We are often asked to be jointly retained in family law matters where one spouse is a business owner. We are engaged by both spouses to provide an independent assessment of the value of the business interests for the purposes of dividing matrimonial assets or of the income available to the business owner for purposes of child or spousal support. Until recently, the decision of the joint retention was that of the parties but that is now changing.
Appointment of a Joint Expert by the Court
Recent changes to the Family Law Rules (the “Rules”) effective September 1, 2019 has expanded Rule 20.1 related to independent experts into three separate Rules including the new Rule 20.3 in which section (1) provides for the Appointment of Expert by Court[1] and states (1):
The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case.
While the new Rules do not go to the extreme of requiring a joint expert for all family-law related business valuation reports like in British Columbia, there will be an expected trend towards more jointly retained Chartered Business Valuators (“CBV’s”). With that in mind, we wanted to highlight five key challenges and practical considerations when dealing with jointly retained valuation experts:
Aside from avoiding dueling experts, the biggest potential benefit is reduced costs to the parties. However, it is our experience that the initial fees to prepare a joint report will be slightly higher given the steps required to maintain a transparent and open process and to ensure both parties are able to provide their input into the process. The larger cost savings comes from having a single expert in the court process and in testifying at trial.
The exception to the above is when the parties decide to hire a “shadow” CBV’s to advise and assist the parties through the valuation process.
The biggest challenge in our experience is ensuring that all parties are on the same page with the scope and level of work being completed. Whether it be the level of valuation report being used or the amount of forensic investigation being conducted, we have had a number of circumstances where, part way through the process, one party expresses expectations that are beyond the agreed upon scope of work and level of reporting, which in turn creates conflict.
Another challenge tends to be the structuring of fees and what happens when one of the parties creates an obstacle that results in additional fees beyond the original scope of the mandate. Whether it is failure to provide disclosure or making enquiries beyond the scope of the engagement, it is important that parameters are established around the payment of fees and the communication when these issues arise.
Despite best efforts, situations will arise where one of the parties may feel that the expert is not independent and is perceived as being biased in the favour of the other party. Ensuring that open and transparent communication occurs with all parties throughout the process is a vital step to mitigating the occurrence of this issue. Engagement letters should clearly document the communication process and steps surrounding the delivery of the report and the parties’ ability to provide feedback in support of full transparency.
[1] Ontario Regulation 250/19: Family Law Rules Filed July 25, 2019 effective September 1, 2019
Selling your business in an economic downturn and trying to achieve the highest price available would appear to be an unfortunate dilemma for any business owner. If you were contemplating a sale prior to these turbulent economic times brought on by the COVID-19 pandemic consider the following…
In the context of mergers and acquisitions
Economic downturns often result in the tightening of corporate coffers resulting in an overall reduction in acquisitive activity. Selling in the midst of a storm would generally be unwise.
In light of the current borrowing environment, with the cost of debt continuing to hover at relatively all-time low levels which has lasted for the better part of over a decade, and stimulus offered by Central Banks resulting in continued low costs of borrowing, it may be the perfect time for investors with the appetite for risk to buy. The lower your cost of capital, the easier to bolster returns on borrowed funds.
It is worth noting that a decrease in public company price-earnings ratios tends to produce a corresponding “trickle-down” effect for the multiples paid for private companies – the higher the risk, the lower the multiple that is going to be paid. In the long-term, we expect that public panic will retreat, pent-up demand for goods and services will come on-line, and in conjunction with central bank stimulus injections will culminate in an appreciation of financial assets. The perfect time to sell may be just around the corner. While purchasers will recognize the impact of the pandemic when assessing historical results, just how the business was able to weather the storm will be a major consideration for them.
Listed below are some measures for you to focus on the marketability of your company that could help maximize value in this current environment:
Understand the drivers of value for your business
Business value drivers are critical factors that will factor heavily in a potential purchaser’s valuation assessment. Identifying and understanding those drivers will allow you to ‘de-risk’ the company thus enhancing value.
Get your ‘House In Order’
Obtain a buyer’s due diligence listing and prepare for each item noted. While a focus on survival is essential, using excess capacity within your staff to work on those little things that you never have time for (i.e. policies and procedures documentation, standard employment contracts, etc.) will provide long term benefits. Along with this preparation, ensure your financial statements are clear of personal and non-business items and look to obtain basic tax planning and implement any changes that are required.
Lock-in key customers
How you work with your customers during this crisis will go a long way in establishing and building those relationships for the long-term. In working with them, look also for opportunities to create longer-term contractual arrangements or improved payment terms that are mutually beneficial.
Make yourself redundant
Probably the largest risk factor in the sale of private companies is their dependence on the owner of that business. Taking steps to expand customer relationships amongst your team, documenting, and sharing the technical know-how of what you do on a daily basis, and positioning the business so that it can operate without you is critical.
Demonstrate that you have a viable business interruption plan
Take steps such as:
Establish a Business Interruption Emergency Team – To spearhead the project from cradle to grave.
Identify essential functions, services, staffing – That are integral to a business’s ability to deal with a crisis.
Prepare a plan for each of the essential areas identified along with a process to triage these issues and work through them on an effective basis.
Test the plan ensuring it addresses and mitigates all identified risks.
The value of any business depends on its capacity to generate cash flows, the expected growth in these cash flows, and the actual or perceived uncertainty associated with these future cash flows. Eliminate risks associated with your business and any uncertainty associated with cash flows that are under your control.
Even in times such as these, business owners can still maximize the price received in a transaction regardless of the existing economic environment, boom, or bust.
By Trevor Hood, CPA, CA, CBV, CFF
Financial Professional
SB Partners LLP
3600 Billings Court, Suite 301, Burlington, ON , L7N 3N6
Tel: 905-633-6353
Fax: 905-632-9068
Email: thood@sbpartners.ca
SB Partners Valuations Division participated in a Virtual Town Hall focused around the impact of COVID-19 on business valuations. The talk was organized in collaboration with several global valuations governing bodies including the Canadian Institute of Chartered Business Valuators, American Society of Appraisers, and The Royal Institution of Chartered Surveyors.
A panel of valuators and appraisal experts offered practical advice on the impact of the pandemic on valuations and those whose charge is to complete them.
Listed below are five key highlights: 1. Valuation conclusions will be lower in comparison to the periods prior to COVID-19, all else equal.
While being a rather obvious expectation, the Pandemic is causing declines in value as profits are diminished and overall risk has increased. From a quantification perspective, one of the esteemed panelists for the town hall indicated that he was expecting on average a decline in the total value (enterprise value) in order of magnitude of between 10% to 15%.
2. A change in valuation modeling
Valuators will be hard-pressed to capture the volatility of earnings and cash flow generation as well as the risk and uncertainty in their cash flows using “normal” valuation models. Of all the tools in a valuators tool kit, the Discounted Cash Flow Model and variants will likely be the preferred and most generally accepted means of deriving an appropriate valuation conclusion. This is because the methodology enables valuators to capture both the declines and ultimate improvement in earnings over time adjusted for risk capturing the swing in a company’s business cycle as caused by the Pandemic.
3. Valuation dates – (Pre and Post Pandemic)
A fundamental valuation principle is that “Value is determined at a specific point in time. It is a function of facts known or knowable, and forecasts made at that particular point in time”.
In completing a valuation, the date selected will be important, as with any valuation the valuator is required to use all known facts and information knowable at this date, however, given the speed of progression of COVID-19, there could be vast differences in value conclusions over a short period for any company. A valuation completed on December 31, 2019, would likely be significantly higher than a valuation completed on March 31, 2020, just three months later. Under any circumstance, both internal and external changes that impact the prospects of a business will likely lead to a change in value.
In the context of valuations for family law, equalizing on values that were determined well in advance of the onset of the Pandemic (i.e. Prior to March 2020) will prove challenging for the business-owning spouses, as the intrinsic values determined will likely be significantly higher than the amounts the owner could actualize realize on in a transaction following the start of the Pandemic (declared globally by the WHO March 11, 2020).
4. Cognizant of management and client biases
Now more than ever, client biases from minimal valuations for family law purposes in order to reduce amounts paid to ex-spouses for equalizing family assets; to management taking ‘baths’ on asset (i.e. goodwill and intangible assets) impairments, will require valuators to maintain a healthy level of professional skepticism when vetting assumptions regarding the outlook of subject companies, and the volatility of expected cash flows in relation to the impact of COVID-19.
Value is prospective as it is the present value of all future benefits anticipated to accumulate by virtue of ownership of a business. With so much uncertainty and volatility during this current environment, it will be difficult for valuators to conclude on intrinsic valuations of companies, as management’s outlook will need to be checked to industry and economic outlooks, wherever possible.
5. Merger and Acquisition Activity, Private Equity and Dry Powder
It was also communicated that there is some optimism for M&A transaction values and volumes despite the negative impact of COVID-19 and investors’ current palettes for risk. However, private equity firms are expected to take advantage of depressed values caused by the Pandemic considering the continued large amount of available dry powder, mitigating the impact of the decline in intrinsic valuations due to COVID-19.
As Canada is faced with significant unemployment rates, worsening as the virus decimates the economy, a significant Federal deficit that is exploding, future tax increases are a given. The economic damage occurring daily is also significant. However, recovery is also a given, what goes down must come up, it is only a question of timing – the same will hold true with business valuations.
by Ian Lobo
Ian is Vice-President of the Valuations Division with SB Partners, with over 15 years of experience in professional accounting and advisory services.
Comments Off on Child Support Payments and Eligibility for the Dependant Tax Credit
By Bronwen Bruch
How support payment details can enable or impede claims of an eligible dependant on your income taxes.
The separation process broaches a variety of complex issues, such as finance, family law, and mental health—it is no wonder, then, that the process often requires the combined efforts of collaborative professionals to reach an optimal outcome. Likewise, a robust Separation Agreement considers input from diverse specializations and a variety of relevant precedents and policies. This attention to detail is particularly valuable in the case of child support and its evolving influence on tax credit eligibility; if not appropriately managed, this legal and financial issue can result in a potential forfeit of thousands of dollars in tax refunds.
The Eligible Dependant Issue
The eligible dependant amount, as outlined in section 118(1)(b) of the Income Tax Act, is a tax credit available to qualified single parents with custody of children below age 18. A prominent limitation, however, lies in the issue of shared custody—if both parents support the dependant(s), who can claim the eligible dependant amount?
The situation is complicated by a disparity between precedents in family law and the Income Tax Act. Often, in cases of shared custody, support obligations are calculated with the assumption that the higher-income parent will pay a “set-off” amount to the lower-income parent. For example, after entering both parents’ incomes into the Child Support Table, the payment obligation of the lower-income parent would be subtracted from that of the higher-earner for a net payment amount. Unfortunately, under subsection 118(5) of the Income Tax Act, this one-way method of payment only allows for the lower-income parent, the “payee,” to claim the eligible dependant amount (provided he or she satisfies additional eligibility criteria, such as single marital status).
Dependant Claims By Both Parents
Subsection 118(5) of the Income Tax Act does not allow for an individual to claim the eligible dependant amount if he or she is obligated to pay child support; however, subsection 118(5.1) allows for an exception provided both parents pay child support to each other (as opposed to one party paying a set-off amount). In instances of one dependant, parents can then choose to alternate eligible dependant claims; in instances of multiple dependants, each parent is eligible to claim one dependant (again, provided all other requirements for eligibility are also met).
To qualify, the obligation of both parties to pay support must be included in the Separation Agreement. Moreover, as the recent appeal of Harder v. The Queen [2016] demonstrates, the Canada Revenue Agency may not only require the written confirmation of two-way payments, but also evidence of those payments. In the case of Harder, the paying parent forfeited thousands in tax credits due to a lack of written or actual evidence of two-way payment obligations—in paragraph 11 of the appeal, the court stressed the necessity of payment evidence such as cheques or e-transfer records.
Unfortunately, the scenario of two-way payment obligations can often give way to new concerns. For example, if one parent earns a significantly lower income and depends on payments from the higher-earner in order to fulfill his or her own payment obligations, this introduces the potential for bouncing support cheques.
Evidently, the matter of shared custody dependant claims does not often allow for a simple solution, but a consultation with a trained professional such as a Chartered Financial Divorce Specialist, an Accredited Family Mediator with a financial background, or a Collaborative Financial Professional can help to clarify your options.
If you have any questions or would like to discuss the matter further, please do not hesitate to get in touch; we are more than happy to help.
Further Reading
• Canada.ca: Can you claim the amount for an eligible dependant?
• The Income Tax Act, subsections 118(1)(b) (Wholly Dependant Person), 118(5) (Support), and 118(5.1) (Where Subsection [5] Does Not Apply)
• The Divorce Act, sections 15.1 (Child Support Orders) and 26.1 (Guidelines)
• Federal Child Support Guidelines
Bronwen Bruch is a Chartered Professional Accountant (CPA, CMA), Financial Divorce Specialist, and Accredited Family Mediator; she has also received collaborative training. Bronwen has been working in the mediation field for over five years, and enjoys using her experience to assist others.
Family First Solutions
Tel: 289-201-7850 www.familyfirstsolutions.ca
Comments Off on “High Income” Families and Spousal Support
By Marian Gage
We should talk more about high income spousal support cases.
I’m not talking about the cases where a support payor earns an income just above the $350,000.00 “ceiling” set out in the Spousal Support Advisory Guidelines. I’m talking about cases where a person with a spousal support obligation earns more than $1 million.
I’m really talking about cases where a support payor earns substantially more than $1 million.
Thanks to the Spousal Support Advisory Guidelines: The Revised Users Guide and the reported cases we know a few things:
The ranges set out in the Spousal Support Advisory Guidelines aren’t appropriate in these cases, although it’s worth doing the relevant calculations to see the numbers the SSAGs produce;
In most cases the spousal support payable in these cases is well below the SSAG ranges that would be calculated if the SSAGs were applied;
In some cases courts have applied the SSAG ranges;
As in all cases, but especially in high income cases where equalization payments will also (likely) be substantial, we need to take the recipient’s property settlement into account before calculating support; and
It’s all very unpredictable.
We are told that these cases are not common. I practice in Oakville, where high incomes are not all that uncommon either. I suspect a lot of families choose to keep their family matters out of the public, over-burdened court system whenever they can. This means that the cases that will develop the precedents for these support issues are few and far between.
Is there a formula we can apply to high income cases? The short answer is no.
The most recent high-profile-ish case on the matter was a Court of Appeal case reported last year when the Court calculated the half-way point between the payor’s three-year average income of just over $1,000,000.00 and the $350,000.00 “ceiling” in the SSAGs and used that number ($675,000.00 according to the Court of Appeal) as the income on which the payor’s support would be calculated under the SSAGs.
Is that the way we should calculate support in high-income cases? Probably not. We can’t just follow this model and treat it like a “formula” that will allow us to get back to the comfort and predictability of the SSAGs, simply applied to a reduced income. That can’t be what we are supposed to do in all high-income cases, even if the result makes sense for the family in some cases.
We know we must take a fact-based, interests-based approach to these discussions when we are working with these families. A Collaborative Process, or mediation with an Accredited Family Mediator, where an experienced financial professional can assist as a neutral, can go a long way in helping high income families determine the most suitable outcome, using what we know (see above) as a starting point.
Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSO) and a partner at Berry Gage LLP
Marian G. Gage, B.J., LL.B., Acc.FM (OAFM), CS (LSUC)
Cert. Specialist in Family Law
165 Cross Avenue Suite 301
Oakville, Ontario L6J 0A9
Tel: 905-338-7941 ext 229
Fax: 905-844-9765 www.bgfamilylaw.ca
Comments Off on Does it matter if “I do?” What if “I don’t?”
By Marian Gage
The Angus Reid Institute recently published a poll indicating more than half of the respondents feel marriage is not important to them. Younger Canadians are waiting longer to get married, or they are not getting married at all.
The same poll indicates that most Canadians feel that married spouses and spouses who are cohabiting but not married should be treated equally in law.
The reality is that the law distinguishes between married and non-married spouses who are living together in several ways. On some issues there is no distinction at all. Here’s the brief breakdown…
Parenting and Child Support
It makes no difference whether a child’s parents are married, unmarried and cohabiting, or practical strangers who never shared a home. The law around parenting is child- focused and based on a child’s best interests.
Similarly, child support is considered the child’s right and has nothing to do with the parents’ marital status or living arrangements.
Spousal Support
Married people are considered “spouses” who may be entitled to receive – or have an obligation to pay – spousal support once they are married.
Cohabiting spouses who are not married are considered “spouses” who may be liable to pay or entitled to receive spousal support after they have been living together for three years, or for a shorter period of time “in a relationship of some permanence” if they have children together.
In short, in longer relationships there is no difference between married and unmarried (but cohabiting) spouses when it comes to spousal support.
Property
The law in Ontario provides a regime for sharing the value of property that has accumulated from the date of marriage to the date of separation. If one spouse has accumulated greater wealth in his or her name during the marriage, then that spouse is required to share that gain with the other spouse.
This regime only applies to spouses who are legally married. While there are some other rights and remedies available to unmarried spouses they do not share the same entitlement in the legislation.
Matrimonial Home
A matrimonial home, by definition, is a home (and/or cottage/houseboat/vacation property, etc.) that married spouses are occupying in the ordinary course at the time the marriage ends. The matrimonial home is treated differently than other property and married spouses benefit from certain rights with respect to a matrimonial home even if that home is in only one spouse’s name (and even if that spouse owned the home prior to the marriage, even if that spouse inherited the home, etc.).
No matter how long two people are cohabiting, no matter how many children they have together, no matter how much a spouse contributed to the equity/value of a home, the rules about matrimonial homes do not apply to unmarried spouses.
As self-serving as this will be given that a lawyer wrote it, I would strongly urge spouses who are thinking about cohabiting (even if there are no plans to marry) to get legal advice about what this means legally to avoid unpleasant surprises in the future.
Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSO) and a partner at Berry Gage LLP
Marian G. Gage, B.J., LL.B., Acc.FM (OAFM), CS (LSUC)
Cert. Specialist in Family Law
165 Cross Avenue Suite 301
Oakville, Ontario L6J 0A9
Tel: 905-338-7941 ext 229
Fax: 905-844-9765 www.bgfamilylaw.ca
Happy Days. Just like Fonzie, Richie and the rest of the Cunningham family on the 70s sitcom Happy Days, it is great to go to work with a smile on your face, accomplish what your client wants and get paid to do it. This happened recently in a file in which an engaged couple wanted a Cohabitation Agreement that would
become a Marriage Contract when they marry. Lawyers are often leery about doing this type of domestic contract as so many have been set aside by the courts. They are problematic because they can also be the source of a Law Society complaint.
After the initial approach from the client we decided to use the Collaborative Law method to negotiate the terms of the agreement. I only open a collaborative file if there is a properly trained lawyer representing the other party. Here I was fortunate to have such a person who was a very cordial, smart, detail oriented lawyer who is a member of Collaborative Practice Toronto.
During the first meeting with the client the financial disclosure aspect of the negotiations were discussed among many other subjects and issues. By the time our first collaborative meeting took place I was able to present a draft Financial Statement of the client to the other side along with a disclosure brief of the client’s assets, liabilities, income and tax returns. Prior to the meeting a telephone call took place to discuss the agenda and what we wanted to accomplish for our clients. The open, respectful discussion was very helpful to make the first meeting efficient and to the point. The clients appreciated that. We were not wasting their money. The other lawyer also arrived at the first meeting with her client’s Financial Statement and disclosure documents.
Even though lawyers in the collaborative law/practice process maintain their roles as advocates, the clients were encouraged to speak and express their goals and everything they wanted to achieve with the agreement. We discussed their instructions, assets structure and how future acquired assets were to be dealt with. It is vital to have full participation from the clients. After all, it is their life and their agreement.
We set the date for the next meeting, assigned homework to the lawyers and parties. Then a debriefing session of a few minutes was held with each client and then with the lawyers only. The purpose was to see what we could do better next time, iron out any misconceptions and discuss any other concerns.
At the next meeting in Toronto, which was less than an hour in length, all remaining issues were ironed out. The sample property division calculation was explained and amended for clarification. The other lawyer generously took on the drafting task. I have revised that draft after a review. Once each client reviews it and signs, the deal will be done.
If you saw and heard a person in the car next to you, whistling on his way to and from work, it was me. It is terrific to practice law this way. The simple secrets for a takeaway were signing a participation agreement not to go to court, full disclosure, open, respectful dialogue and good faith negotiations. It is so refreshing!
Noel da Silva is a Brampton Family Lawyer and Mediator trained in the Collaborative Process. He is a member of Peel/Halton Collaborative Practice, Collaborative Practice Toronto, Ontario Collaborative Practice Federation and the International Association of Collaborative Professionals.
Comments Off on All for One… One for All – Collaborative Process OR Collaborative Lifestyle
by Marty Klein
In 2007, after twenty-three, war-torn years of litigation, I just knew that there had to be a better way of resolving conflict in people’s lives. Thus began my quest – my journey into the world of alternate dispute resolution.
So I figured, “ if I’m going to do this, I better do it right. Therefore, unlike most individuals, I didn’t follow the basic, “required courses,” rather I pursued and ultimately graduated with an Advanced Certificate in Conflict Management and Mediation at Conrad Grebel College, University of Waterloo. In September 2007, I completed my Level II collaborative training. And then, in November 2014, I became an accredited mediator (AccFM). More recently I was certified as a specialist in both family mediation and arbitration (FDRP Med & FDRP Arb).
The collaborative process has always captured my heart. Yet, I am seriously beginning to wonder whether I have a skewed (misconstrued) and perhaps unrealistic understanding of what the collaborative practice is all about! My understanding of the process has always been that all of the “players” (lawyers, parties and professional neutrals) are in it together. You know, “all for one – one for all.”
Rest assured, though I may appear to be naive, I am certainly not that disjointed to appreciate that when we are dealing with partnership breakdown, emotions run high and people, even in the best of moments, can experience grave difficulties, as they walk through their brokenness.
I’m worried! Over the past year or so, I confess that I am becoming growingly disappointed with the collaborative process. Many of my colleagues, who once were diehards – sold out practitioners and professionals, are dropping by the wayside, looking into other dispute resolution processes.
Why is this happening? Why have we gotten off the track? How can we restore what I have truly believed to be a good thing? Is it because the process is mostly lawyer-driven? And let’s face it, we know what lawyers are capable of doing when it comes to conflict!
In the past five years, alternate dispute resolution training has ballooned. Myriads of lawyers and non-lawyers are attaining their accreditations. Many lawyers have plainly had it. They are being driven from court-based resolution in order to find and seek out more peaceful ways of resolving disputes. Many of us are finally “getting it” and truly beginning to realize that we need to allow and facilitate people in taking back control in their lives and in their destinies.
Although many of my colleagues would prefer to eradicate litigation in their lives, they are unable (choose not?) to do so – some because there are too many mediators and not enough business, and for others? Let’s face it, litigation breeds financial prosperity. After all, there are not many jobs that pay you a handsome return for simply sitting around for hours, waiting for your case to be heard. This leaves me thinking: “can one live the schizophrenic life of both litigator and collaborative practitioner?” For those of us who are in the collaborative practice, we’ve seen it over and over again – aggressive lawyers conducting four-way meetings under the collaborative banner, but in a most litigious and positional manner.
In 1990, in the City of Minneapolis, Minnesota, a lawyer by the name of Stuart Webb founded “collaborative divorce.” After fifteen years of practicing divorce law, Stuart “got it” and decided to take action and do something about all the road blocks and frustrations he kept running into, by settling divorce issues in court. The collaborative process had begun. Soon, other lawyers joined in, intrigued with the concept of finding resolution outside of court.
The idea of working with an opposing lawyer, as a team, convincing a couple not to go to court, caught the hearts of other lawyers. In San Francisco, they began to realize the necessity of incorporating, psychologists and social workers to join their “team” as divorce coaches and child specialists. And then came the financial consultants and other “neutrals,” working alongside of legal counsel.
We’ve all seen the videos – you know, where clients and their lawyers pleasantly sit around the table working through their issues – problem solving and generating options. Everyone seems to be so respectful of one another and it is clear that “my needs are your needs and your needs are mine.” In other words, “we are going to find resolution and solution, by putting the other party’s needs before my own.” It’s actually kind of like a religious experience!
Please do not misunderstand me. I am not, for a moment, mocking or dismissing the process. In fact, this is exactly the way I envisaged and hoped the collaborative process was all about. It’s bad enough that we all have to deal with the emotions surrounding breakdown. Yet, could it actually be possible to be an advocate for a client, and at the same time, work for the good of a family as it is being forced to restructure and recreate itself, due to its breakdown?
I hope that as others read this article, they will be challenged to re-examine as I have been, in hoping for a better way to bring resolve in people’s lives. And there will be others who will say that my “vision” for what I think the collaborative process is all about, is not the collaborative process at all, for I am only creating huge conflicts of interest, by serving and meeting the needs of the entire family unit.
Sadly, I am finding myself in cases, where lawyers, who have never been trained in the “collaborative process,” are more “collaborative” in the way and manner in which they practice, then those who have had all the training and have gone to all of the conferences. As it is said, “You can change the ‘form/system’, but you may not necessarily be able to change the people.”
It is my premise – my underlying philosophy, that in order for you to be a “true” collaborative lawyer or practitioner, your lifestyle – your philosophy – the way you conduct your own life – must be collaborative. It is my challenge, both to the reader and me, that if you dare to be a “true collaborative process person,” you need to “walk the talk.”
It never ceases to amaze me how lawyers continue to have one foot planted in the world of litigation and the other in the collaborative world. The explanation, I have been told, countless of times: “When I do collaborative, I’m collaborative. And when I do litigation, I’m a damn good litigator.” I disagree. Our underlying world and life view will permeate and affect the way in which we deal with conflict. Lawyers have been trained (minds moulded in law school) to discern the issues and pinpoint the problems, but we are dreadfully lousy at generating possibilities in resolving those issues.
I am convinced that under the collaborative practice, each lawyer must be responsible for moving his/her client away from artificial bargaining positions, in order to focus on their real needs and interests to seek “win-win” solutions for both partners, and of course – the children.
All for one – on for all? Can this be our mission statement for the collaborative process? Can we, as lawyers and as professionals in the collaborative process, walk that philosophy? Am I wrong in my thinking? Am I out to lunch in even dreaming this way?
Marty Klein is a member of the Peel Halton Collaborative Practice Group. He has been a family law lawyer for over three decades. He is also an accredited mediator and trained in parental coordination. Above all else, is Marty’s relentless commitment to “fairness” and pursuit of “no-court” resolution of conflict.
