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
There are a small number of family law matters that head to court and must be decided by a judge. They often involve parties, one or both of whom, have mental health issues, or drug, alcohol or other addiction issues. In some court cases, the parties are feeling so angry, hurt, afraid or betrayed that they cannot or will not consider any alternative to court. They become entrenched in their positions. Hollywood is rife with examples. Remember Jon and Kate Gosselin? Charlie Sheen and Denise Richards? How about the very public and ugly custody battle between Alec Baldwin and Kim Bassinger over their daughter, Ireland?
Fortunately, that is a very small percentage of family law matters. There are also Hollywood divorces where the parties used Collaborative Family Law to deal with their separation and divorce amicably, collaboratively, and privately. We heard virtually nothing of the details of the divorces of Kobe and Vanessa Bryand or Madonna and Guy Ritchie, or Robin Williams and Marcia Garces Willes. They all used Collaborative Family Law to settle their custody, support and property issues.
In collaborative practice, the separating couple retains a well-trained team of experts – collaborative lawyers, family specialists and financial specialists. The team’s goal is to help the separating couple resolve all matters arising out of their separation with integrity and in a dignified and respectful way, without going to court. Each member of the Collaborative team utilizes his or her own expertise to assist separating couples identify their underlying needs, desires, concerns and fears. We help clients maintain control of their lives and their process. And compared to court, it is less costly, speedier and much more private.
Collaborative practitioners believe in the integrity of the collaborative process. We believe that, first and foremost, families need to reconfigure their family unit in the best interests of their children. Husbands and wives may become ex-husbands and ex-wives, but hopefully not ex-fathers and ex-mothers.
Collaborative practitioners strive to facilitate their clients’ empowerment through the process. We want to offer the best and highest of what each professional has to offer to ensure the best possible result for each of the separating parties, keeping the children’s best interests front and centre.
Dedicated Collaborative Practice professionals undertake ongoing training and continuing education to ensure we do our jobs to the best of our ability. And it is both a sophisticated and varied education. In September, many Collaborative Practice professionals will attend the Ontario Collaborative Law Federation (OCLF) conference in Barrie. We will take workshops on a whole range of subjects: understanding neuroscience to assist clients to obtain a better outcome; engaging the reluctant spouse; integrating advocacy and neutrality to avoid and manage impasse; overcoming impasse; powerful non-defensive communication; using technology to improve inefficiencies in your Collaborative practice team.
In October, the International Academy of Collaborative Professionals (IACP) will hold its 13th Annual Networking and Educational Forum in Chicago. There will be workshops on: the value of a child specialist in negotiating custody and residential arrangements for children; the value of a family business expert where divorce involves a family business; learning to recognize different communication styles; the use of forensic accounting in Collaborative Practice, how to deal with domestic violence in Collaborative Family Law cases; learning to assist clients with balancing legal mandates for support and the need for flexibility tailored to individual family financial circumstances. Seasoned, experienced collaborative lawyers, family specialists and financial specialists will train and mentor newcomers.
No matter whether it is a Collaborative Family Law Lawyer, Collaborative Family Specialist or Collaborative Financial Specialist – we are all learning and sharing practical skills, training, exploring, discussing and debating constantly. As Collaborative Practitioners at the forefront of an exciting and dynamic movement, our goals is to provide the finest expertise to assist people to separate and divorce, and reach resolution with dignity, respect and integrity.
Diane F. Daly
Collaborative Lawyer, Mediator & Arbitrator
165 Cross Avenue, Suite 301
Oakville, ON L6J 0A9
Tel: 905-844-5883
Fax: 905-844-9765
It seems so simple! Divide the property in half, use the guidelines to calculate spousal support, and use the tables to calculate the child support. How difficult could that be?
Unfortunately it is like when you are told that all you have to do to lose weight is to “diet and exercise.” Again, the concept seems simple enough. But as many of us know, you quickly find out there are obstacles that get in the way of your success when you go at it alone.
The same goes for separating couples and their finances. The good news is that they don’t have to go at it alone. In the last decade, a different kind of financial professional has come on to the divorce scene. They are Financial Divorce Specialists (FDS) or Certified Divorce Financial Analysts (CDFA). Applicants for either accreditation must already have a recognized professional designation in accounting or financial planning. Financial professionals that have an affinity to conflict resolution may also choose to be trained as mediators. And financial professionals that would like to be part of a Collaborative Law Practice Group are required to take the same courses on collaborative procedures that are required of the collaborative lawyers. However, what all of these financial professionals have in common is that they are all able to provide clients with a thorough evaluation of the financial ramifications of divorce settlement options. This is of benefit to the process because the client is being asked to make irrevocable financial decisions during an emotional roller coaster ride.
That is why more and more lawyers, call on these financial professionals to assist their clients in arriving at a settlement. The lawyer may not feel comfortable giving out some types of financial advice. And it isn’t always cost effective; or they aren’t always able to take the time to analyze the future financial impact of alternate proposed settlements, or educate a client that has less financial knowledge.
These financial professionals:
1) Can work with the spouse that is less knowledgeable financially, so that they come into the negotiations on equal footing
2) Organize financial data that comes in from both spouses and prepare various financial documents, and
3) Prepare financial scenarios around future cash flows and net worth
Financial issues in a divorce can be a challenge. This is exaggerated by the emotional turmoil the couple is experiencing. They say that for married couples, financial stress will magnify any bumps in the road ten-fold. So for separated couples, it follows that the financial stress, will be that much worse.
When trying to put together the “dreaded” financial statements or budgets for your lawyer or looking at your spouse’s financials, it can trigger feelings of anger, mistrust, fear and inadequacy. This explains why a client may freeze in the middle of this process. The financials then go on the shelf until the client is ready to face those numbers or “emotional triggers” again.
Individuals, couples, lawyers and family professionals that are interested in “collaboration” enlist these financial professionals. Their approach to a legal settlement includes the usual analysis of the “Valuation Date Needs.” However, there is an additional component which is the analyses of future financial needs. We know that financial stress is compounded by fears about your financial future. In a separation, there is the added resentment that the other spouse will be unduly better off. Adding this future component to the analysis can reduce these fears and resentments, which will help bring the settlement to resolution sooner, which in turn will save time and money for all involved.
