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 family mediation. Show all posts
Showing posts with label family mediation. 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.
Monday, March 7, 2011
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.
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.
Friday, October 8, 2010
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
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
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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