Tag Archive: ADR

1. Learning from our Clients – The requirement for a Standard Participation Agreement

   January 9, 2015 6:40 am Comments Off on Learning from our Clients – The requirement for a Standard Participation Agreement

   

   by Marian Gage

   As Collaborative practitioners we receive our most important feedback from the clients who retain us and choose this process.

   I’ve recently had the opportunity to speak with a former Collaborative Practice client about his experience with the process. He was not my client and I will call him “John Smith” although that is not his real name. It was not a good experience. It was certainly not the experience that we, the professionals, anticipate when we promote the process to potential clients. What went wrong? What can we learn from Mr. Smith’s unfortunate experience?

   Mr. Smith started out as all collaborative clients do. He chose a lawyer trained in Collaborative practice. He and his lawyer began communicating with his wife’s lawyer who also advertised herself as a trained Collaborative lawyer. But things quickly took a wrong turn when it came time to sign a Collaborative Participation Agreement.

   “(My lawyer) and I were asked to sign a collaborative agreement that excluded any disqualification clause and demanded mandatory arbitration if we failed to come to an agreement in 6 months.”

   The “disqualification clause” Mr. Smith refers to is the standard provision in the Collaborative Participation

   Agreement that provides that if either party terminates the process and begins litigation both parties must “start from scratch” with new lawyers and the collaborative lawyers participating in the process may not transition to a litigation process with their clients. Among other reasons this is intended to be a disincentive to litigation.

   Those of us familiar with the practice know that this is not only odd but in direct contrast with a process that has the goal of encouraging dialogue and negotiation without the threat of litigation looming in the background.

   Mr. Smith agreed that requiring all clients and lawyers to sign a standard participation agreement would provide clarity about the process up front. In his words, “I was blindsided by the process and would have known more quickly what I was up against if this was the standard practice.”

   Mr. Smith’s lawyer, a well-respected Collaborative family lawyer, attempted to continue negotiations in a “collaborative” manner.

   According to Mr. Smith, “they (his wife and her Collaborative lawyer) were highly aggressive and combative and I was forced to move to a litigation lawyer…my lawyer had continuing difficulties with the other lawyer and we were very close to going to court. I finally signed an unequal agreement to cut my losses.”

   This is not the way we profess to practice, however, there are lawyers who have taken the training that allows them to sell themselves as Collaborative family lawyers. If our clients find themselves in a process with such a lawyer they, like Mr. Smith, will likely have a miserable experience. This tarnishes the reputation of a process we are trying to promote as a better way to resolve family disputes.

   As professionals working in this area we have no control over the lawyer our client’s spouse or former spouse chooses (nor should we) and we have to work with what we are given. If the other lawyer is not prepared to uphold the basic tenets we learn are so important to the process, sometimes the best we can do is explain this to our clients so that they do not walk away thinking that what they experienced was, in fact a Collaborative process.

   For clients seeking out Collaborative family lawyers it is important to ask a potential lawyer how long he or she has practiced in the area, what training they have as a Collaborative practitioner, how many recent cases he or she has done where the parties signed a Collaborative Participation Agreement and what the practice means to him or her.

   Collaborative practitioners are at odds as to how much regulation and oversight this practice area requires. I will not comment on that in this article. Mr. Smith’s case highlights the need for Collaborative lawyers to insist on a standard Participation Agreement that sets out a true Collaborative process.

   By Marian Gage, B.J., LL.B, AccFM
   Berry Gage
   Family Law & Mediation
   165 Cross Avenue, Site. 301
   Oakville, ON
   L6J 0A9
   Tel: 905-338-7941
   Www.bgfamilylaw.ca

2. Dealing with Self-Represented Litigant: The Benefits of Mediation and ADR

   August 14, 2013 1:24 pm Leave a Comment

   By Fareen L. Jamal and Jesse Lamont

   Occasionally, clients are faced with situations where their spouse opts to represent her or himself.  This can make an already difficult situation worse.

   A self-represented party does not have the benefit of objectivity, and emotion, stress, and legal inexperience often impact their conduct. This can make for a more legal experience.  When a self-represented litigant appears ignorant of the law, counsel for the represented party will need to spend increased time and provide repetitive explanations to ensure that the self-represented party understands their obligations and that there are no misunderstandings.¹   This can be very frustrating for everyone involved, particularly because it often leads to protracted negotiations.

   To be fair, given that the cost of a three-day trial in Ontario is estimated at approximately $60,000, which surpasses the average per annum income of the normal Canadian family²,  it is not surprising that litigants are increasingly forced to represent themselves in court. Alternatively, given the increased access to free courtroom services and the proliferation of legal information laced into television shows, litigants with heavy financial burdens are often convinced that they are well equipped to represent themselves.  With celebrities such as Courtney Cox and David Arquette making self-representation look easy³,  some parties facing daunting legal costs may opt to represent themselves.

   However, a client would never consider fixing their own root canal or performing their own open heart surgery, and particularly given the nature and complexity of family law, I could not recommend that a party represent themselves.

   Mediation, collaborative family law, and other alternative dispute resolution models offer less expensive alternatives to a court trial and may be more palatable for your self-represented spouse. Given that self-representation often results in delays in divorce proceedings, which are amplified by the emotional undercurrents related to the breakdown of a relationship, mediation, ADR, and collaborative law practices offer a financially viable – and often more satisfying – surrogate to a trial.

   If you find yourself in the position of dealing with an estranged spouse who opts to self-represent, consider suggesting that you resolve the dispute through mediation or that you both retain collaborative family lawyers.  The short term and long term benefits are undeniable.  Your funds are better spent on yourself and your children than on increased court costs.

   __________________________________

    ¹ Fareen Jamal, “Tactical Tools for Family Advocacy,” Ontario Bar Association Continuing Professional Development, October 11, 2012.

    ² The Honourable Warren K. Winkler Chief Justice of Ontario, “Access to Justice, Mediation: Panacea or Pariah?” http://www.ontariocourts.ca/coa/en/ps/speeches/access.htm on July 6, 2013.

    ³ “Courtney Cox and David Arquette Finalize Divorce,” Ace Showbiz, <http://www.aceshowbiz.com/news/view/00060754.html>

   Fareen Jamal
   Associate Lawyer

   Bales Beall LLP
   2501-1 Adelaide Street East
   Toronto, ON
   M5C 2V9

   Tel: 416-203-4538
   Fax: 416-203-8592
   fjamal@balesbeall.com

   Jessie Lamont
   Summer Law Student

   Bales Beall LLP
   2501-1 Adelaide Street East
   Toronto, ON
   M5C 2V9

   Tel: 416-203-4017
   Fax: 416-203-8592

   jlamont@balesbeall.com

    

    

    

3. Moving On…

   February 19, 2013 2:57 pm Leave a Comment

   

   By Marie Nickle

   We have to accept, as Collaborative Professionals, that the Collaborative process is not a panacea.  There are many individuals who simply just want to remain in conflict and all the helping to communicate and constructive problem solving we, as conflict resolution experts, can muster will not work.  There is one simple condition needed to assess whether the Collaborative Process is fitting for the case and that is whether the parties are ready to move on from the conflict.  Simple, in that this is the one condition needed, yet not so simple to ascertain.  Of course, most will say they are ready to move on, but behaviour will dictate otherwise.  Absent influence, intimidation, and so on, a party’s readiness to be objectively reasonable is the indicator as to whether that party is ready to move on from the conflict. As lawyers advising our clients, it is as equally important to direct our clients correctly on process, as on the substantive legal issues. If the Collaborative process is the right process, then the client needs to know.  However, the client also needs to know if it is not.  Regardless, due to the last twenty years of sweeping ADR (Alternative Dispute Resolution) trends, lawyers need to be apprised of what is out there so they are in a position to properly advise and be responsive to their clients’ needs.  This has resulted with more up-front work needed by the lawyer with the client.  This simply forms part of the new way to practice law, and in particular, Family Law.  If done well, the lawyer will understand whether the client is truly ready to move on…or not.

   Marie Nickle is a lawyer and mediator.  She also trains lawyers and other professionals in the Collaborative Process of Dispute Resolution.

   Marie B. NickleThe Galleria 204-1715 Lakeshore Rd. West Mississauga, Ontario L5J 1J6

   Profession: Family Law Lawyer, Mediator, Collaborative Trainer Tel: 905-823-1232 Fax: 905-823-7104 mariebnickle@bellnet.ca www.mbnlegalresolutions.com

4. Involving Collaborative Lawyers in the Mediation Process

   December 14, 2012 12:20 pm Leave a Comment

   

   by Marie Nickle LL.B LL.M AccFm

   One of the problems with the mediation process is that the independent legal advice lawyers are not involved in the thought processes or the discussions taking place in the mediation sessions.  The option generating that takes place in mediation involves in-depth thought and discussions of the practicalities of any given arrangement, being the things that make sense in the day-to-day lives of the parties.  Nor have the lawyers been involved in the discussions that take place concerning the parties’ concerns and values and how these expressed concerns and values play a considerable part in arriving at agreements.  The mediation process concentrates on many things for the parties, including legal obligations and entitlements.  However, the ILA (Independent Legal Advice) lawyers are advising only on legal obligations and entitlements after completion of the mediation and often, agreements reached are scuttled, leaving parties frustrated and angry at having paid for a process that didn’t deliver.  The result is that mediation is brought into question as a viable alternative dispute mechanism.  As well, the reputation of the mediator is not well served.

   As an example, I was involved in a case, giving ILA to a wife on a comprehensive mediated agreement.  The mediation had taken place 3 years earlier by a very well known and respected mediator.  The parties, although advised by the mediator to obtain ILA, did not.  Instead they procrastinated and lived within the spirit of the mediation report for 3 years, at which time circumstances dictated the need to conclude and turn the terms into a legally binding document.  In my conversations with the ILA lawyer for the husband, he(the lawyer) proceeded to malign the mediator, offering comments to the effect that the mediator should face consequences for assisting the parties with what he viewed to be an imbalanced agreement in my client’s favour.  He (the lawyer) was not prepared to “allow” his client to sign the agreement.  The result was that the negotiations had to start afresh between us on behalf of the parties.  Both parties felt they had wasted their money in the mediation process and neither were prepared to recommend it.

   A way to resolve this is to have the parties represented by Collaboratively trained legal counsel at the outset of the mediation process.  The lawyers do not necessarily have to be involved in every meeting, although this would be ideal.  At a minimum, they would be available to provide their respective clients with legal advice and input along the way, ensuring no surprises at the end of the process.

   The cost is still less than a court process, which is the only meaningful comparison when discussing the cost of any resolution process.

   Marie B. NickleThe Galleria 204-1715 Lakeshore Rd. West Mississauga, Ontario L5J 1J6

   Profession: Family Law Lawyer, Mediator, Collaborative Trainer Tel: 905-823-1232 Fax: 905-823-7104 mariebnickle@bellnet.ca www.mbnlegalresolutions.com

5. BRIDGING THE GAP: Have Lawyers Priced Themselves Out of the Market?

   July 11, 2012 12:10 pm Leave a Comment

   

   Marie Nickle

   By Marie Nickle

   Most family law court matters settle before trial and many of those matters should not have been brought to court in the first place. Court is expensive for litigants if lawyers are involved and more and more disputants are representing themselves. Unfortunately, lawyers have priced themselves out of the market. Parties simply cannot see the value that lawyers bring to them, given the high cost. We are a service industry and yet we fail to bring satisfactory service to the public, to the extent that parties choose to risk going at it alone before the Judge rather than pay the high price of representation. Some parties have never retained a lawyer due to cost, others have and are gravely disappointed at what they perceive to be lack of service – not explaining the situation properly, not returning phone calls, acting without instructions, and, of course, charging too much and not delivering. This is why, together with mediation becoming a quicker and cheaper way to resolution, lawyers need to reflect on the service, or lack thereof, they actually provide to their clients. Remember, you don’t have to be a lawyer to mediate an agreement between parties, even though mediation is a legal process. Mediation is largely an unregulated field, probably because parties are supposed to obtain independent legal advice from lawyers. Problems arise, however, if mediators underplay the importance of the independent legal advice. After all, there isn’t a law that says you have to hire a lawyer. I suggest that the solution to the problem lies with the lawyer giving better service to the client and adopting a problem solving approach from the outset. Negotiation is such a large part of what we do as lawyers in family law, whether in court or out, yet so many lawyers lack good interest-based negotiation skills. Acceptable negotiation tactics are along the lines of my way or the highway and this rarely works. It only usually serves to make the other side angry or angrier, pushing the likelihood of settlement further into the future. The client becomes unhappy because of the ongoing cost and complains about the legal system and the lawyer to anyone who will lend an ear. But what if the lawyer were to negotiate meaningfully for the client? There are a lot of unrepresented parties in court who could benefit from such a service. This would entail something short of full blown representation requiring full retainer. It would be a limited retainer arrangement. More affordable for the client and less taxing on the lawyer than full blown court record representation. Of course, the retainer agreement must be precise in conveying the service. Lawyers are expensive, but court is the most expensive process. It is not enough to say that alternate process options are expensive. The relevant cost of the alternate to a court process is the correct cost examination. This is all presuming lawyers are involved and we want lawyers involved for lots of good reasons – to protect the public being one very good reason. But the way to get the public interested is for lawyers to start providing a service the public wants, and needs. Average people just can’t spend upwards of $40,000 each on lawyers heading toward trial in a seemingly never ending court process. The public will look for other ways. They will go to mediators and they will represent themselves. Lets work on ways to bridge the gap between lawyers providing a good helpful service, and all those unrepresented parties.

   Marie Nickle is a lawyer, mediator, arbitrator and trainer. She has a Masters Degree in Alternate Dispute Resolution from Osgoode Hall Law School. She trains lawyers in the Collaborative Law Process. Her office is on Lakshore Road in South Mississauga.