Tag Archive: law

1. “The Good Karma Divorce” as a Prescription for Successful Collaborative Family Law Outcomes

   August 3, 2012 9:08 am Leave a Comment

   

   By Meredith Cox

   In addition to all the bad things we associate with the advent of television, there is another item to put on the list. All the lawyer shows have fostered unrealistic expectations about the legal system. Television judges always seem to get “it” and they only need an hour to do so. They are always banging gavels to signify a decision has been made. Then people start hugging and shaking hands. The halls of justice are not constantly echoing with the sound of gavels and quickly dispensed rulings. The judge does not always assess the situation with the same standards of fairness as clients. This is largely why lawyers can never predict what will happen in court.

   The Good Karma Divorce is an excellent resource for anyone going through separation and divorce. As a family court judge, the author, Judge Michelle Lowrance, understands better than most why going to court is not the best option for couples. She debunks the myth that there exists a “non-discretionary standard of justice that is not dependent upon the judge’s personal values.”

   I know this all too well because I argued a hotly contested motion before a judge, who wrote out his ruling in my client’s favour before he realized he knew a relative of one of the parties. He advised us he was stepping back from the case. We went down the hall to argue the same case in front of another judge. The result was completely different. We were not successful. Same facts. Same materials. Same family. My client was gobsmacked. My competitive side was irked. No one likes to lose, but even more to the point, I learned a valuable lesson about the justice system.

   Another myth destroyed by Judge Lowrance is the notion that the judge can solve everything simply by virtue of his or her exalted position using special powers. The gavel is not a magic wand. We need to be aware that a trial decision is not the wonderfully cathartic experience we all believe it will be. Clients do not leave the court room unscathed. They limp out exhausted, emotionally depleted, imbued with renewed animosity and a lot lighter in the wallet. Moreover, the blistering aftermath of a family trial can endure for years. People remember what the other person said about them in court. Generally, testimony is not flattering and sometimes people take serious liberties with the truth.

   Family law trials are about law and not about punishing the perceived wrongdoer. In our no-fault divorce system, you don’t get to bring up adultery and watch your spouse get yelled at. Because we have watched our parents disciplining our sibling offenders with time-outs, lectures, disappointed head shaking and raised voices, we anticipate the judge, who operates with similar authority, will treat a spouses indiscretions and misdemeanours with like aplomb.

   The Good Karma Divorce gives us a comprehensive four point prescription. First, you need to develop a personal code of conduct to guide your behaviour in the face of conflict and around your children. Second, put a harness on the negative emotions that swirl around – criticism, anger, blame, resentment, etc. Throw forgiveness and apologies on the fires of conflict. Third, prevent collateral damage to your children at all costs. Children do not just forget all the ugly details. Not all children are resilient. It takes an incredible amount of effort and forbearance to raise healthy, well-adjusted children. Do not make them take sides… ever. Fourth, you must not give up when you are tired of negotiating. Never assume you are the only one compromising or that your lawyer folded in your darkest hour. This is the point where you have to dig deep.

   Judge Lowrance wants us to view divorce as an opportunity for personal transformation and not a total failure. An awareness of karma as a force presents the ability to alter your life by changing thoughts and actions. Despite the belief that our brains are fully developed by the time we are adolescents, the experts now know the brain can evolve and change its structure. The scientific word for this phenomenon is called “neuroplasticity.” This is an emerging area for collaborative teams of family lawyers, mental health professionals and financial professionals. Part of the theory is that if we anticipate, manage and understand how the brain works in stressful, trigger-laden situations, we can achieve better outcomes for families.

   The good news in all this is even if you only adopt some of the recommended behaviours successfully, you can improve your brain’s functioning. It is more like a lifestyle than a diet where you have to do it all perfectly. You can adopt the principles at any time during and after negotiations. We always hear the saying “it takes two to tango.” When just one of the parties begins to apply the basic tenets, there can be a benefit for all involved. I took heart when I read this because I kept thinking how difficult it might be to get both parties on the same page at the same time. Karma? What is that anyway? Isn’t that just for New Age self-deceiving freaks trying to comfort each other in the face of evil?

   The Good Karma Divorce holds out the promise of finding a place of composure, wisdom and bravery with an easy to follow recipe. There is a judge in our region who orders parties to read certain books and prepare summaries of what has been learned to send to the other side. This book should be recommended reading for every couple and every family lawyer on the road to separation and divorce with regular reviews to ensure the learning stays imprinted on our collective psyches.

   As a dispute resolution process, Collaborative Family Law offers a forum for separating couples to learn important life skills, prevent more harm to the family and get on with the business of negotiating from a place of enlightenment.

   Regards,

   MEREDITH G. COX | Principal
   B.A. (Hons), J.D., LL.B.
   Barrister & Solicitor, Collaborative Family Lawyer and Mediator
   SWEATMAN LAW FIRM
   1400 Cornwall Road, Unit 11 | Oakville, ON L6J 7W5
   T.905.337.3307 | F.905.337.3309

2. 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