Tag Archive: collaborative family lawyers

1. 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.

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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 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

    

    

    

2. The Collaborative Process: A One-Stop Shop

   June 19, 2013 2:42 pm Leave a Comment

   

   Marie Nickle

   
   By Marie Nickle, LL.B., LL.M, Acc.Fm.

   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

3. The Emotional Divorce

   October 3, 2012 11:13 am Leave a Comment

   by Fareen Jamal

   “What separates those who can obtain a smart divorce from those who can’t is this quality of being prepared to move on. They’ve done their mourning, to the extent that mourning is involved. And they have come to recognize that they are not victims. ‘This is what life has to offer. So let’s move on.”

   ~ Jeffery Wilson, cited in Deborah Moskovitch, The Smart Divorce, (Chicago: Chicago Review Press, 2007).

   Often, couples fail to properly address their grief following the breakdown of their relationship and the loss of their marriage. The grief of losing a life shared, your identity as a couple, your security and even your beliefs  If you fail to come to terms with the fact that you are divorcing emotionally from life as you know it, the legal process of divorce can become almost impossible. I have had many a file where the parties’ inability to let go of their anger blinded them from noticing the damage their decades of litigation had on their children and personal lives. They were going through the legal divorce failing to address their emotional divorce.

   Failure to identify this grief and to deal with it constructively can result in a long, arduous and expensive legal process.

   Arnold Schwarzenegger comments on the emotional impact of his divorce from Maria Shriver, after he fathered a love child with the couple’s housekeeper, in his upcoming book, Total Recall: My Unbelievable True Life Story. The New York Daily News revealed that Mr. Schwarzenegger continues to believe that he is in denial and still hopes for a reconciliation with Ms. Shriver.

   Divorcing couples must acknowledge that a divorce can divide assets and liabilities, and arrange for child or spousal support but it cannot punish your spouse for his or her bad behaviour during or after the marriage. It cannot guarantee that your support payments will be made or that access schedules will be smooth and problem-free. It cannot make your spouse change, nor will it return your life to the way it was.

   Collaborative family lawyers recognize and address the grief. Perhaps you need to give yourself a period of mourning. Then focus on how you want your life to look. Create a strong support network and recognize that you are not alone. Professional help through parenting experts, financial specialists and therapists can also help regain control of your life. Collaborative family lawyers routinely draw on other experts to assist in the process.

   As you deal with your grief, it will become easier to make legal decisions that are in your best interest. Divorce with dignity, and move on. And find a process that will support you in doing so.

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

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