Category Archive: participation agreement

1. Whistle While You Work

   September 22, 2017 2:30 pm Comments Off on Whistle While You Work

   
   By Noel N. da Silva

   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.

   Email: noel@sdslawfirm.com
   Telephone: 905-457-1660 ext 229

   Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

2. Lessons for Collaborative Clients and Practitioners

   February 15, 2012 9:55 am Leave a Comment

   
   by Diane Daly
   In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

   First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

   Second, it illustrates the importance of choosing your collaborative practitioners wisely.

   Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

   The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

   It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

   Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

   The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

   1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

   2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

   3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

   4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

   5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

   Diane F. Daly
   Collaborative Lawyer, Mediator & Arbitrator

3. Enlightened Parents Choose Collaborative Family Law

   December 19, 2011 1:16 pm Leave a Comment

   by Fareen Jamal

   Parents who would never harm a hair on their child’s head, often don’t realize that the bickering, squabbling and high-conflict that usually accompanies a court proceeding when they seek a divorce, is the psychological equivalent of taking a pail of scalding water and pouring it down their child’s back.

   Research has shown that children of high-level conflict families carry the marks and scars of the conflict.  It is not the separation of the parents, but rather the way the parents interact that creates these problems.

   The nature of family law when encountering the adversarial court system may, in fact, encourage conflict.  Spouses verbally share the details of their most intimate lives, selectively revealed in confidential conversations with their partners whom they trust and with whom they share a close bond.   Court pleadings reflect a party’s own particular view of its position and may reveal irrelevant or prejudicial information.

   Family law litigants feel vulnerable and violated when intimate details of their lives are exposed.  This may be further exacerbated if the individual does not want the separation or termination of the marriage.  The allegations may include personal accounts, drafted by lawyers in language that emphasize intimate facts to bolster the claims of their clients (and sometimes as gratifying private spite or promoting public scandal).  Court documents lend an air of credibility to the accusations, whether or not they possess any credence.

   Courts expose the private lives of family litigants.  Courts demand a significant level of personal detail from family litigants, such as parties’ date of birth, home addresses, credit card numbers, bank account numbers, and children’s access schedules.  The publicity of litigated issues and court decisions may in fact be detrimental to a child’s best interests, and invade a child’s current and future right to privacy.

   Not to mention the potential of identity theft from family court files.  The personally identifying information in family court files provides a treasure trove of information for an identity thief. This information is publicly accessible to any party by attending the records department at any court house.

   No doubt these are some of the reasons why actor/comedian Robin Williams, who separated from his wife of 19 years last New Year’s Eve has chosen to get a Collaborative Divorce.  One of the clauses in the agreement read:

   “We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well being of our families.  We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably.”

   The agreement was to be child focused at all times.

   In Collaborative Family Law, both parties (and their specially trained family law lawyers) negotiate the issues arising from their separation in private, outside of the courtroom, with a written agreement not to litigate.  Should the negotiations not work out and the couple decide to litigate, the lawyers must resign from the case.  This motivates everybody to work out a settlement that everybody is satisfied with.  The process often employs neutral professionals, such as a financial advisor/and or child specialist, to offer their expertise.  The emphasis is on full disclosure, looking out for the children’s best interests, and reaching win-win solutions, rather than on competing and trying to “defeat” the other party.

   This is not to say that all family law matters belong in the Collaborative process.  I consider the courtroom much like a hospital’s emergency room ~ some cases do in fact belong there, however most cases are better served by other methods.

   With more than one-third of those who enter into a formal or legal first marriage divorcing before their 30th wedding anniversary (and the probability of divorce somewhat higher for a remarriage) and with an unknown number of unmarried cohabiting litigants also turning to the courts upon the dissolution of their unions, a significant proportion of the population are affected.  Most of these would be better served outside a courtroom.

   I applaud Mr. Williams’ approach, for choosing not to engage in vindictive behaviour, public humiliation, scandal or a bitter court battle.  I applaud his choice of Collaborative Family Law.  His children, although no longer young at 19 and 16 years of age, will no doubt also appreciate the way their parents have chosen to deal with their separation.

   Fareen Jamal

   Bales Beall LLP, 2501-1 Adelaide Street East, Toronto, ON M5C 2V9, (416)203-4538 fjamal@balesbeall.com

4. Mudslinging and Collaborative Law

   November 7, 2011 11:44 am Leave a Comment

   Over 30 years ago, I handled my first hotly contentious matrimonial file.  After listening to my client and spending hours typing an affidavit outlining all the horrific things her estranged husband had done to her and the children, I couldn’t help but empathize with her plight.  After serving the other side with this material, we received an epistle from the estranged husband that alleged equally outlandish and egregious behaviour by my client. As any rational individual would, I concluded that one, if not both, were pathological liars since how could both have lived in the same household and have representations of reality that were so divergent.  The litigious environment encouraged a further volley of attacks and counter attacks that ensued to the point where one wondered if either should be entrusted in caring for their children.  Yet a judge had to decide what was best for those children.  The real tragedy is that those parents, consciously would convey to the children their total enmity for the person that they had chosen to be the parent of their children.

   Times have not changed much if you were to walk into a family law courtroom today.  You still see people who were once madly in love with one another, recounting history through the lens of hurt and anger portraying their spouse as an abhorrent individual.

   Societies used to find all kinds of behaviours acceptable that we would no longer tolerate; smoking in cars with the children a captive audience, corporal punishment in the home and school….Yet, contested family law cases still result in mudslinging between parents and hiring the gunslinger advocate to attempt to annihilate the other parent.

   The wisdom that comes with witnessing the train wrecks of thousands of marital breakdowns, as well as seeing the damage to future generations, led me long ago to conclude that in the vast majority of cases where a marriage breaks down there is rarely a hero and a villain.  Usually, there are two people who had the best of intentions when they started out, but along the way things broke down and they are separating.  The parties I referred to were not “bad people” but the adversarial process exacerbated an already highly charged emotional situation which led to allegations and counter allegations that made them seem like terrible people.

   The collaborative process however, by contrast, provides an opportunity for separating parties to resolve their differences, with the assistance of experience professionals, in a forum that is conducive to attacking the problems and not the other person.  The net result is that the solution is usually much faster and far less damaging to the parties and the children.

   While I was always settlement oriented, I was led to the collaborative process about ten years ago because I found that in most cases, it provides a forum that is conducive to relieving the emotion and accentuating the focus of productive discussions that lead to a solution that is int he best interests of the family as a whole.

   Couples going through a separation are usually in a highly emotionally vulnerable state and can be more easily influenced than at other times of their lives.  Not all cases can or should be channeled into the collaborative stream but for the vast majority it is a far less damaging and more productive environment than the “mudslinging environment” of the adversarial world.

   Richard T. Bennett LL.B LL.M