Tag Archive: collaboration

1. Collaborative Family Law Saves Resources in the Future

   July 10, 2012 10:57 am Leave a Comment

   By Christine A. Torry

   Like many of my colleagues, I have learned some fundamental truths working in the field of family law for almost 30 years. Those lessons are what led many senior practitioners to endorse the use of collaborative practice for the resolution of family disputes.

   One of the most basic truths is that despite the wish that a client may have to never deal with an “ex” again, with few exceptions, an ongoing relationship will continue for many years, usually as parents or grandparents, or for financial support.

   The cases that have been resolved through the traditional court process have a high rate of return to the court, for future problems. Family separations involve ongoing rights and responsibilities whether dealing with the parenting and time share of children, child support or spousal support. And there are always changes in the future that need to be addressed. Children get older and want to change residence, perhaps live with the other parent. There are activities to decide upon, and whether they should be competitive level or recreational. Children go to university and the cost sharing has to be decided. One parent may believe a child should contribute to post-secondary education, and the other may want the child to experience Europe for the summer. A payor loses a job, or retires, and needs to have support changed. A recipient remarries. If the parties have not learned skills to help them negotiate and reach agreement on future changes, they revert to the first method used, such as court. They can’t reach agreements so they go to someone, like a judge, to make the decision for them. The cost is significant in terms of time and financial resources.

   As a family law lawyer, there are many clients who I represented in a court process, that come back to the expense of litigation when they need to change something in the original order.

   One client separated in 2001 and obtained a court order resolving custody, access, child support and division or property over a year later. They had 2 children; a boy born in 1988 and a girl born in 1993. In 2007, the matter returned to court as the son was in college living away from home, and the costs had to be sorted out. A court proceeding was needed as the parties could not reach an agreement directly. That took about a year of court time. The client returned to my office again this week, as the daughter is starting college in the fall and the cost sharing needs to be agreed to. It is likely that a further court action will be required to sort that out as well.

   In another situation, parties were married for 10 years and were involved in court litigation for 8 years to reach an agreement on all of their financial issues. Two years later the eldest child began University away from home. Another court proceeding is needed and takes the full four years of the child’s attendance at University to get resolved. They also have a son, who is in Grade 11. Likely another court proceeding will be required in 2 years when he starts university.

   A third situation was in litigation for 5 years, and was back in court on at least four occasions over the next 10 years to address issues, resulting from a payor’s lost job, and a child’s post-secondary school program extending beyond one degree.

   I have represented clients in collaborative proceedings for almost 10 years. Interestingly, not one has come to see me to deal with a change. They somehow manage to do it themselves. They recognize that they need to work together in the future, and invest in creating a working relationship through the use of the collaborative process, to help them solve disputes as they arise. More importantly they don’t see the solution from a win or lose perspective. They are able to work on solutions that address everyone’s interests, particularly the interests of their children.

   From my perspective, considering the anecdotal evidence, there are strong reasons why parties should choose a collaborative approach to resolving their separation. It is time and money well invested in their future.

   Christine A. Torry
   Willis & Torry, Barristers & Solicitors
   35 Queen Street South
   Mississauga, ON L5M 1K2
   Tel: 905-819-2970
   Fax: 905-819-8379

2. Ms. Steele and Mr. Grey: Suitable for mediation/collaborative practice model?

   June 21, 2012 11:26 am Leave a Comment

   

   By Karen Thompson-Harry, B.A.(Hons), JD

   Is there anyone out there who has not heard of the bestseller, “Fifty Shades of Grey”? The following summary is from Wikipedia:

   “Fifty Shades of Grey is a New York Times #1 best-selling erotic fiction paperback and e-book by British author E.L. James. Set largely in Seattle, it is the first instalment in a trilogy that traces the deepening relationship between college graduate, Anastasia Steele, and a young business magnate, Christian Grey. It is notable for its explicitly erotic scenes featuring elements of BDSM.

   The second and third volumes are titled Fifty Shades Darker and Fifty Shades Freed, respectively. Fifty Shades of Grey has topped best-seller lists in the U.S., the U.K., and around the world. The series has sold around ten million copies worldwide, with book rights having been sold in 37 countries.

   The plot traces the relationship between recent college graduate, Anastasia Steele, and manipulative billionaire, Christian Grey. Steele is required by Grey to sign a contract allowing him complete control over her life as well as a non-disclosure agreement, something that he’s required from all of his previous submissives. Upon learning that she is a virgin, Grey agrees to have sex with her in order to prepare her for later encounters, fully intending that the contract would be signed. As she gets to know him, she learns that his sexual tastes involve bondage, domination, and sadism, and that childhood abuse has left him a deeply damaged individual. In order to be his partner, she agrees to experiment with BDSM, but struggles to reconcile who she is (a virgin who has never had a boyfriend) with whom Christian wants her to be, his submissive and a to-do-with-as-he-pleases partner in his “Red Room of Pain.”

   There were times I was reading the first book that I had some “uncomfortable” moments. Some examples: Ms. Steele: “His tone is quiet and deadly. Oh no. I squirm.” “will he punish me?” Mr. Grey to Ms. Steele: “Because I’m going to spank and then … you.” Ms. Steele to Mr. Grey: “Why?” I whimper softly… “Holy Shit…Please don’t hit me” I whisper, pleading. “I don’t want you to spank me, not here, not now. Please don’t.” Mr. Grey to Ms. Steele: “This is mine” he whispers aggressively “All mine. Do you understand?” Ms. Steele to Mr. Grey: “Because I’m too frightened to show you any affection in case you flinch or tell me off or worse – beat me.” Ms. Steele finally concludes: “but I realize that’s just the way he is. He likes control over everything, including me.”

   I think that gives you a sampling of some of my concerns with the first book in the series. Let’s fast forward a few years, and assume that Ms. Steele and Mr. Grey have been cohabiting as spouses for three years, and then they separate. They are interested in mediation and/or collaborative law. Would they be suitable candidates? Are there power imbalances in their relationship? Are the power imbalances so significant that a mediator would not be able to “even the playing field”, but what about the collaborative lawyers? Would a “team” model be a more appropriate choice?

   I reviewed my screening “protocols” for power imbalance and domestic violence (adopted from the Model Screening Protocol from the office of Dispute Resolution, State Court Administrative Office, Michigan Supreme Court). Mediation and the collaborative process should only proceed if the lawyer or mediator believes that they can provide a safe environment for the process that will support the parties in negotiating an agreement that is fair to both of them, and is non-coercive.

   One of the screening headlines I use is “Control, coercion, intimidation, fear.” Are there “control” issues between Ms. Steele and Mr. Grey? Who is the Dominant, and who is the Submissive? I hope you did not laugh reading those questions… control can be fluid, and the power imbalance can shift back and forth in some situations. Mr. Grey, in this case, was clearly a “control freak.” Because of how the couples’ relationship started, Ms. Steele continued to feel intimidated by Mr. Grey, and on occasion, fearful of him. It would be important to update the client’s stories over the past three years to have the full picture.

   Has either of them even prevented the other from having contact with family or friends? I recall Mr. Grey’s “refusal” to “allow” Ms. Steele go away for a work weekend with her boss. I also recall Mr. Grey’s initial “refusal” to “allow” Ms. Steele to meet with her friend Josee (when Ms. Steele advised him she was not asking for his “permission”, there were “parameters” on the visit.)

   What about asking Ms. Steele: “Do you ever become afraid for yourself based on a look from Mr. Grey?” She would have to say yes.

   What about: “Has Mr. Grey ever pushed, shoved, hit, kicked, slapped, choked your or pulled your hair?” Again, she would have to say yes (hopefully she would not provide too much detail…)

   Mr. Grey also liked to control what Ms. Steele wore, having her wardrobe bought for her. Another element of control. I have to admit, I don’t have the question: “does your spouse tell you what to wear” or “does your spouse purchase your wardrobe without your input?” on my screening checklist.

   “Do either of you have a history of mental illness or emotional problems?” Mr. Grey would have to answer yes.

   “Have either of you ever attempted or considered hurting yourself or others?” Mr. Grey would answer that he enjoys causing pain to others. He identifies himself as a “sadist.”

   “Has your partner ever forced yourself to do something that made you uncomfortable?” Absolutely, in particular in the beginning…

   And, there was a time where Mr. Grey enjoyed causing Ms. Steele pain.

   There is also a significant financial imbalance between them. Can that be balanced out in either a mediation or collaborative law model?

   There is a point in the second book where Mr. Grey does not want to lose” Ms. Steele from his life. He is willing to do anything to “keep” her. Many of us have had clients who have felt like this; those who are so hopeful for reconciliation they will agree to anything in hopes of reconciliation. Would the lawyer/team’s approach be able to address this need?

   I would not accept Ms. Steele and Mr. Grey for mediation, unless both were represented by lawyers and they agreed to involve other professionals in the process, as needed.

   Depending on the skills and experience of the professionals, they may be suitable for the collaborative team model, with a therapist and financial planner’s presence. They are a prime example though of why all lawyers considering a collaborative retainer should screen their clients. Much of this information, with the exception of their significant financial disparity, would not be available without screening. Both clients would present very well. Highly educated, successful couple. You don’t know, unless you ask.

   Karen Thompson-Harry, B.A.(Hons), JD.
   Barrister and Solicitor, Mediator, Arbitrator, Collaborative Family Lawyer
   1 Wellington Rd. 124
   Erin, Ontario N0B 1T0
   Telephone: (519) 833 0040
   Fax:  (519) 833 0041
   Toll Free: 1 866 969 0040