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.
Showing posts with label collaborative family law. Show all posts
Showing posts with label collaborative family law. Show all posts
Thursday, January 16, 2014
Sunday, April 7, 2013
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.
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.
Friday, October 8, 2010
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
Tuesday, October 5, 2010
Helpful video by the Ontario Collaborative Law Federation
If you are interested in resolving your separation issues through Collaborative Practice, have a look at this very well done video by the Ontario Collaborative Law Federation. The video gives you a taste of what a collaborative case would look like: http://www.oclf.ca/OCLF-CPVideoPublicFast.htm
Sunday, September 26, 2010
Metro Morning Interview regarding Collaborative Practice
Hi folks. Check out an interview by Matt Golloway of the CBC with Judith Huddart (an esteemed colleague and fellow collaborative family lawyer) and Cyd Barley (a client who had a positive experience using collaborative practice in resolving her separation issues with her husband.): http://www.cbc.ca/metromorning/2010/09/collaborative-practice.html
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.
Wednesday, May 12, 2010
Legal Fees, legal fees, legal fees
I wanted to write in today about what we lawyers are known for -- charging legal fees(!). As you might be aware, clients are sometimes not very happy with the fees their lawyers charge. In the area of family law, I find that clients experience a "double whammy" in that they are (often)dealing with one of the most disappointing aspects of life (ie. separating from a spouse) and, at the same time, are needing to pay quite a bit of money to a lawyer to help them resolve the legal aspects of their case. I wholeheartedly agree that lawyers need to charge reasonable rates to their family law clients -- family law clients are not corporations with potentially deep pockets, they are individual members of society. I also think that clients need to be reasonable in their expectations of their lawyers and how fees are charged.
In general, lawyers charge on an hourly basis for all work they do on a case for a client. This means that if a lawyer spends a few minutes confirming something on the telephone with you, that lawyer will usually charge you for that time on the phone. (Of course, I know alot of lawyers, including myself, who don't charge for every last thing they do for a client.) It is important for clients to be aware of how much time they are spending on the phone with their lawyer and how much work they are allocating to the lawyer to do. If you want to keep your lawyer's fees down, here are a few tips:
1. Try and "batch" the ideas and issues that you want to speak to your lawyer about and then call your lawyer. In other words, minimizing the number of phone calls and e-mails with your lawyer will save you alot in legal fees. Ask questions and discuss issues in one sitting. Write down the legal advice that your lawyer provided you so that you are not discussing the same issues over and over again.
2. Some lawyers charge to simply play "telephone tag" with their clients or to listen to voice messages left by their clients. It is a good idea to set up dates and times to speak to your lawyer to avoid the "telephone tag" and the corresponding fees charged.
3. Understand that the more work the lawyer is in charge of doing, the more time the lawyer will take and bill you for. If you can volunteer to obtain some documents by yourself or do some non-legal work yourself, you will minimize the fees. Now, the lawyer cannot delegate "legal work" to you or assume that you will research the legal issues by yourself, but there are often items that you can help with.
4. Try and be organized regarding your documents. Ask your lawyer for a list of documents they need for their case, write this list down, and gather the information, and provide it to your lawyer in one batch. Your lawyer will be so impressed! If your lawyer has to nag you for documents, they will charge you for it.
5. Also understand that the more conflictual a case is, the longer it takes to resolve, and the higher the legal fees. If you are able to take some of the work off your lawyer's plate by discussing some issues with your ex-spouse, you will greatly streamline the fees. In a recent case I had, the other lawyer and I were mired in lengthy negotiations regarding how to resolve a particular legal issue. Our clients quickly discussed the issue together, determined how best to resolve it, and instructed us how they wanted it resolved. It was a brilliant example of clients taking the reins of the case and it saved them quite a bit of fees (and it put us lawyers in our places too!).
6. Review your lawyer's account carefully. Yes, sometimes lawyers (and their staff) make mistakes in their billing and it might cost the client.
A final note: Many clients initially ask me how much it will cost them and how long it will take to complete their case. Although I can give clients a very rough estimate of what the cost might be and how long their case will take to complete based on previous cases I have done, each case is very individual. Ultimately, how much a case will cost and how long a case will take to complete is dependent on how much work you do yourself and how willing you and your spouse are to work together to reach agreement quickly and efficiently. What I tell my clients is that I am committed to keeping them informed about their accounts every step of the way and am willing to discuss how the legal fees can be kept down.
In general, lawyers charge on an hourly basis for all work they do on a case for a client. This means that if a lawyer spends a few minutes confirming something on the telephone with you, that lawyer will usually charge you for that time on the phone. (Of course, I know alot of lawyers, including myself, who don't charge for every last thing they do for a client.) It is important for clients to be aware of how much time they are spending on the phone with their lawyer and how much work they are allocating to the lawyer to do. If you want to keep your lawyer's fees down, here are a few tips:
1. Try and "batch" the ideas and issues that you want to speak to your lawyer about and then call your lawyer. In other words, minimizing the number of phone calls and e-mails with your lawyer will save you alot in legal fees. Ask questions and discuss issues in one sitting. Write down the legal advice that your lawyer provided you so that you are not discussing the same issues over and over again.
2. Some lawyers charge to simply play "telephone tag" with their clients or to listen to voice messages left by their clients. It is a good idea to set up dates and times to speak to your lawyer to avoid the "telephone tag" and the corresponding fees charged.
3. Understand that the more work the lawyer is in charge of doing, the more time the lawyer will take and bill you for. If you can volunteer to obtain some documents by yourself or do some non-legal work yourself, you will minimize the fees. Now, the lawyer cannot delegate "legal work" to you or assume that you will research the legal issues by yourself, but there are often items that you can help with.
4. Try and be organized regarding your documents. Ask your lawyer for a list of documents they need for their case, write this list down, and gather the information, and provide it to your lawyer in one batch. Your lawyer will be so impressed! If your lawyer has to nag you for documents, they will charge you for it.
5. Also understand that the more conflictual a case is, the longer it takes to resolve, and the higher the legal fees. If you are able to take some of the work off your lawyer's plate by discussing some issues with your ex-spouse, you will greatly streamline the fees. In a recent case I had, the other lawyer and I were mired in lengthy negotiations regarding how to resolve a particular legal issue. Our clients quickly discussed the issue together, determined how best to resolve it, and instructed us how they wanted it resolved. It was a brilliant example of clients taking the reins of the case and it saved them quite a bit of fees (and it put us lawyers in our places too!).
6. Review your lawyer's account carefully. Yes, sometimes lawyers (and their staff) make mistakes in their billing and it might cost the client.
A final note: Many clients initially ask me how much it will cost them and how long it will take to complete their case. Although I can give clients a very rough estimate of what the cost might be and how long their case will take to complete based on previous cases I have done, each case is very individual. Ultimately, how much a case will cost and how long a case will take to complete is dependent on how much work you do yourself and how willing you and your spouse are to work together to reach agreement quickly and efficiently. What I tell my clients is that I am committed to keeping them informed about their accounts every step of the way and am willing to discuss how the legal fees can be kept down.
Thursday, May 29, 2008
A Kinder and Gentler Marriage Contract by Philip Epstein
Have a look at this article by prominent Toronto family lawyer Philip Epstein:
http://canada.lawyers.com/lawyers/A~1038924~/A+KINDER+AND+GENTLER+MARRIAGE+CONTRACT.html
The article talks about how lawyers and clients should negotiate cohabitation and marriage contracts in order to avoid misunderstanding and upset during the process. In the same vain that collaborative practice advocates that clients and lawyers do all negotiation in the context of four-way meetings, Mr. Epstein suggests that marriage contracts should also be arrived at in the same manner. The traditional process is to have a client's lawyer simply draft up an agreement and then send it to the client's spouse and his/her lawyer for review. The difficulty here is that the spouse's lawyer's instinctive reaction is to make changes to the agreement. (How else do lawyers justify their existence??) As Mr. Epstein writes, it is "far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting."
http://canada.lawyers.com/lawyers/A~1038924~/A+KINDER+AND+GENTLER+MARRIAGE+CONTRACT.html
The article talks about how lawyers and clients should negotiate cohabitation and marriage contracts in order to avoid misunderstanding and upset during the process. In the same vain that collaborative practice advocates that clients and lawyers do all negotiation in the context of four-way meetings, Mr. Epstein suggests that marriage contracts should also be arrived at in the same manner. The traditional process is to have a client's lawyer simply draft up an agreement and then send it to the client's spouse and his/her lawyer for review. The difficulty here is that the spouse's lawyer's instinctive reaction is to make changes to the agreement. (How else do lawyers justify their existence??) As Mr. Epstein writes, it is "far better to meet and exchange ideas and exchange concerns. Then, at the end of that meeting, someone can undertake to circulate a draft that reflects the concerns raised at the meeting."
Subscribe to:
Posts (Atom)