Comments Off on The Collaborative Process: A One-Stop Shop for Resolving…
Marie Nickle LL.B LL.M Acc.Fm
The Collaborative process is my favourite alternate dispute resolution process. Unlike mediation, it is a one-step model. Mediation requires two steps: one to reach a consensus with the mediator; and two, to receive independent legal advice from lawyers who will also turn the Mediation Report into a legally binding agreement or court order.
The Collaborative process is a full service model as it includes all necessary professionals, including lawyers. When lawyers have been involved from the outset they understand the thought processes that went into the construction, unlike many mediations where lawyers are not present during the mediation sessions and are handed a Mediation Report cold, without any context as to what is important to the parties and how the agreement captures the optimal results, crafted by the parties themselves.
Throughout the Collaborative process, the lawyers are ensuring the agreement meets all the necessary legal requirements and that the clients are legally protected, while the other professionals are providing other necessary and valuable services for the parties. The Collaborative process can be thought of as the process that is a one-stop shop for resolving family conflict upon separation.
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.
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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 orPariah?” 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
The Collaborative Process is my favourite dispute resolution process because lawyers are present in the process to not only problem solve for clients but to protect their individual legal interests throughout. Mediation is a good process, but lawyers are often not present so that when the parties attend ultimately to obtain independent legal advice, because the lawyers’ thought processes have not gone into the construction of the Agreement, they are more likely to find problems due to their lack of understanding of what is ultimately important to the client.
The Collaborative process is a “one stop shop” and accordingly, more effective. If Mediation included the lawyers more often, it would be a better process, in my opinion. I base this on a recent experience where I facilitated a mediation that included the lawyers, who were extremely helpful in narrowing the issues and helping to generate some options. The lawyers then went on to work together to generate a legally binding agreement for the parties. They worked extremely well together and both parties appreciated the “service” provided to them by their lawyers in helping them to resolve.
Marie B. Nickle
The 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
Depending on how the day has unfolded I may indulge in N.C.I.S. or Criminal Minds reruns or some lighter fare such as Real Housewives of Vancouver. One late night I tuned into Family Matters, Justice Harvey Brownstone’s show on Family Law.
The guest was former Alberta Court Judge, Michael Moran. He was explaining his decision to leave the bench after 22 years to become a mediator so he could serve the public better. As a mediator he has the luxury of being able to listen fully to the parties’ perspectives to help them solve their own problems. He cited the “Judge Judy Phenomenon” where the litigants tell their story, she interrupts a few times, gives a quick decision and they cut to a commercial. The result of the show is a distinctly false impression of the justice system. Judges do not always have the freedom to dig deep and understand every aspect of the conflict. Judicial decisions are frequently made in the face of incomplete information. He realized the best outcome could not possibly come from a fraction of the story.
I was reminded of two recent cases in which I had acted for the husband and the wife respectively. We started both cases by suggesting mediation to the other side. They refused so we commenced a proceeding in Court. In one case my client was threatened with contempt of court for trying to tell her side of the story. We were getting nowhere and the trials were looming. Neither party had the funds for a trial. After many fruitlessly painful court attendances and thousands of dollars later we came full circle and agreed to mediation.
After the first mediation session both clients reported feeling satisfied with the way the day unfolded. They felt heard and understood. They sat with a mediator for the day and hashed out their issues. Both parties got to talk at length about what they wanted and what happened behind the scenes before and after separation. It took time, but it was well worth it. Some of the misunderstandings were cleared up. At the break one of the couples went out to get coffee for everyone. They returned chatting and laughing. The connection between them was tangible. In both cases, the mediator used the newly built bridges to assist with designing the terms of the settlement.
The process of mediation got the parties and the lawyers into different mindsets of calm, compassion and warmth. We worked as teams instead of adversaries to climb the proverbial mountain. It was not easy, but both cases eventually settled. Mediation produced healthier and more effective ways to resolve conflict for the clients. Simply, it was less stressful and more rewarding for all involved.
About Meredith Cox
Meredith Cox is a collaborative family lawyer and trained mediator. Her law practice and ongoing education have focused on the diverse interests of family law clients since 1994. After learning about Collaborative Family Law in 2002, she was immediately convinced the process offered a better way to help clients create their own solutions. Meredith is firmly committed to resolving family law disputes respectfully and sensibly for the sake of the clients and the children caught in the middle.
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
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.
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.
