I am pleased to announce that I will be offering "Separating/Divorce Legal Information Sessions" at my office. The purpose of these sessions is to provide people with general legal information about separation/divorce. The format is question and answer. (You ask the question, and I provide the answer.) For more information, please link here: http://www.meetup.com/The-separation-divorce-legal-information-group/.
Alternatively, you can get more information about these sessions by calling my office at (416) 913-1994.
Monday, August 16, 2010
My Philosophy of Practice
I wanted to provide a little more information about the philosophy of my practice. This will give you some insight into how I assist my clients through their separation.
I assist clients with the legal aspects of their separation by helping them to reach settlement outside the court process. The reason that I don't represent clients in family court anymore is because, inherent in the litigation model, is the concept of someone being right, and someone being wrong. I see people as having legitimate interests and needs which, when obstructed, cause them to take a hard position. Enter the lawyer and the court system. Unfortunately, the litigation process can have the effect of polarizing separating spouses. Instead of helping spouses to understand and acknowledge each other's legitimate interests and needs, they can become more positional as their lawyers trade legal positions. Once the dust is cleared after a hard won battle (either on paper or in court), few victorious spouses feel truly vindicated, especially if they need to continue to maintain communication with their spouse (perhaps, because of the children). I often ask my clients with children, "If you are having difficulty communicating now, can you imagine how difficult it will be to communicate with each other regarding the children after you've fought each other in court?"
The process that I most commonly use to help my clients reach settlement outside the court process is focusing them on where their interests lie, instead of what their positions are. When we look at our interests, we are looking at what are needs and values are, without going so far as thinking about how we will achieve that need. When we look at positions, we are talking about taking a specific stance because we have already decided how we will achieve our need. For example, a positional statement might be "I want to remain living in the house after separation". An interests-based statement might be, "The house is close to where I work and where the children go to school. Living close to where I work is important to me." Once parties focus on their interests instead of hard positions, there is an opportunity to carve out solutions that might work for both of them. Of course, throughout the process, my role is also to educate my client regarding what the law says about any one particular issue.
You may be saying to yourself that the approach I am describing is fine in an ideal world, but it would not apply to you and your spouse because the communication between the two of you has deteriorated beyond repair. It is certainly true that there are cases where litigation is absolutely necessary (in cases where there is violence, a profound distrust or a severe power imbalance between spouses), however, my experience has been that the vast majority of separating couples could benefit from a non-adversarial process. I say this because a non-adversarial approach is not strictly reserved for amicable, low conflict separating spouses. It is also suitable for separating spouses who have found themselves in a higher conflict situation. In such cases, it simply means that the lawyers need to strategize more carefully about how best to facilitate the negotiations between their clients. It also means that the lawyers will need to do more coaching with the clients (sometimes with the use of family professionals) regarding how to avoid escalating the conflict. In my opinion, it is still well-worth it (both emotionally and financially) to work within a non-adversarial process to resolve separation issues.
I assist clients with the legal aspects of their separation by helping them to reach settlement outside the court process. The reason that I don't represent clients in family court anymore is because, inherent in the litigation model, is the concept of someone being right, and someone being wrong. I see people as having legitimate interests and needs which, when obstructed, cause them to take a hard position. Enter the lawyer and the court system. Unfortunately, the litigation process can have the effect of polarizing separating spouses. Instead of helping spouses to understand and acknowledge each other's legitimate interests and needs, they can become more positional as their lawyers trade legal positions. Once the dust is cleared after a hard won battle (either on paper or in court), few victorious spouses feel truly vindicated, especially if they need to continue to maintain communication with their spouse (perhaps, because of the children). I often ask my clients with children, "If you are having difficulty communicating now, can you imagine how difficult it will be to communicate with each other regarding the children after you've fought each other in court?"
The process that I most commonly use to help my clients reach settlement outside the court process is focusing them on where their interests lie, instead of what their positions are. When we look at our interests, we are looking at what are needs and values are, without going so far as thinking about how we will achieve that need. When we look at positions, we are talking about taking a specific stance because we have already decided how we will achieve our need. For example, a positional statement might be "I want to remain living in the house after separation". An interests-based statement might be, "The house is close to where I work and where the children go to school. Living close to where I work is important to me." Once parties focus on their interests instead of hard positions, there is an opportunity to carve out solutions that might work for both of them. Of course, throughout the process, my role is also to educate my client regarding what the law says about any one particular issue.
You may be saying to yourself that the approach I am describing is fine in an ideal world, but it would not apply to you and your spouse because the communication between the two of you has deteriorated beyond repair. It is certainly true that there are cases where litigation is absolutely necessary (in cases where there is violence, a profound distrust or a severe power imbalance between spouses), however, my experience has been that the vast majority of separating couples could benefit from a non-adversarial process. I say this because a non-adversarial approach is not strictly reserved for amicable, low conflict separating spouses. It is also suitable for separating spouses who have found themselves in a higher conflict situation. In such cases, it simply means that the lawyers need to strategize more carefully about how best to facilitate the negotiations between their clients. It also means that the lawyers will need to do more coaching with the clients (sometimes with the use of family professionals) regarding how to avoid escalating the conflict. In my opinion, it is still well-worth it (both emotionally and financially) to work within a non-adversarial process to resolve separation issues.
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