Tag Archive: separation agreement

1. Lessons for Collaborative Clients and Practitioners

   February 15, 2012 9:55 am Leave a Comment

   
   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

2. Communication

   November 30, 2011 10:55 am Leave a Comment

   

   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

3. Mudslinging and Collaborative Law

   November 7, 2011 11:44 am Leave a Comment

   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