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.
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
“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
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
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.
The answer to this question would be sometimes; but not always. A Financial Professional can fill many roles on a Collaborative Family Law file.
1. Collecting financial data from the clients, and preparing and presenting financial statements to the rest of the Collaborative team.
2. A Neutral. Some Collaborative Family Lawyers find having a neutral in the room to facilitate the discussion, enhances the Collaborative process. Both Financial and Family Professionals are called upon by lawyers to come to the Collaborative table as the neutral. A Financial Professional in this role can also provide creative solutions to some of the financial issues that can frequently become obstacles to resolution.
3. Develop long term forecasts based on alternative financial scenarios, as opposed to short-term snapshots. This takes the guess work out of the numbers for the separating couple; which in turn reduces the fear about their financial future. This has proven time and time again to be a very effective tool when resolving financial issues that are long term in nature. Examples of these are investments, debt reduction, purchase and sale of homes, retirement planning, and post-secondary education costs for children.
4. Analyze and discuss the financial ramifications of alternative settlement options. An example of this is tax consequences of their financial decisions. Clients need to know how their decisions can affect their tax situation as well as their access to government benefits.
5. Financial Mediation. A financial professional trained in Family Mediation is able to mediate all or some of the financial issues with the clients.
So it seems that a Financial Professional can be more than a number cruncher when asked to work on a collaborative file. Their toolbox is full of many tools that are essential to resolving financial conflicts that come up in the separation and divorce arena.
This process is a vehicle for lawyers to actually provide a meaningful service for clients. And why wouldn’t we? We are so well positioned to do so. People come to us at possibly the worst times of their lives. Their worlds are falling apart. They are stressed, sad, angry and above all fearful of the changes they are going through. We, as lawyers, are often the first they turn to for professional help. They are looking to us to guide them toward a resolution to their conflict that includes peace of mind as well as a legal resolution. After all, who doesn’t want peace of mind? Of course, we can’t advertise it and there are obviously no guarantees, but if even a small degree of peace of mind is attained in the process, we’ve accomplished something for our client. How do we do it? One way is being aware that, when children are involved, maintaining relationships is important for the client. Often the client is too immersed in their emotions to think long term. As such, it is difficult for them to form effective negotiation strategies. Often what is in the best interest of the client is tied directly to what is in the best interests of the entire family. We can help a client form good negotiation strategies by focusing on this principle. It will help keep clients centered in terms of what is really important. A true collaborative client will always agree that a good legal result has to include quality of life. After all, what good is it to bargain away an important relationship in exchange for a legal entitlement? If the relationship isn’t important then it doesn’t matter. But most of the time we are dealing with relationships that are important to the client in the area of family law. To provide truly valuable service we need to include advice that includes not only the legal advice, but how any given legal result will impact upon quality of life for the client going forward. This is what your client will thank you for. Not that I expect it, but I realized that I rarely even received thanks from a client, that is not until I started to practice in the Collaborative Process. Now it happens all the time.
Marie Nickle is a lawyer and trainer of the Collaborative Process.
Marie Nickle, LL.B LL.M AccFM
Lawyer, Mediator, Arbitrator, Trainer
Former panel lawyer for the Office of the Children’s Lawyer
Some judges ask collaboratively trained professionals to attempt to bring the ‘essence’ of the collaborative divorce to their litigious divorce clients in an effort to solve differences in a more peaceful manner and keep divorce proceedings out of court. One might think that these very same judges are attempting to put themselves out of business, however, there are enough divorce cases to keep them busy. A sad and sobering thought!
It was because of the judges ‘call to action’ that prompted me to have a collaborative slant on a discussion I recently had with a client who was going through the worst of a high conflict, litigious case. Sometimes divorcees can get caught up in fighting for things that maybe they shouldn’t. Let’s look at this example, below.
Husband, let’s call him Joe, will do anything to upset wife, let’s call her Jane. Joe knows Jane so well (they were married, right?) that he knows exactly what triggers her and he uses it. Jane has a pension plan from her place of employment and Joe has a right to be a joint beneficiary of that pension until he signs off on his interest in it. He is dangling this over Jane’s head in his effort to constantly thwart her in every effort to move forward.
In my conversation with Jane I asked her why the value of that pension was so important to her. She told me that she wanted to help support her children if anything were to happen to her (she has two children, eight and ten). As her pension is a defined contribution pension she is very concerned that if something happened to her that her children would have those funds to help meet their needs, especially since they are still dependent. It seemed to me that Joe was using his spousal rights to the pension to empower himself in the divorce proceedings. By neither agreeing to sign the right to give up his interest or to negotiate a separation agreement Joe has Jane right where he wants her. (I won’t get into the fact that Joe does have a valid interest in the pension asset which needs to be negotiated.)
Stepping back from the situation I reminded Jane that if her children did become the beneficiaries of her pension then the assets will become deregistered, at death, and included as income in her final tax return. Depending on what else was going on in the form of income, in that year, her asset will be diminished by her marginal tax rate. So then, if her pension was worth $100,000 her income would be $100,000 in her final tax filing (along with any additional taxable income). The kids would get the $100,000 and Jane’s estate (the residue that is also left to the kids) would pay the tax. So, in essence, the kids would be left with $56,590 (again, simple math and not taking anything else into consideration and using the highest marginal tax rate in Ontario). I asked Jane if she could afford to purchase a life insurance policy for $57,000, with her kids as beneficiaries so that if something did happen to her that she would protect the value of her pension to help meet the needs of her children? I also asked Jane if she was insurable. The insurance proceeds are non-taxable (as they were purchased with after-tax cash). I mean, if it was truly her goal to ensure her kids were OK this solution seemed like a win-win. Regardless of the asset in question, I suggested Jane do some number crunching to calculate the needs of her children going forward, if she wasn’t around, rather than just assuming the pension amount would suffice. Guardians would have to be paid and then, of course, there is the post-secondary education needs to consider as well. By purchasing an insurance policy she is taking away the empowerment of a high conflict ex-spouse. It no longer mattered what Joe did or didn’t do with regard to the pension issue. Jane’s concerns were addressed by another means and Joe no longer had pension power!
She loved the idea.
Sometimes it helps to not get hung up on particulars of each asset but rather what that asset truly means to you. In a litigious setting the power struggle seemed to be more of the issue than the value of the pension. Taking a collaborative approach and seeing another potential solution allowed Jane to move on with less resentment and still have her needs fulfilled. Hopefully, this post will reach someone who is contemplating divorce to consider the collaborative approach rather than getting hung up on the throngs of battle in a litigious setting by realizing needs can be met and voices can be heard in a less harmful manner.
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
I call collaborative divorce the “holistic approach” to divorce. Many, when faced with divorce, feel that they must have their interests protected and they want to have a lawyer represent them, to fight for their just half. Unfortunately, in looking for representation, divorcees often don’t realize that they are taken into the process that that lawyer practices without weighing their options. There are many different processes of divorce and it is important to understand the costs and benefits to each process. The costs can be in the form of legal or emotional costs. Emotional costs can stay with the family long after the negotiations end. It is important to understand which process the lawyer you visit practices so that you own your own process, rather than being directed into one that doesn’t suit your family.
Pictures speak a thousand words so I thought you might be interested in this short, complementary clip explaining the difference in the collaborative approach from the perspective of collaborative family law lawyers, divorcees, the children of divorce, financial and family professionals.
