of negotiation can lead to massive legal and professional costs and negotiations that drag out for extremely long periods of time,” she says.
But in a collaborative process, third-party professionals are typically retained jointly by both parties, says Silbert, who has successfully represented clients in collaborative family law matters that involve business valuators and other financial professionals.
In the case of a business owner, where the value of their business needs to be determined for equalization purposes, she says parties in adversarial negotiations or those going through the court process typically each hire their own chartered business valuator (CBV) to establish the worth of the business.
But that can result in different conclusions, leading to an argument over which opinion should be adopted, says Silbert.
When using the collaborative approach, each party signs a participation agreement about how they’re going to work together, she explains.
Key features of the process are openness, transparency and full disclosure, Silbert adds.
That includes whether they will use a professional to do a business valuation or income report and how they will use any information or documents generated as a result, she says.
“The parties can decide together, with the assistance of their lawyers, who they want to hire, and have that retainer move forward jointly,” says Silbert. “Having a jointly retained professional gives both parties an opportunity to speak with that person, ask them questions, and share with them any information they may have.
“And it’s easier for the professional to prepare an accurate and comprehensive report because they are able to gain a deeper understanding of the relevant issues by working with both parties directly.”
Silbert sees it working for a variety of situations, including a divorce where there is conflict.
In a situation where there’s a significant amount of money at stake, there can be real savings associated with addressing complicated financial issues co-operatively, which is in everyone’s best interest, she says.
“I have focused exclusively on settlement-oriented work,” says Silbert, who will do negotiations for divorcing couples using the collaborative process as well as more traditional family law negotiation.
In the Niagara Region where she practises, the profile of the collaborative approach has increased in the last couple of years, in part, because of the group of professionals available and committed to its use, she says.