Tag Archive: collaborative

1. Outside the Box: Using the Collaborative Process for Collaborative Agreements and Marriage Contracts

   May 15, 2014 2:22 pm Comments Off on Outside the Box: Using the Collaborative Process for Collaborative Agreements and Marriage Contracts

   

   By Marian Gage

   When a potential client comes to me for the first time, already-drafted marriage contract in hand, asking me to read it over and sign the certificate of Independent Legal Advice (and quickly because the wedding is this Friday!) I find myself looking for the nearest exit. There are no fees that can compensate me for the potential liability and I must politely decline.

   Even when there is ample time and a not-yet drafted agreement and both parties are ready and willing to make full financial disclosure I must admit marriage contracts and cohabitation agreements make me a little apprehensive. There is, whether it is real or perceived, a concern that these agreements are vulnerable to litigation to set them aside in the future if a couple separates. Even if a court upholds the agreement there is the risk that the lawyer will be named in the lawsuit. There is also the risk (inevitability?) that this happy couple, optimistically planning their lives together, must now be exposed to the unpleasantness involved in negotiating a domestic contract.

   The negotiation of a marriage contract or a cohabitation agreement must be handled with greater care, taking into account that we are working with an “intact” couple, often at the beginning of their lives together as spouses. Nobody wants to rock the boat…but we have to have some difficult conversations if the negotiations are to be meaningful.

   The collaborative process is well-suited to this type of negotiation for several reasons…
   • Both spouses and their lawyers can work together as a team to address each person’s concerns and work through potential problems.
   • Collaboratively trained lawyers and, where necessary, a neutral facilitator can work with the parties to help them talk with each other about their financial goals and interests in a way that will not appear to be adversarial.
   • The parties can exchange complete and reliable financial disclosure by discussing what is required together with their lawyers (and why it is required to make the agreement reliable) and if necessary, parties can work with a neutral financial professional.
   • Where estate planning is an issue we can include the estates lawyer as part of the team as opposed to sending the couple off to that lawyer at the end of the process to prepare wills “around” a marriage contract.

   I would think that an agreement negotiated through the collaborative process is inherently less vulnerable to a claim to set it aside in the future as it is much less likely the agreement will have been negotiated under duress, or without appropriate disclosure, or with potential for a substantially unbalanced result.

   Given the high rate of satisfaction clients have in using the collaborative process to resolve the issues that come up on separation I have been spending time working with my Collaborative Participation Agreement to tailor it a process for negotiating marriage contracts and cohabitation agreements.

   Marian G. Gage O’Connor MacLeod Hanna LLP  700 Kerr Street Oakville, ON L6K 3W5

   Profession: Family Law Lawyer  Tel: 905.842.8030 x3312 Fax: 905.842.2460  gage@omh.ca www.omh.ca

2. Family Law Disclosure

   March 10, 2014 12:30 pm Leave a Comment

   

   By Paul Steckley

   I’m reminded of a situation that really brings home the importance of being honest and frank in your disclosure in a family law matter, whether it in a  litigation setting or collaborative, which I’d like to share.  It involves a divorcing couple, where both the husband and wife felt they were each owed an equalization payment from the other.  The main area of disagreement between them was that the wife had been operating a business prior to separation that she claimed had stopped operating and was essentially worthless at the time that the parties separated.  She even went so far as to hire a certified business valuator who completed a report indicating that the business was essentially worthless as it was not operating and had no assets on the valuation date.  The husband knew that he business had stopped operating but disagreed that the business was worthless as he knew that some of the business’s assets were unaccounted for.  The matter proceeded to trial, where it was revealed that the wife had in fact been less than truthful.  She was forced to admit that not only had she hidden some assets from the business but that at least one of the assets was fairly valuable and had been sold recently.  She had even gone so far as to hide this information from her own lawyer.

    

   This shocking revelation basically lost her the trial, as the judge found that she lacked credibility and that her evidence, including the evidence of the business valuator, had to be ignored completely.  This even included her evidence that proceeds of the sale of the asset were subject to taxation and the payment of legitimate debts.  Because of her lack of credibility, the judge ignored everything expect for the gross value of the sale.  The end result was that the wife had to make an equalization payment to the husband, a significant swing from the result she had attempted to manufacture, and probably more than what would have happened had she been honest in the first place.  Had the true value of these assets been disclosed earlier, the business valuator might have been able to minimize the effect by factoring in taxes and various costs associated with the assets, reducing their value and perhaps eliminating the need for the equalization payment.  It is easy to see why she was lured to the idea of hiding assets, thinking that it would give her an advantage in the litigation.  However, in this case the lack of full and frank disclosure did not pay the dividends she was expecting.  And not including her lawyer in on this subterfuge meant that she denied herself the benefit of guidance from her lawyer that may have made her realize that her attempts would ultimately backfire.  As well, a costly trial was inevitable since the husband knew she was being deceitful.  It is always best to bring forth all the information you have, and provide it to your spouse, your lawyer, and your financial professional so that it can be dealt with.  In the end it will be less costly and will likely lead to a settlement much earlier in the process.

   Paul Steckley, B.A. (Hons), LL.B. 102-2680 Matheson Boulevard East Mississauga, ON, L4W 0A5	Profession: Family Law Lawyer Tel: 905-487-5467 Fax: 905-487-5465 paul@paulsteckley.com www.paulsteckley.com

3. 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

    

    

    

4. Divorce ~ The Importance of Disclosure

   June 3, 2013 12:52 pm Leave a Comment

   

   By Paul K. Steckley

   The Collaborative Process is unique in that fostering a strong working relationship between the separating couple is crucial to a successful resolution. The more traditional forms for resolution (litigation, negotiations, arbitration, and sometimes even mediation) more often than not involve people that dislike, if not detest, each other and can’t work together effectively (else they would have chosen a different resolution process). People that choose the Collaborative Process at least have a desire to attempt to set aside their differences and work towards a common goal, and they specifically choose to do so in a way that is respectful and, hopefully, cordial. The Process requires spouses to work closely together, on a fairly frequent basis, and this requires a relationship that is built on mutual respect.

   The key to creating an atmosphere that will enhance such a relationship is building trust between the spouses: trust that may have become eroded during the separation. One way to build such trust is by ensuring that each party comes to the table with all of their cards laid out in plain sight. If someone suspects that their former partner is holding something back, they naturally become distrustful and are unlikely to actively listen to the needs of the other person, which is a crucial step in the Collaborative Process. If one spouse suspects that the other is hiding assets, for instance, they are more likely to be reluctant to trust that spouse’s claims that the children are of utmost importance to them, for example. Distrust can seep into other areas of discussion and derail the entire Process.

   As such, it is vitally important for the spouses to provide full disclosure of all relevant information during the Process. This information includes full financial disclosure and all other information that is relevant and important to understanding the issues at hand and resolving them. Once their other spouse sees that nothing is being hid, their natural defensive posture softens and then they can then truly embrace all the aspects of the Process. Full disclosure fosters trust which creates a stronger working relationship which leads to a better Process that has a higher chance of being successful.

   In addition, full disclosure can ensure that the final Separation Agreement, in the document that the spouses and their professionals have worked so hard to complete, stands the test of time. Spouses that have trusted each other throughout the process are more likely to stand by their Agreement, because they won’t have in the back of their minds that nagging suspicion that they were hoodwinked in some manner by their former partner that leads them to question the validity of the Agreement. And, if, for whatever reason, one does decide to question the Agreement, it has a greater chance of being found by a Court to be enforceable if full disclosure was made throughout the process. It is truly a wasteful exercise to engage professionals and spend a great deal of time and money to create a Separation Agreement that is ultimately set aside simply because full disclosure wasn’t made during the collaborative Process. Separation is a difficult emotional journey for anyone to undertake, and while the Collaborative Process can soften that journey somewhat, it’s not something that anyone wishes to relive years from now. Full disclosure can make the process work efficiently and effectively now, and also provide comfort and stability for the future.

   Paul Steckley, B.A. (Hons), LL.B.
   102-2680 Matheson Boulevard East
   Mississauga, ON, L4W 0A5

   Profession: Family Law Lawyer
   Tel: 905-487-5467
   Fax: 905-487-5465
   paul@paulsteckley.com
   www.paulsteckley.com

5. 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

6. Kevin O’Leary’s Cold Hard Truth on Collaborative Divorces

   January 29, 2013 4:01 pm Leave a Comment

   

   By Meredith Cox

   Kevin O’Leary is everywhere.  On the internet, on the radio, on bookshelves and on television (Dragon’s Den, Shark Tank and The Lang & O’Leary Exchange). In his new book, Cold Hard Truth on Men, Women & Money, Canada’s financial guru shares his opinions on just about everything from the use of Botox and fillers to “How to Spot a Gold Digger”.  He says we should repair our finances and not our faces.  Good to know.  He insists rich people need a prenup because good looking gold diggers are willing to date a person who is a lot older, uglier and wealthier than they are for profit.  No shock there!  We can all silently come up with tons of celebrity and real life examples.  Hmmm…

   The book’s brutally honest dissection of our relationships with each other and money makes a lot of sense.  As I read through the chapters relating to each stage of life, I reflected on where I might have gone wayward. I thought hard about the perils of “Ghost Money” (lattes, lunches and glossy magazines).  I inwardly promised to do better and congratulated myself on the smart decisions I had managed to implement so far.  From now on the balance in my “Money Karma” account will be on a perpetual upswing.

   As a Family Lawyer, I was pleased to learn Mr. O’Leary also has strong views on the merits of Collaborative Divorce.  Unlike the traditional litigation model, collaboratively trained lawyers are not adversaries.  They will work with you and the other lawyer to obtain the best outcome possible for your family.  In his analysis of how to fix or prevent various money mistakes available to us as we go through life, he gives a concise prescription for avoiding the twin legacies of agony and financial bleeding that can go along with divorce court.  I have broken it down into two categories:  no cost self-help and outside help you have to pay for.

   SELF-HELP AND YOUR CHILDREN

   1.  Be compassionate and respectful to your spouse.  Don’t let rage and jealousy cloud your judgment.  You might end up spending more money.

   2.  Do your own research on the law and the process that will work best for you.

   3.  Get and organize all your financial information.  Make your own copies to save money.

   4.  Money you have set aside as RESP’s for the children should remain in place for their benefit.

   5. Put your children’s needs first.

   OUTSIDE HELP

   1.  Don’t try to divide your assets without getting some professional help.  It can be complicated.  Property settlements are permanent.

   2.  Get lots of counselling from a mental health professional.  Stay in counselling.

   3.  Find a collaborative lawyer.  Consider mediation.  Avoid going to court.

   Meredith Cox Sweatman Law Firm 11-1400 Cornwall Road Oakville, ON L6J 7W5

   Profession: Family Law Lawyer  Tel: 905-337-3307 Fax: 905-337-3309  meredith@sweatmanlaw.com  www.sweatmanlaw.com

7. 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

8. Lofty Collaborative Goals

   August 21, 2012 2:28 pm Leave a Comment

   

   By Diane F. Daly

   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

    

    

    

    

    

    

    

9. Client Satisfaction and the Collaborative Law Experience

   June 25, 2012 3:12 pm Leave a Comment

   

   Jessie Lamont & Fareen Jamal

   By Fareen L. Jamal and Jessie Lamont

   Lawyers report the practise of family law litigation to be particularly toxic. The Collaborative Family Law Process creates a more desirable working environment for those lawyers inclined toward problem solving, as opposed to vitriolic litigation. But do clients have the same level of satisfaction with the collaborative process as experienced by collaborative lawyers?

   The International Academy of Collaborative Professionals (“IACP”) recently published their findings following extensive research [Linda Wray, “IACP Research Regarding Collaborative Practice (Basic Findings”), The Collaborative Review 12 (2012): 8]. Statistics reflect that the collaborative process is primarily employed by middle to upper middle class, educated divorcing spouses with children, most of whom use some form of the interdisciplinary approach (that is using financial, family or other professionals) in their seperation. Although the vast majority (86%) of these cases settle within approximately eight months through the collaborative process, there is a small percentage of cases that do not settle or are unsatisfied with the process.

   In terms of actual client satisfaction, approximately three-quarters of all collaborative clients polled in the IACP Professional Practice Survey reported being extremely or somewhat satisfied. Even more notably, the satisfaction clients felt for the process slightly outweighed their satisfaction with outcome.

   Clients indicated that they were satisfied with the manner in which their personal respect and respect for their viewpoint was maintained, the manner in which matters were clearly explained, their concerns and confusion addressed, the effectiveness with which their lawyers communicated, and the assistance they received with the development of their parenting plans and options for various issues.

   Collaborative Family Law creates and nurtures a “safe space” for clients who are frequently, at their most vulnerable, addressing a drastic change in their lifestyle, and experiencing intense emotions.

   Separation and divorce present a number of challenges and the success and satisfaction rates of any legal processes are important to consider.

   Seek out personal experiences of collaborative clients and lawyers before selecting the approach you wish to take. Self-examine what you truly seek from the process, and determine what your goals are. Collaborative Family Law may create an increased chance for desirable outcomes and, throughout the entire process, the greatest degree of client satisfaction.

   Fareen Jamal                                                 Jessie Lamont
   Bales Beall LLP                                              Bales Beal LLP
   2501-1 Adelaide Street East                       2501-1 Adelaide Street East
   Toronto, ON                                                   Toronto, ON
   M5C 2V9                                                        M5C 2V9

   Tel:  416-203-4538                                     Tel: 416-203-8591
   Fax:  416-203-8592                                    Fax: 416-203-8592
   fjamal@balesbeall.com                                jlamont@balesbeall.com

10. A Recipe for the Collaborative Process

    February 1, 2012 11:44 am Leave a Comment

    by Meredith Cox

    I have to get on the bandwagon and write about the latest news about Seal and Heidi Klum. They were the celebrity couple that was going to make it. Their marriage seemed perfect…to the outside world. They are two extremely talented parents with four adorable children. The first comments to hit the tabloids were from Seal. He was still wearing his wedding ring and said he loves his wife. From one report I read, it sounded as if Ms. Klum was not so quick to take off her ring either. The couple is known individually and collectively for extremes of beauty and lyricism. If their early statements and conduct are any indication, we can expect them to set the diamond standard for separating couples everywhere. We will just have to wait and see how this unfolding story turns out.

    I started to think about my ideal recipe for the Heidi Klum/Seal collaborative family law process and what I would say if one of them came to my office:

    1. Start with the foundation of the collaborative process. Understand what you are agreeing to do. It will not be like an episode of The Good Wife. No one is going to get off on a technicality. You will not be finished in one hour with commercial breaks. It took time to get in this mess and it will take time to unravel it.

    2. Bring a healthy serving of love, caring and/or respect to the table. It can be one without the other two.

    3. Be aware that being concerned about the other person’s well-being is not a bad thing. Be generous. Stretch a little even if you are mad or disappointed.

    4. Really think about how your children are going to fare. This requires you to put them first before your own agenda. I mean “FIRST.” What you do now will be forever in their eyes and hearts. You are setting the example that will govern their conduct in relationships.

    5. If you have done something really bad in the eyes of the other person, own it and apologize. Deal with it up front and move on. If you do not do this, expect the issue to hang over the bargaining table like an overflowing compost bin.

    6. Do not refuse to give relevant information to the other person. If you do, there will be lingering doubts. The minute the phrase “none of your business” enters the discussion the other person will be hurt, suspicious and angry. Progress will grind to a halt.

    7. Watch your language. You do not need to score points with verbal swordfights. Think about how you would like to hear the message you want to deliver.

    8. Do not be shy about the time or costs of involving family professionals and financial professionals. They are there to support you, create options and provide vital information. Ultimately, their input will be critical to your success. If you do not know what they can do for you, ask.

    9. Listen to your lawyer. We are there to advise you and help you make decisions.

    10. Above all, use your own brain. Think. Be prepared to offer options and solutions. Do not allow this to just happen to you. No one will make the decisions for you. You are part of the process. It is your divorce or separation. It is your family. It is your future.

    Meredith Cox
    Sweatman Law Firm

    11-1400 Cornwall Road

    Oakville, ON L6J 7W5

    Profession: Family Law Lawyer
    Tel: 905-337-3307
    Fax: 905-337-3309
    meredith@sweatmanlaw.com
    www.sweatmanlaw.com

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11. Communication

    November 30, 2011 10:55 am Leave a Comment

    

    How many clients have experienced the frustration of negotiating terms of a Separation Agreement with their spouse in an adversary process that has involved lawyers, and that has seemed to take forever and cost a small fortune? Just when you think you are close to reaching the final “deal” that you can live with, there is a “push back” from your spouse, that makes you feel like exploding. It may not be a major item, in fact, it may not even involve money, but could relate to the return of a “personal item” or the division of furniture, but it is the “straw that breaks the camel’s back”, and you just feel like having your lawyer tell your spouse’s lawyer that the deal is off. Why should you keep giving in? Why does your spouse have to always win? You tell your lawyer to take the case to court.

    How many negotiations break down at this stage, and how many clients are feeling dissatisfied? How many lawyers are also feeling frustrated and dissatisfied?

    The typical lawyer response would be to justify the “fairness” of the deal. I believe we are so ingrained in our defensiveness that we bring strategies used in war to our communication. We become defensive any time we feel the need to protect ourselves. We develop barriers in our communication. We are protecting our egos, our self-image. Many lawyers engage in power struggles with their own clients, to try to convince the client that the proposed settlement is fair, and is in the client’s best interests.

    As a lawyer in this situation I know I have felt frustrated with my client. I would try to convince him/her that the deal is more than fair; it would cost a small fortune to take this matter to court, with no guaranteed result, and I would tell him/her that they need to look at the big picture. In effect, I would be engaging in a power struggle with my client. My client is in a power struggle with their separated spouse, and I am also in a power struggle with the spouse’s lawyer.

    When I was faced with this situation recently I made a conscious effort to try the methods of “Powerful Non-Defensive Communication” taught by Sharon Strand Ellison.

    I first asked the client “what do you mean by fair”? The client was most upset and angry and continued to complain that they were tired of conceding, why did their spouse have to always win, etc. I then said: I hear you saying that your spouse’s proposal to reimburse her for some income tax is not fair to you and you want me to dissolve the negotiations, and take this matter to court. Yet at the same time you have said to me on numerous occasions that you want this over, that you are finding it incredibly stressful, you are having trouble sleeping, and you feel ill at times. You also have told me that the legal costs are killing you. And I know I have told you under the law model the result is not always so crystal clear, and there is a range of likely outcomes in terms of what a court might order, and the amount they are seeking is within that range, then I believe that you are responding right now from emotion because you are upset, and I think you should think about how you want to respond formally before giving me any further instructions.

    My client agreed, and shortly thereafter we reached a final settlement.

    What would the client/lawyer relationship look like if we could remove the power struggle from our relationships? What if we could change the way we communicate and we could all model effective communication techniques for each other? What impact might that have on our negotiations with spouses, and other lawyers?

    I believe it is possible to remove the power struggle from our relationships, even with our teenage children, our spouses, and with other lawyers. We can change the world one word at a time.

    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

12. 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