Lessons for Collaborative Clients and Practitioners

by Diane Daly
In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

Second, it illustrates the importance of choosing your collaborative practitioners wisely.

Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

Diane F. Daly
Collaborative Lawyer, Mediator & Arbitrator

A Recipe for the Collaborative Process

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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Collaborative Family Law Practitioners Are The Good Guys!

by Christine Torry

There is a tendency, I find, for the public to see lawyers in a very negative light, particularly when it comes to the area of family law.  People need family lawyers when they are going through a very hurtful and difficult experience.  They look to the lawyers to help them find solutions to a situation they are hurt and angry about.  Often that is a solution that meets only their individual needs, one person in a family.  If the solution includes going to court, the experience can be hostile, protracted and expensive.  This is generally not directly attributable to the actions of the lawyer.  However, as lawyers are an integral part of the process, it is logical that the person often feels that the lawyers, theirs and/or the other parties’, have contributed to the very negative experience they are having with the other party, with the court system and with the litigation process they are involved in.

In the litigation arena the parties often have negative experiences not only with their lawyers but also with other professionals involved.  Often financial experts are hired by one or the other party to prove or disprove financial wealth or income, or mental health professionals are hired to conduct an assessment of their abilities as parents.  All of these participants are part of the overall experience which in litigation, I believe, is never positive.  It may sometimes be necessary, but it is never positive.

Collaborative practice differs significantly from the standard practice of litigation.  Lawyers and other collaborative professionals are trained to do things differently.  Their job is to work as a team with all parties and professionals to find solutions that meet the needs and goals of all members of the family as they move from an intact to a separated family.  Often we describe ourselves as transitioning from litigators to peacemakers.  We use our legal skills in creative ways to solve problems, not to prove a fact or win a case.  Our goal is to help families separate in a way that will respect what they had and how they will deal with each other in future.

Abraham Lincoln is quoted as saying:  ”Discourage litigation.  Persuade your neighbours to compromise whenever they can.  Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time.  As a peacemaker, the lawyer has a superior opportunity of being a good man.”

My first training in collaborative practice was more than 10 years ago.  Since then I have had the privilege of working with many clients interested in finding solutions to their separation that are focused on their family, and how to resolve their dispute in a way that considers everyone’s needs and goals for the future.  With one particular family, I had the opportunity to meet with the children at a social engagement some years after their parents had separated.  The son, at that time about 18 years of age, proudly introduced me to his friends as “one of the good lawyers”.

It confirmed my belief that the collaborative process helps all members of the family, particularly the children.

Christine A. Torry
Willis & Torry

35 Queen Street South
Mississauga, ON, L5M 1K2

Enlightened Parents Choose Collaborative Family Law

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

Communication

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

Mudslinging and Collaborative Law

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

Confidentiality and the Collaborative Divorce Process

I was a grocery store line up the other day maximizing my wait time by reading the cover of the National Enquirer. Divorce Scandal was the flavour of the week.: read about Kim Kardashian, Will Smith and Jada Pinket , Demi Moore and Ashton Kutcher. Read about the details; allegations of abuse, of adultery, multimillion dollar settlements.

Think about your own separation. How would you like the details of your relationship and financial circumstances made public? Think because you’re not a celebrity your affairs (money matters and the other kind) will be shielded from public view? Think again.

As soon as you (or your partner) commences a court application a file is created, a file that can be viewed by any member of the public with enough curiosity and time on their hands to attend the courthouse and ask to see the contents. Are you bringing, or responding to, a motion for support or custody? Except in rare instances motions are heard in open court and the arguments made by you, or your lawyer, are made in a courtroom full of other lawyers, other litigants, their friends and family as well as court staff. How would you feel if all those assembled were told how much you earn and what your debts are, or perhaps how your spouse cheated, or is an unfit parent? What if your partner is making those statements about you? Think no one is listening? Maybe, maybe not. What if a co-worker, or neighbor just happens to be in court that day? Feeling uncomfortable yet?

Suppose you manage to avoid motions and go straight to trial? (after waiting months or years to get a trial date) That ‘audience”, even if it’s just court staff, will be listening to you on the witness stand, reciting details of your personal life, defending yourself against the allegations or demands of the other side. When the trial is over the Judgment may be reported. Now anyone with a computer can search for and read that decision. Trying to shield your children or other family members from the reasons given by the trial judge? How do you shield them from information so easily accessed over the internet ?

The good news is that it doesn’t have to be that way.

When Prince Charles and Princess Diana split they negotiated a settlement, which undoubtedly involved millions of dollars. Despite much speculation no one was privy to those details because they wisely avoiding going to court.

The collaborative process is confidential. What is said at meetings stays there. Documents are exchanged between counsel, not filed as part of a court record. No one need see your Separation Agreement unless you want them to. Sound like a better way?

Protect your privacy. Keep things confidential. Go collaborative.

Beverley A. Martel

Collaborative lawyer and a proud member of the Peel Halton Collaborative Family Law Practice Group