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.

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

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

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.

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."