It's about the process you choose

When a client calls me for the first time and explains that they have made the decision to begin the legal process of separation, the question I always ask them is "OK. What kind of process do you want to use to get you to that legal separation?" They are usually dumbfounded because this is not something that they have thought about. They have made the decision to separate but they don't really know how that will be accomplished. I then explain to them that there are a few process choices as to "how" to separate. These process choices are as important as the actual terms of separation. The reason I say this is because the way that a separation is handled sets the tone for any future contact between spouses -- and this can be crucial, especially where they need to communicate with each other because they have children together.

These process choices are:

1. Kitchen table negotiation: A couple creates their own home made separation agreement, signs it and then settles each of their affairs accordingly. no legal professionals are involved;

2. Mediation: A couple meets with an independent third party (preferably someone trained to deal with separation issues) who facilitates the completion of a separation agreement. The couple then take the agreement to each of their lawyers to get independent legal advice before signing;

3. Collaborative Practice: Each party hires their own collaboratively trained lawyer. The collaborative lawyers and the clients work together as a team in a series of four way meetings to negotiate the terms of the separation. (There may be other professionals such as family professionals and financial planners to assist in this process.) The lawyers and the clients are not permitted to threaten or go to court. If there is a breakdown of the process, the parties will need to hire new lawyers to help them to go to court;

4. Traditional Negotiation: Each party hires their own lawyer. In this process, lawyers may advocate for their clients in a traditional fashion (ie. write positional letters, threaten court action) in order to negotiate the terms of the separation agreement;

5. Litigation: A party begins the process by filing a court application seeking the court's assistance to resolve the issues of a separation. The court will issue orders dealing with the issues of separation.

Over the next few blog posts I will be differentiating these process options so that you know which option is best for you.

Happy New Year!

My apologies for not posting to this blog for some time. I wish everyone a prosperous and peaceful 2014!

When Lawyers Like Each Other (Part 2)

Hello readers! It has been awhile (!) since I posted on my blog, for which I apologize.

Back in 2008, I wrote a post called "When Lawyers Like Each Other" where I talked about the importance of working with lawyers "who like each other" in a family law negotiation. My point was that clients are smarter to work with lawyers who know and regard each other highly in order for negotiations to proceed efficiently. I wanted to reiterate that point, and I wanted to add a point to that.

Here's what I've learned through my years of practice: The "dream" file for a family lawyer and a client is where the lawyers like and respect each other and the clients like and respect each other as well (but happen to be separating). In these files, the negotiation can proceed very quickly and efficiently. These are the kinds of files where the lawyers might even spend less than five billable hours of time in order to complete a case. For me, there is a high level of satisfaction working on these types of files.

The "second best" file scenario is where the lawyers like and respect each other, but the clients don't, OR vice versa (the clients like and respect each other but the lawyers don't). These will be challenging files, but they are manageable. These files may still take a fair amount of time to complete. I would go so far as to say that it is more important for clients to like each other than lawyers to like each other in this context because the clients are the ones calling the shots. Whenever I am having a problem with another lawyer on a file, I always "employ" my own client to speak to his or her spouse to see if they can make some headway in the negotiations. Sometimes clients can surprise the lawyers by working out the problem in the negotiation on their own while the lawyers are bickering!

The worst file scenario is -- you guessed it -- the lawyers don't like or respect each other and the clients don't like or respect each other. These are incredibly difficult files. In these files, you will find clients who may expect their lawyers to take on their anger, and for lawyers to wholeheartedly accept that request. For me, these are the least satisfying files to work on. These are the files that end up in court.

So, what I tell my clients is this: Either the lawyers have to like each other or the clients have to like each other (or both). But a file where the lawyers do not like each other and where the clients don't like each other is doomed. There is mistrust all around.

My advice for clients who want an efficient and practical negotiation is -- when you are retaining a lawyer, ask your lawyer who they enjoy and respect working with, and see if you can get your spouse to coordinate their lawyer with yours.

The best way to negotiate a prenuptial agreement or cohabitation agreement

From time to time, I have clients who are about to get married and contact me in order to negotiate a prenuptial agreement for them. I also have had clients who are about to live together or are already living together and would like a cohabitation agreement in place. Having negotiated many of these agreements over the years, I wanted to comment on the best way, in my opinion, to negotiate an agreement. I will refer to these agreements as "prenuptial agreements" below, but please understand that I am also referring to cohabitation agreements.

Just so we are clear -- a prenuptial agreement is an agreement that two parties sign before they get married regarding issues such as property division or support, in case they separate in the future. In order for a prenuptial agreement to be valid and enforceable, both parties need to get independent legal advice from their own lawyers. Many clients are surprised that they need two lawyers in order to enter into a binding prenuptial agreement. In fact, because each party's interests are adverse in law, when it comes to negotiating an agreement, lawyers are necessary in order to ensure that each party knows how the agreement will affect their legal rights in case they separate.

The traditional way of negotiating a prenuptial agreement is for each client to retain a lawyer and for the lawyers to negotiate on behalf of the clients. The hope is that the lawyers are going to speak nicely to each other about something that is unpleasant -- what each party will get in case they separate in the future -- and come up with the terms of the prenuptial agreement. The last thing the lawyers want to do is to create a ridge between two people who are very much in love and want to get married -- but it does happen! Part of the problem is "broken telephone" when speaking through lawyers. Another part of the problem is the divide that is created between the couple because they are not being encouraged to talk to each other about the legal issues, and only to their lawyers.

I have found the most successful way to help clients to negotiate a prenuptial agreement is to encourage them to do the negotiating in the same room with a mediator. The couple will meet with the mediator and discuss the reasons why they want a prenuptial agreement, the couple will be encouraged to talk to each other about the issues, the mediator will provide general legal information about family law, and hopefully, the mediator will end up drafting a comprehensive prenuptial agreement. The parties to the agreement will still need to get independent legal advice from their own lawyers, but most of the work will have been done by the clients and mediator alone before the lawyers are involved. This is also a process that is less expensive than having lawyers involved right from the beginning because the parties are only paying for one professional (the mediator) to work with them, instead of the two lawyers. Most importantly, it's a friendlier, more personable process.

Collaborative family lawyers must meet the same standard of practice as family law litigators

I felt it was important to comment on the recent decision of Webb v. Birkett, [2011] A.J. No. 54.

In this decision by the Alberta Court of Appeal, the court ruled that collaborative family law practitioners must meet the same standard of care as family law litigators. Have a look at the article by Cristin Schmitz in Lawyers Weekly here: http://www.lawyersweekly-digital.com/lawyersweekly/3038?pg=14#pg14
You can also read the full decision here: http://www.canlii.org/en/ab/abca/doc/2011/2011abca13/2011abca13.html

This was a case where a client sued her collaborative family lawyer for failing to provide her with proper and complete legal advice during the collaborative family law process which the client and her ex-husband were participating in. In particular, when the client instructed the lawyer that she wanted to waive receiving financial disclosure from her ex-husband regarding the value of his dry cleaning company, her lawyer did not explain the risks and losses attendant upon her waiving receipt of full information from the other side. Accordingly, the client later claimed that she made an uninformed decision regarding some of her rights when she entered into a binding separation agreement with her ex-husband.

The court ruled that the lawyer had indeed fallen below the standard of care owed to her client. The lawyer should have tried to obtain all relevant disclosure from the other side and provided a "legal model" analysis of the client's entitlements by law (in property division, spousal support and/or child support). Where a client insists that he/she does not want to obtain full disclosure from the other side and feels satisfied with "not knowing" certain information, a lawyer needs to tell the client that they cannot give proper legal advice based on the lack of information and to also advise the client that they may be accepting less or paying more in a settlement than what would be required by law. It is preferable that the lawyer communicate this in writing to the client.

I must say that this decision, albeit necessary, is nothing "earth shattering" to me or my fellow collaborative family law practitioners. We are fully aware that our primary role is to protect our clients the same way that a traditional family lawyer (ie. litigator) must. We must keep abreast of the changing law and we need to advise our clients about how the law affects them. People, including the lawyer who was sued, may have the misperception that in a collaborative family law process, the lawyers do not need to "cross their t's and dot their i's" in the process simply because the clients who have entered into the agreement seem happy with the deal they are reaching. The only difference between a settlement reached through collaborative family law process versus traditional negotiation or litigation is the tone of the process itself -- the collaborative process is premised on the parties and lawyers working collaboratively, whereas the traditional negotiation/litigation process is not. However, both processes require that clients receive thorough and well reasoned legal advice before they enter into binding agreements. The standards of that legal advice are definitely no different between the processes. (In fact, many of today's collaborative practitioners were once traditional family lawyers practicing in the court system.)

Steine v. Steine stands for "incomplete agreements"

A recent decision, Steine v. Steine, decided by Superior Court Justice Gregory Mulligan, stresses some of the pitfalls of "settling a case on the courtroom steps". In this particular case, the litigants and their lawyers attended a case conference (a meeting with a judge before a formal court appearance) to discuss the merits of their respective positions. The lawyers and clients negotiated for 6.5 hours and managed to settle all issues in the case. Minutes were drafted up but because a photocopier was not available in the courthouse at that time, one lawyer promised to provide a copy of the minutes to the other lawyer. Unfortunately, this never happened and slowly, the deal reached began to unravel. One of the problems in this case was that the lawyers had not fully teased out all of the specific terms of the negotiation when the minutes were drafted -- probably because it was late in the day and everyone had been negotiating for 6.5 hours. As a result, when it came time to formalize these minutes at a later date, the lawyers could not agree on some very specific terms (that they thought had already been agreed to).

The reason I highlight this case is because it is very typical in court cases for the parties to settle their case on the courtroom steps. However, these agreements are often rushed through, not comprehensive, and not forward thinking. The parties don't have an opportunity to "try on a pair of shoes and walk around in them". They need to make a final decision immediately. And, then, they are sometimes not happy with the results because they didn't think through all of the repercussions. So...I must stress that this is a peril of seeking resolution through the court system.

Read the Law Times article here: http://www.lawtimesnews.com/201010047654/Commentary/Family-Law-Steine-case-shows-pitfalls-of-incomplete-agreements

Ontario Chief Justice Warren Winkler proposes compulsory mediation before court

A few weeks ago, Justice Winkler, in his speech at the Opening of the Courts here in Toronto proposed that mediation should be compulsory before couples can gain access to the court system. Although I think that there are some difficulties with making mediation compulsory in all court cases, I do believe that this is a step in the right direction.

And, quite recently, a collaborative team of individuals from the Ontario Bar Association, the ADR Institute and the Ontario Association for Family Mediation have made recommendations to Attorney General Chris Bentley urging for measures to be taken to make court the alternative, not the default point. The Law Times writes, "The authors want the province to train specialized case assessment co-ordinators to steer as many families as possible away from the courts and thereby leave judges free to deal with the most difficult matters. In those instances where litigation is the only option, they want greater judicial continuity, with specialized family court judges seeing each case through the system from start to finish."

So, definitely, we are seeing a continuing shift to alternative dispute resolution in this province. In speaking with some of my family litigation colleagues, I get the sense of how disheartened they are with the current system.

See the article from the Law Times here: http://www.lawtimesnews.com/201010047657/Headline-News/Make-court-the-alternative-report-urges