What About Men? Understanding "Value" Beyond the Pay Cheque

Our laws relating to alimony or spousal support have evolved greatly in the past 20 to 30 years - primarily, or rather, almost solely in response to a deeper understanding and appreciation for the rolls that women play in a marital relationship.  Women who are employed part-time, or who stay at home full-time to assist in raising children are now understood as making significant contributions to the marital partnership - albeit often not in a directly financial sense.  Beyond that contribution, we also have a much greater appreciation for the negative impact upon career paths often experienced by women as they subsume their career goals for the benefit of the marriage and the family - and this appreciation by society generally, and the courts in particular, has resulted in a heightened appreciation for the place that spousal support plays in the resolution of a family breakdown.

As it should.

However, it is perhaps time to stop to ask, "What about men?"

Often acting in a stereotypically stoic fashion, men enter into negotiation of family law issues unable or unwilling to express the impact of divorce and family breakdown upon them.

And this can lead to greater difficulty in resolving those issues, in particular, the issue of spousal support.

To be certain, more often than not, the career path of the male partner continues with only marginal impact related to marriage or birth of their children.  While men may have become more involved parents, maternity leave for men is rare, and extended full-time parenting by men is rarer still.

This often results in the courts and, yes, even collaborative professionals downplaying or even ignoring the underlying impact of a marital breakdown upon the male partner in a relationship.
We understand, now quite clearly, that it's not "just about the money" when discussing spousal support for women.  It's also about understanding and acknowledging the value and the commitment that they brought to the relationship.

So then, we must also take time to understand that, for men, it's also not "just about the money" when discussing their obligation to pay support.

Men are, typically, less likely to express their emotional connection to their earnings and their employment.

And, sadly, lawyers and judges are also less likely to understand and consider that emotional connection.

For if we acknowledge that to a great extent, a mother's value in the relationship was the rearing of the children and the tending of the home - we, implicitly, ascribe the primary value of the father to the financial contribution he makes to his family's well-being.

What does that mean, post-divorce?

Well, an effort to potentially equalize income, in whole or part, may suggest that his effort in achieving that income has little value.  Often we hear men talking of an impression by the court or their spouse that, "money grows on trees." This is not simply a desire, I would suggest, to conserve their income for themselves.  It is also a desire to have someone show respect and understanding for THEIR contribution to the marriage...  for the reality that their pay-cheque isn't just given to them, but takes effort and commitment just as significant as the effort and commitment that a full-time home-maker has to tending to the home and children. 

A man's career and income is connected, strongly, to their sense of self and their sense of value in their marriage and society.  And a simple parsing of that "value" without a discussion of the commitment to attain that value and the emotional and psychological connection of a man to his income and his employment will make negotiation of spousal support much more difficult.

As we often hear, "it's not just about the money".

And it's not.

So, to facilitate a fuller discussion of "values" and "interests", take some time to talk about and encourage recognition for the husband's connection with his income beyond the dollars and cents.  Encourage an understanding and respect that when he got out of bed every day and went to his jobs, that required a commitment to his employer and his family.  And that asking for that income to be shared is more than just asking him to share his pay cheque, it's asking him to continue to share "who he is".  An expression of understanding and appreciation for that fact will, I suggest, make it easier for him to continue that commitment to his family, post-divorce.

Collaborative Divorce: Moving Towards Greater Efficiency

Collaborative Divorce is not magic.

Collaborative Divorce is not a faith based process.

With the greatest of respect to all organized religions, Collaborative Divorce is not a religious movement.

Why make these statements?  Because I'm not completely certain that collaborative professionals and their clients understand this completely.

Collaborative Divorce requires commitment, and honesty, and openness, and it also requires an understanding that it can and often does fail.

And I make these statements not to weaken the process - but to strengthen it.  Because as professionals or as clients, we need to understand that the process itself will not succeed without our effort and our attention.  Too often, I fear, clients and professionals enter the process believing that if they just spend enough time and talk enough, answers and solutions will magically appear and an agreement will fall down from the heavens onto the table between them.

Sorry to burst your bubble - but it won't.

So.

Then.

We endure meeting after meeting - talking about interests and concerns, and the fees increase higher and higher, and before you know it - the dynamic in the room seriously changes.

Because now  there is suddenly a big gun to the head of the participants - in the form of tens of thousands of dollars in fees having been spent that, if the process is abandoned, will largely be wasted.

And if you're not paying attention, this creates leverage.  It creates the ability of one party - particularly if the costs haven't been shared, to use the leverage of wasted money to exert pressure for the other party to accommodate their "interests" disproportionately.

And we, as Collaborative Lawyers, do ourselves, our clients, and the collaborative process a great disservice if we don't recognize and work towards responding to this problem.

How?

Well, firstly, by making the process efficient and productive.

Assure your clients are doing the work required to provide information and disclosure in a timely fashion.  And if they are delaying or appear to be less than open and candid, having an honest conversation about your ability to withdraw from the process if they aren't showing a real commitment.

Assure you have candid and honest conversations with your fellow counsel if you feel THEIR client is doing the same - again, discussing with your own client that sometimes, ending the process is preferable to allowing it to be abused.

Assure that financial and child experts are likewise being used efficiently and properly. 

I recently encountered a file where disproportionate time and expense was incurred to educate the less knowledgeable party regarding finances - only to have yet another expert hired to "explain the explanation".   More fees, more delay - and no movement towards resolution.

The collaborative process is, indeed, a process which continues to serve the needs of thousands of parties in conflict - however, it is also showing it's cracks - and it is up to all of us who value the process to recognize those cracks and to apply our effort to repair them.

Or you could just cross your fingers and throw salt over your left shoulder.

For fellow Collaborative professionals, clients and anyone dealing with divorce, Gary Direnfeld provides us with an excellent perspective on parents who find themselves hating each other and how that might impact their children.

I think the article is so timely that I decided to reprint it (Gary was kind enough on his site: YOUR SOCIAL WORKER, to allow permission to reprint the article as a handout or newsletter).

Thank-you Gary!

What’s a kid to do when parents hate each other?

Sometimes the animosity between separated parents is so thick, you can cut it with a knife. In such cases both parents deflect blame on the other while denying or minimizing their own contribution to conflict.

In some instances the allegations of both parents are unfounded. The parents are like oil and fire and simply do not get along. They both may be hurt for the demise of the relationship. They may feel embarrassed for the breakdown and need to vilify the other. Each stakes out the position of being hard done by the other thus gaining the sympathy of friends and family.

In other instances mutual allegations are founded. Both have in fact acted untoward. Both have acted poorly although not abusively. Yet, neither takes responsibility and both use the transgressions of the other to legitimize their own.

Pity the children whose parents are so locked in mutual despise. The child becomes the battleground. Each parent begrudges the child’s relationship to the other. Even though a parent may hold their tongue, the attitude still exudes. The child lives with their disdain.

The child is between a rock and a hard place. To survive they learn to mask their feelings. To avoid the disapproval of their parents they align with each parent through negative comments about the other. So when with mom the child tells bad stories of dad to gain mother’s approval and minimize tensions with her. Then with dad the child tells bad stories of mom to gain his approval and minimize tensions with him. Sadly though, the strategy only feeds the conflict between the parents as they feel more justified in their position with the new ammunition delivered by the child. Thus the parental conflict escalates and the child is subject to greater hostility, particularly during child custody disputes.

Eventually the child breaks down under the strain of conflict between despising parents. The child’s distress may take the form of school related problems, anxiety, depression, bullying, victimization and even physical complaints such as headaches and stomachaches. Because of the pre-existing parental animosity and then stories of the child, both parents blame each other for the child’s distress. Both parents present self-righteously in their position and both parents are remarkably defensive towards any insinuation that their behaviour may be contributory to the child’s distress. Both parents present with a profound sensitivity to feeling blamed. Discussing their dynamic with one parent can trigger a defensive barrage of the issues of the other parent.

In situations like these, favourable outcomes for the child are best achieved by working with both parents.

The service provider must be well experienced in working with such high conflict situations and the dynamics as described. The approach requires expertise with clinical assessment, mediation, education and reconciliation counselling.

Eventually, the parents must be brought along to understand that their antagonistic tug of war is the toxicity hurting their child. In some situations both parents feel they must let go of the rope at the same time. In other situations some parents take the position that the other parent must go first with regard to making amends or changes. The challenge is to achieve a plan for both parents that encourages a relaxation of the animosity and new collaborative behaviour. Finally, the child needs to be brought into a session with both parents where they demonstrate their maturity by cooperating for the child’s sake and grant permission for the child to love both parents equally.

One never knows at the outset, if one or both parents can muster the maturity to take responsibility for their contribution to conflict. However, there is a secret to ending tugs of war… Only one side has to let go. The question is who is going to step up first.

What's a kid to do? Send both parents for help!

 

Gary Direnfeld, MSW, RSW
(905) 628-4847

gary@yoursocialworker.com
www.yoursocialworker.com

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert on child development, parent-child relations, marital and family therapy, custody and access recommendations, social work and an expert for the purpose of giving a critique on a Section 112 (social work) report.

 

Say "Hello" To Canadian Collaborative Practioners on LinkedIn

Well. 

The Canadian contingent at the recent IACP Conference in Chicago was loud and proud last week-end.

Of course, in addition to excellent conference speakers, I did have the opportunity to visit some of the more historic landmarks of Chicago...

During the conference I had the good fortune to gather with my fellow Canadians at the "Rock the Block" party on Friday night, which as you might expect, was closed down by the Canadian contingent.  And, like any good Canadian gathering, there was hockey, beer, Caesars (we smuggled in copious amounts of Clamato) and Smarties and, the highlight, a Canadian content quiz with our own version of Alex Trebec, Ottawa Collaborative Lawyer, Chris Arnold...



Taking advantage of the location, Canadian collaborative professionals gathered for a short meeting to discuss Canadian issues in Collaboration, and to continue the connection over this broad country we encouraged all Canadian Collaborative Professionals to maintain the connection via our LinkedIn group, Collaborative Professionals Canada.  To join the group all you have to do is set up your own "Linked In" account and then search for Collaborative Professionals Canada.. and, well, "link in".

Hope to see you all there and to continue the conversation from where we left off in Chicago.

Oh.

And I would be remiss if I didn't plug the newly unveiled International Association of Collaborative Professionals blog, at Be-Fulfilled.org of which, for reasons beyond me, they have included me as one of their featured bloggers.

Connect.  Share ideas, ask questions - join the conversation!

If You Thought Family Law Wasn't Confusing Enough Already...

Well.

How many of us have found the resolution of a family breakdown to be a complex and difficult task?

Well, if it's difficult with two people - imagine the parameters of discussion and potential disagreement when the union is a union of three people.

No.

We're not talking about a a fundamentalist Mormon sect.. we're talking about an expansion of the liberal notion of "marital relationship" in Brazil, where, today, we read that a civil union was recognized between two women and a man who had already been living together, with a three-part joint bank account, for three years.

According to Public Notary Claudia do Nascimento Domingues, who confirmed the union, the man and two women should be entitled to family rights.  According to Ms. Dominques, "there is nothing in law to prevent such an arrangement."

Well.

How about that?

And what does that have to do with Collaborative Law?

Well, firstly, I suppose, should that union not work out, it may well be that a collaborative response to resolving differences might be more able to address the unique issues that the law, to this point, been required to grapple with.

But, beyond that, it reflects the reality that parties in interdependent relationships are not "cookie cutter" versions of every other relationship, and just as society is evolving to allow parties to organize their lives on THEIR OWN TERMS - perhaps, a process which is also controlled and effectively created BY THE PARTIES would be the best model to respond to difficulties or disagreement in that relationship.

Just sayin'

From Georgialee Lang: Is Collaborative Law a "Wolf in Sheep's Clothing"

Hello Little Red Riding Hood..   Welcome to Court!

Well.

In a recent article - August 3, 2012 in Canada.com - Georgialee Lang suggests that clients be wary of Collaborative Divorce, suggesting that it's a "wolf in sheep's clothing."

Georgialee appears to be a family lawyer of some significant experience and skill practicing in British Columbia, and, as many lawyers who criticize the formal Collaborative Process, her article critiquing the process ends with the now common refrain, "I have always practiced family law collaboratively, I just didn’t adopt the tag."

The theme of her article, essentially, is that:

a) Collaborative Divorce misrepresents itself:

"Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts.

It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts”, one can easily imagine spiralling costs. In one case involving a short marriage with no children, the collaborative process cost a couple $55,000.

This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst."

b) Collaborative Divorce is just another way of strong-arming:

"But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. In one respect they are like “wolves in sheep’s clothing” as they implement strategies usually reserved for “bulldog” lawyers, including the dreaded “Nothing is settled until everything is settled” and “We refuse to counter”, driving one party to negotiate against him or herself."

So.

What do we, as Collaborative Lawyers, do in response to this?

Well.

First thing we ought not do is ignore possibly valid criticism.

We should not be marketing or describing collaborative divorce as a "money-saving" process.  It could be.  But then so could arbitration, or mediation, or flipping a coin to determine custody of a child.  The value of any choice should not be how cheap it is, but, rather, how effective it is.

And that leads to a second potentially valid critique.

If we are not careful, a collaborative divorce can become overly prolonged, inefficient, and, in the bargain, excessively expensive relative to the results obtained.

The clients and the lawyers must be diligent in assuring that collaborative meetings are productive, that they are finding results for the parties, and are not misusing the process to either prolong, unnecessarily, discussion without purpose or creating added expense without results.

Particularly in a case where one party is paying all of the costs of the process, there can be abuse.  The clients and the lawyers should be alive to that concern, and be prepared to address it, if need be, and, in an appropriate case, to end the process where progress is not occurring.

Beyond that, I take some offense to her suggestion that "make no mistake... collaborative lawyers are still out to get the best deal they can for their clients."  If the suggestion is that collaborative divorce is just another way of getting "the most dollars possible" or paying "the least dollars possible", in my opinion, that's clearly wrong.  And it either betrays an ignorance of the process on Ms. Lang's part (my guess), or perhaps an effort to "protect turf" by a litigator.

I have to say, I have encountered collaborative files that have become positional.  Files where the collaborative lawyer, while trained, didn't fully make the leap that positional bargaining has no place in a collaborative file.  Who didn't understand that the traditional approach of seeking to threaten, cajole, or manipulate to obtain the greatest amount of financial benefit (or time with children) is overly narrow in addressing a client's interests, and, in general, has a tendancy to create an atmosphere in which clients are more likely to make poor decisions about their settlement options.

But those experiences have been very, very limited.

The vast majority of collaborative files, in my experience, have lawyers who have comfortably removed their own interest in the outcome.  In other words, they are not "trying to get everything they can possibly get" for their clients.  They are invested in empowering their clients to fully and completely understand their options, their legal status in the matter - and the "big picture" which will, most certainly, include issues relating to entitlement to property and support issues and how that will impact their future.  However, the collaborative process allows parties to expand their view of what their full interests are - including the importance of considering the impact of their choices on their children and on themselves - in which money received or paid is perhaps only one of several factors to consider.

So.

A "wolf in sheep's clothing"?

Hardly.

But, as a litigator of some 26 years experience, I can guarantee you one thing: the court system is DEFINITELY no place for little red riding hood.

Finding a "Real" Collaborative Professional

For clients, and collaborative professionals, this morning I received a note from the IACP advising that they have received information that IACP members are being solicited to advertise in an on-line directory with Mediate.com and CollabLaw.com.  A copy of the notice is as follows:

Dear Robert,

We have just learned that many IACP members have been or may yet be contacted by Mediate.com/CollabLaw.com with a commercial solicitation for placement in an on-line directory ostensibly dedicated to Collaborative Practice. Please be assured that IACP did not release your name or contact information and had no involvement with or consultation into the content of this offer or this directory. IACP will never release your name or contact information for any purpose to any vendors. Unsolicited commercial email can be reported as "spam" to the marketing company through which the e-mail was distributed.

We are concerned regarding this directory as it apparently lists anyone who has paid the fee to be included, whether that professional actually offers Collaborative Practice services or not. There are many services divorcing couples could consider. And, we believe the professional community who serves these couples owes them clear information. Advertising oneself as a Collaborative practitioner when, in fact, one does not offer Collaborative Practice services is misleading to the public and does a disservice to consumers who are sorting through complex issues during troubled times.

We urge IACP members to be very clear in all the ways and through all the means by which you educate the public about Collaborative Practice.

With best regards,

Lynda Robbins, President

Talia Katz, Executive Director

The concern raised is that there is no need to verify training in Collaborative Law to belong to the service, such that those coming to the site should be aware that these sites do not necessarily guarantee that the person being contacted is, in fact, fully trained in the process.

As such, while lawyers, financial professionals, or mental health professionals are free to use the service, if desired, those who are seeking to find someone to assist them in Collaborative Law may be advised to either search for practitioners under the IACP website, found here:

http://www.collaborativepractice.com/_loc.asp

Or, alternatively, search their local area for their State or Provincial Organizations who may have  a similar list of TRAINED collaborative professionals, which, for Alberta can be found here:

http://www.collaborativepractice.ca/find-a-professional/

Collaborative work is not easy, and it's not simply a matter of trying to be amicable.  Many practitioners have taken many hours of training, beyond simple interest-based negotiation - and those seeking out Collaborative Professionals are well advised to take care in seeking out the most qualified professionals possible.

Stu Web - Collaborative Visionary is Passing on the Torch

Well.

Today I received an email from Ron Ousky, via the amazing Collaborative Law Listserv, advising that tonight, in Minneapolis, Minnesota, there will be a retirement dinner in honor of the great Collaborative Law visionary, Stu Webb.

After giving so much of himself to give the world a new and better way to resolve legal problems, Stu is apparently passing the torch to the rest of us to continue the conversation, to the great benefit of so many people, particularly those struggling to resolve differences in Divorce and Family Law matters.

For an excellent description of where this process came from, best to hear it from the "horse's mouth" so to speak:

Tom Cruise and Katie Holmes - the Upside of Collaboration

Tom gets down off the couch,

and resolves his divorce in an amicable, sensible, fashion.

Go figure.

Well.

The tabloid dream.

This was the Tom Cruise/Katie Holmes divorce.

It had all the makings of a never-ending make-work project for the gossip magazines, didn't it?

The highest-paid movie star in the world, Tom Cruise, vs. Hollywood beauty, Katie Holmes.

The Catholic v. the Scientologist.

The demure young woman v. the couch-jumping crazed superstar.

National Enquirer, the Star, and CNN..  all the gossip rags were salivating over what was sure to be a nasty public bloodletting where all of the embarassing little secrets of what brought about the demise of the TomKat marriage would be finally exposed for everyone to see.

Except that's not what happened.

Yesterday, we hear that only 11 days after Katie Holmes filed for divorce, it was settled.

No lurid public hearings.

No public exchange of allegations and justifications.

Just an amicable, private resolution of their marriage dissolution.

How could this happen?  How could the public be denied the ability to cheer their good guy (or gal) on through months and months of public battles?

Well, apparently THIS is how:

"We want to keep matters affecting our family private and express our respect for each other’s commitment to each of our respective beliefs and support each other’s roles as parents," they said.

Really?

You wanted to keep your family matters private and express respect for each other's roles as parents?

You wanted your child to not experience, first hand, the trauma of a nasty and brutish divorce?

Go figure.

Now.

While the TomKat divorce was not, it appears, a formal collaborative divorce resolution, it does illustrate the great benefit of entering into a committed effort to find a solution, without recourse to the antiquated and uncertain litigation process.

Two adults, it appears, found a way to resolve their differences in a private process to their mutual benefit and to the great benefit of their child.

Well done.

Now.

Rest assured.

If someone had a good look at the details of the divorce, I can guarantee you that there are scores of hot-shot divorce litigators who would shudder at what was "left on the table".

Tom - you gave up parenting too quickly, you could have obtained a shared custody order - your settlement denied the validity of your faith as against the Catholic faith.. you should have fought to have your beliefs respected.

Katie - you could have leveraged the validity of the prenuptial agreement to obtain a more significant settlement.  And how could you possibly know that Tom had disclosed all of his income and assets without weeks and weeks of depositions and forensic financial analysis?

Sure.

And it might even be true.

Maybe Tom could have succeeded in obtaining an order preventing his daughter from attending a Catholic school.

Maybe Katie could have obtained more money.

But at what cost?

At what risk?

Are either of them going to be going to a soup kitchen anytime soon?

Would their daughter have been a happier child if her parents had argued over custody and religious education issues for months and months - only entrenching anger and bitterness between them?

Hardly.

This is the best example of what is possible if people put anger, pain, and greed aside, and put their child first, and put a value on privacy and speedy resolution.

This is the best example of why couples faced with divorce, like Tom and Katie, MIGHT want to look into the Collaborative Divorce process.

The Folly of Hiring Lawyers to be Mechanics

As a lawyer, it's my opinion that your car has a torqued-out bindle rotor..

I had a Collaborative file a while back, which, unfortunately, didn't work.

We moved through he parenting and property division like a knife through butter.

Child Support - no problems.

And then we came up against the alimony wall.

We did all the things we're trained to do.. we tried to focus the parties on the common elements of the discussion - avoiding the risk of litigation, understanding the need for both homes to have standards of living which would allow the children a similar experience with both parents.

We reviewed budgets, we discussed future needs.

We discussed how the parties felt about the issue of support and what roadblocks might exist which made it difficult for them to find compromise.

We reviewed BATNA and WATNA.

And, oddly enough, counsel was very close to agreement on those parameters - and the "most likely result" of a litigated outcome.

Husband was agreeable to compromise his position to accommodate the "most likely" outcome.

And, still, we failed to find resolution for our clients.

I reached out to other expert Collaborative counsel for advice - to no avail.

And, as a result, the Husband requested that the Collaborative Process be terminated - and it was - about a year ago.

So what happened?  Why did we fail to find a solution to our clients' needs?

Why did we spend thousands of dollars, and still find ourselves without resolution?

At the end of the day, it appeared that there was an emotional aspect to the discussion that we couldn't overcome.  The Wife perceived the Husband as abandoning his family for another woman, and Wife perceived that even with a 40% allocation of the parties' income, plus child support, the Husband's lifestyle would still exceed her own, having regard to the income of the Husband's probable future partner.

So.  Why am I sharing this "failure" on my part?

Well, if there was a failure on the part of counsel, it was, I think, in not fully understanding the depths of the Wife's emotional strain, and not pressing the parties to counsellors to address that aspect.

To be sure...  the process may well have still fallen apart.  But I think we made a mistake that I see fellow counsel grapple with quite often - which is allowing their clients to "save money" by not getting counselling where it is necessary to facilitate the process.

I've had this discussion with many other counsel to whom I have recommend the "team approach" of Collaborative Divorce.

The response I am often met with is, "It's difficult enough for my clients to pay me, let alone hiring two more professionals."

My response.  The job of a lawyer is like being hired to drive your client from Lethbridge to Medicine Hat, or Calgary, or Edmonton, or Grande Prairie.

It takes a while, the lawyer is hired to help their client navigate the journey through the laws and issues their clients encounter along the way.

We, as lawyers, take on that task, confident of our ability to drive the vehicle, to navigate the course, and to avoid collisions along the way.  This is what we do as lawyers - and we charge a significant fee for that effort.

Now.

Imagine that our vehicle has some serious mechanical problems.

We are not trained as a mechanic - we are trained as a driver.

So then...

You could hire a mechanic along the way to examine and fix underlying difficulties with the vehicle, at an hourly rate of about half of what you would charge.

Or.  You could just keep driving, but knowing there was a high probability that the vehicle problems were going to get worse. As the vehicle begins to break down - you could "band-aid" solutions, for which you have no training, charging your clients double what the mechanics charge for service which is, well, grossly inadequate to the task.

Which choice appears to be more economical, in the long run?

Speaking from experience in the file referred to above, we tried to use our legal skills to band-aid an emotional problem, and the, ultimately, the collaborative vehicle just died.

This could be you.

Don't be either blinded by the false economy of not hiring proper assistance, or your own false pride in your own ability to "fix a broken car."

Take the benefit of my mistake - and don't make it yours.

Collaborative Law - Get the Word Out

Collaborative Law..  lawyers practicing in the area are quite convinced of it's potential to help many families work out their legal issues in a relationship breakdown in a manner which is effective and respectful.

But, oddly enough, many lawyers who pursue a practice in Collaborative Law aren't the best promoters of the practice.  Being focused on finding the best solutions for their clients, they sometimes eschew spending time to publicly promote themselves and their practice relying, largely, on word of mouth of their clients to "spread the word".

Most clients, however, have nothing to judge their Collaborative experience against.  They haven't been divorced before, so they haven't had the pleasure of enduring months and sometimes years of litigation, including what might be fairly described as the legally sanctioned verbal flogging called pre-trial questioning and cross-examination in trial.

As lawyers, having seen the comparison first hand - we can often recommend to our clients the benefits of avoiding litigation where possible - but for the client, even going through Collaborative divorce may seem harsh and stressful.  So - their promotional benefits may not be as clear as we, as lawyers, might suggest.

So.

Then.

How important is it for lawyers to put their humility aside a bit, and to speak a little louder that, yes, we are here, and yes, we believe that Collaborative law and Mediation are processes that you should seriously consider should you find yourself in the midst of an unfortunate relationship breakdown, either in Divorce or the breakdown of a Common-law relationship.

For an excellent example of a colleague who has made the effort to promote not only her own practice, but the practice of Collaborative Law generally, take a look at Beryl McNeil's youtube post:

Legal Advice in Collaborative Divorce: Dangerous Minefield

Always a difficult topic for Collaborative Lawyers, the issue of how to provide legal advice without creating positional confrontation is a difficult one.

Particularly in the area of spousal support.

We are all aware of the spousal support guidelines in Canada.  They seem like a nice, handy way of giving a client some knowledge of the range of spousal support they may be entitled to.

However - beware.

Clients come to their lawyer in an heightened level of anxiety and insecurity.

Their relationship has come to an end, and whether they are husbands or wives, they are very afraid of the uncertainty inherent in the process, and will gravitate to anything that looks like a "hook" that they can hang their expectations on - and if the lawyer is not careful, or worse, is lazy, they may pull out their Child View or DivorceMate and do a quick print out for the client at their initial interview and say, "there, that's how much support you're going to get."

Problem is, first of all, that's just wrong at law.

The Spousal Support Guidelines are not binding upon the Courts, and, my recent research in that area, at least in Alberta, shows that at higher levels of income, the Courts are in fact unlikely to apply the guidelines.

So.

Strike one for the lazy lawyer.

Giving bad legal advice, creating a false expectation, and making it much more likely that the Collaborative process is going to fail.

Beyond just being wrong, however, guiding the client to a position at the outset of the process takes away from the whole essence of the process in that it prevents a client from opening their mind to other options that may or may not be premised on maximizing their monthly spousal support payment.

Which isn't to say that we should abandon our obligation to provide proper and complete legal advice.

But it's a question of how and when.

My advice?

Explain to the client the concept of spousal support as expressed by our Supreme Court of Canada - and avoid providing the client with hard numbers of what they can expect.

Particularly when "income" of the parties has not been established.

Often spouses over- and under-estimate their income and their spouse's income.

Often spouses fail to consider their own obligation to work towards achieving self-sufficiency - such that they may have income, or may have income imputed to them at the end of the day.

So - rather than set yourself up for an embarrassing failure - allow the spouse broad general advice at the outset, and then work, over the course of the process, to narrow the issue through discussions of needs, of means, and, in due course, of the law as it may apply to those now more established understandings.

Some time ago, I was involved in a Collaborative file where a wife had a pre-determined idea of her "entitlement" based upon her own research.  During the course of the file, it was apparent, however, that she had failed to consider the impact of settlement upon the husband's income, she had failed to consider income that would reasonably be imputed to her resulting from the settlement - and when she still clung to the mid-point on the spousal support guidelines, ultimately, counsel jointly provided recent case law to show that it was improbable that the Courts would award a support at the mid-level of the Guidelines.

She clung to her original position like grim death.

Counsel jointly discussed the likely outcome a failure to find a compromise - including the costs of litigation, the potential costs awarded against an unsuccessful litigant, and the time it would take to find that resolution.. and still, she was firm in the position she established for herself at the first meeting.

The Collaborative process failed.

The parties proceeded to litigation.

The wife's expectations were, no surprise, not met.

Now - in fairness to fellow counsel - they did not create the expectation - but the case illustrates the difficulty of positions being established early in the process.  So don't encourage it.  You can explain to the client that the Guidelines exist, you can explain that they can impact the Court - but are not binding, and may even explain in very broad terms what the range of guidelines provide, but also be very careful to also indicate that as they are not binding, the Court - which is the final arbiter if a deal can't be found - may award amounts less than Guideline amounts - so, better to discuss the overall picture of the parties specific to their means and needs - to find a solution which appears acceptable to both parties - which may or may not coincide with the Guidelines.

And for non-lawyers reading this - the message?  Do not be seduced by the Guidelines.  They are "suggestive" and are not in any sense "binding".   Enter into discussions with a view to finding a final outcome that appears to result in a resolution that appears to establish a reasonable balancing of ALL parties' interests - all factors being considered.

Divorcing? Take Care of YOU First

Well.

Sadly, the New Year brings an influx of new clients to this Divorce lawyer's office..  presumably, people who either did not want to break up during the Christmas season, or, perhaps, who entered the New Year committed not to be in an unhappy situation this time next year.

But whatever the reason, Divorce is never easy.  It is an emotionally draining and traumatic experience for most couples going through it.

Yet, while we intuitively know this, many clients and in fact many lawyers, ignore the need to treat their emotional injuries resulting from divorce.. often to very unfortunate results.

This past year, a very decent individual who was a client of mine clearly could not provide me with the instructions necessary to serve his best interests.  Literally tens of thousands of dollars in legal fees, primarily, in my opinion, a result of seeking to redress the pain and trauma relating to the change in the relationship between him and his wife post-divorce.  When he demanded that I bring yet another in a long list of applications - which I felt would simply increase my fees, but fail to move him towards resolution - I finally ceased to act. 

I often tell my clients, collaborative and otherwise, I am the taxi driver in this relationship.  I will tell you my advice regarding which route is shortest or quickest, I might recommend that certain stops along the way be made or not made.. but ultimately, I take instructions from the client.  It is their life, their assets, their children... not mine.  And as such, they have to give me instructions.

And if the client is emotionally damaged, and is either overly aggressive or excessively passive, they are not able to fully participate in the process to the best of their ability.

As such, my clients are advised to obtain counselling.

And, fortunately, in the collaborative process, we have the option of using "coaches" for the parties to assist them in being effective in the process and to counteract some of the emotional baggage that often drags down a divorce.

So.

Even if you feel like it is YOUR SPOUSE who needs a counsellor.. or perhaps ESPECIALLY if you think your spouse needs a counsellor, get yourself some counselling through the divorce process.  It will help your lawyer, and will therefore help yourself obtain an optimal result, often to significantly less expense.

Supreme Court of Canada and Family Law Roulette

If there wasn't enough reason to avoid recourse to the judicial system already, on December 21, 2011, the Supreme Court of Canada gave us yet another example of why the judicial system has become so difficult to predict.

There was a time.. oh it seems like just yesterday, when the Supreme Court of Canada treated adults as, well, adults.. and respected agreements entered into between them like any other contract, holding in a series of decisions loosely referred to as the "trilogy" (Pelech, Caron, Richardson) that where parties have entered into an agreement regarding support, particularly where that agreement provided an "end date", the Courts had to respect the rights of individuals to establish, by agreement, the terms relating to their divorce.

Then, in 2003, the Supreme Court did an about face, in the case of Miglin, and said, well, those agreements had to be given significant weight, but did not oust the jurisdiction of the Courts to vary those agreements where the agreement was not "in substantial compliance" with the overall objectives of the Divorce Act.

What does "substantial compliance" mean?  Well, mostly, what the judge things is fair, taking into account the considerations set out in the Divorce Act.  And if you ask 50 judges, you will get most certainly, 50 different standards of fairness, as they apply their legal and life experience to vague and ambiguous notions established in the divorce act of "economic advantage or disadvantage" resulting form the marriage, of "economic hardship" resulting from the marriage breakdown.. and other facts set out in section 17. 

The Court did, however, state that agreements properly entered into should be given deference by the Courts and should be interfered with only in rare circumstances.

Now, with the latest decision of the Supreme Court of Canada in L.M.P. v. L.S., the Courts have determined that an agreement is just one factor to take into consideration, given no more weight than any other factor by the Court.

In other words, well, it's a free-for-all.

And here's the problem with uncertainty.  While parties are free to seek to obtain an Order which may be at odds with their agreement, there is a cost.

Quite recently, I had a client who was subject to a support review after 4 years of divorce.  Her husband, in my opinion, was unreasonable, and after a 20 year marriage and two children, felt that 4 years was enough, and sought to terminate support.  At the end of the day, my client was successful, and had her support extended for 8 more years.  She was awarded costs of the application of $2,000.00.  The problem?  It took over one year to complete the review, and her legal fees were over five times that amount.

While many people will laud the Supreme Court of Canada for it's steady march towards a system of "palm tree justice" where each case will rise or fall on their facts, the uncertainty that such a decision creates is not without a significant and real cost.

"Fact" based justice is extremely troubling, particularly in family law, where parties often see their respective positions as unassailable.  And then find that even where they succeed, that "success" comes at a high price, both in terms of financial cost and time and stress related to litigation.

And this comes from the perspective of the "successful" litigant.

Imagine the perspective of the husband in my case.

Often, when parties come to me for advice respective whether or not to litigate, I provide them with a reasoned opinion taking into account the leading decisions of our Supreme Court of Canada and our Court of Appeal, together with a general perspective of the current attitude being presented by our lower courts.

And then I tell them, that, notwithstanding my brilliance, at the end of the day, it's a game of roulette.  Only in very rare cases do I suggest their odds are better than 70/30.

And then I say, would you, in your financial circumstances, be willing to make a $10,000.00 bet on a roulette wheel, if you knew that there was a 30% chance you would lose it all?

The Supreme Court of Canada has just increased the odds against the players being able to predict their outcomes.

And that's where negotiated resolution comes in.

Mediation.

Collaborative divorce.

Keeping control over outcomes in YOUR hands.

It's your choice..   are you feeling lucky?

Collaborative Divorce: Heroes and Victims

Heroism.

It's an often misused and maligned concept.

We use it to refer to characters in comic books and movies.  Or, more often, we don't use it at all, and begin to believe that it doesn't really exist in modern society.

But I see it every day.

I see it in the client who has been married for 30 years, having never worked outside the home, and while working through her divorce, she returns to school at 50 to commence her second career after homemaker.

I see it in the client who has his children taken far away by a vengeful and bitter ex-spouse, but who perseveres anyway, who comes to my office cheerful and upbeat - with a mission to work to make things better, but who still sees the positive parts of his life even as he struggles to assure his children that he hasn't given up on them.

I see it in Collaborative divorce clients who dare to meet, face to face, with someone who has broken their heart and their trust - and who work to understand the point of view of the person who has hurt them, to find solutions that are not based upon retribution, but based upon mutual respect for a need to find an acceptable solution that works for both parties.

These people dare to fight against being seen, and seeing themselves, as victims.

And that makes them heroic.

I can't take credit for the need to examine our lives in these terms - that credit would go to Susan Neiman- author of an incredible book I read a short time ago, "Moral Clarity: A Guide for Grown Up Idealists". 

In her book, she discusses the concept of victims and heroes, and she concludes that we spend too much time recognizing victims and too little time recognizing the accomplishments of those who overcome victim-hood.

She suggests this is, in part, based upon our own insecurities of what WE would do in similar circumstances:

"..if heroes are an inspiration, they are also a challenge, and it's a challenge we'd often prefer to forget.  The knowledge that some people have made more out of their lives than you have can be unwelcome."

Better to celebrate victimhood, to look to others and ourselves and to say, "To succeed in the face of adversity is too hard, too unrealistic..  we should admire the victims in our society and then demand that someone else (not the victim) rises up to address their inequity."

But in doing that we do a disservice to the victim - because we assume that the adversity they have been forced to endure leaves them impotent.  That they are weak and helpless - where the reality is that we all have strength within us.  And to diminish the ability of a victim to overcome their adversity is to further victimize them.

Thus is the failing of our current ethos of family law - and, in the bargain, part of the allure and beauty of Collaborative Divorce.

Because inherent in the Collaborative process is the notion that, "Yes, you can!"

We sign contracts saying, "We will not go to Court, we will create our own solutions."

And, in the absence of the massive power of the Courts and the Legislature, our clients do resolve very difficult and painful problems in the breakdown of their relationships - perhaps the most painful and difficult loss we can experience short of the death of a loved one.

And in doing so, something profound occurs.

They learn to recognize their power to overcome.

Where they have children, their children see parents who work hard under difficult circumstances to create solutions - an example which one might be hard-pressed to over-value.

Collaborative Divorce is not easy, it is not painless, and it requires courage and effort to participate.

But our clients who have gone through it, and succeeded - well they already know that.

Which is what makes them heroic.

Collaborative Lawyers - Don't Half-Ass It

I had a very interesting experience yesterday.

I had a new client come see me, and as I explained his process options, starting with mediation and then moving on to tell him about "Collaborative" Divorce..  and he immediately shook his head and said, "I want no part of that.. that's not for me."

Now.

Think about that for just a second.

Here is a guy who is going through divorce, who has never been divorced before, and right out of the gate, his take on Collaborative Divorce is that it's not for him.  And he is adamant.

So.

Being a curious sort, and having learned that lawyers often assist their clients more by listening than talking, I asked him to tell me about his feelings about Collaborative Divorce.

And so, he goes on to explain to me that he has a friend who recently tried Collaborative Divorce, and who spent a lot of money and ended up having to hire a new lawyer and start over again.

And here's the interesting part.

I'm acting for his friend.

I'm the "second choice" lawyer after a failed Collaborative effort.

And as such, I have some insight into:

a) Why Client 1 was unhappy with the Collaborative process; and 

b)  How that impacted Client 2 to seek to avoid Collaborative divorce at all costs.

The bottom line is that, with all respect, the two previous Collaborative lawyers failed to understand and appreciate the need to shift from a litigation paradigm to a collaborative paradigm.

The lawyer for my client made the error of packaging up a "birthday present offer" - you know, more than the wife would ever get at trial, all wrapped up in a nice little bow.  And, of course, the Wife assumed the Husband was trying to take advantage and immediately demanded more.  Which then upset the Husband, as you might expect - and then the process basically fell apart, without any real effort to walk the parties through the factual issues to create a foundation for discussion.

And so, not only do the clients end up starting over to a great extent, but, clearly, their impressions of the Collaborative process are very negative, and, as demonstrated, at least one person they have communicated their disappointment with has formed a very negative opinion - and if we think he is the only one they have "infected", we are dreaming.

So.

Think about that, fellow Collaborative lawyers.

The job you do not only impacts on your client, but it impacts on your reputation, and the reputation of the Collaborative process as a whole.

Don't half-ass it.

Don't let your client's push you to positional bargaining positions, and if the other client does that - hold the reigns on your own client and go back to the start.  Build a factual foundation that allows you to enter into reasonable discussion about resolution alternatives...  and maybe, during a post-meeting debriefing session, discuss the problem with your fellow lawyer.

Walk the walk.

Protect the "Collaborative" brand.

It's worth it.

Divorce: A Problem to Be Solved.. Not a War to Be Won

An excellent article in the New Hampshire Bar Association web site this month on Collaborative Divorce extolling the benefits of Collaborative law to lawyers practicing outside of divorce practice.

Corporate and Commercial lawyers are suggested to perhaps benefit from reducing strain on corporate operations and corporate transactions which often accompany divorce of key employees and officers.

Wills and Estate practitioners are suggested to perhaps benefit from a process which allows their clients greater flexibility and cooperation in planning for devolution of their estates - often with the assistance of the same neutral financial professionals who facilitated a collaborative settlement.

The article, written by Collaborative lawyers, Lisa B. Forberg and Bruce L. Dorner, provides some excellent thoughts on how non-divorce lawyers may wish to consider the benefits of referring their clients to Collaborative lawyers when needed - and for those of us practicing Collaborative Divorce - you may wish to consider sending a copy of this article to fellow corporate, commercial and estate counsel.

Particularly poignant, I felt, was the comment that a divorce might better be considered a "problem to be solved, rather than a war to be won."

Indeed.

Are You "Linked In" With Canadian Collaborative Professionals?

LinkedIn - Reaching Out to Your Peers

This blog has sort of evolved over a short period of time, in my mind, to a blog for the public, providing some thoughts on divorce and family law and how Collaborative Law or Collaborative Process may help those in the midst of dealing with those issues.

At the same time, it also speaks to the professionals involved in the process, including lawyers, financial professionals, and mental health professionals who gather together in collaborative "teams" to find solutions for their clients.

And the work of a collaborative professional is not easy.

It requires dedication and effort to work to find solutions - as opposed to the focused effort of a litigation lawyer - which, in my experience, is actually easier.

So.

To further help Collaborative Professionals in Canada, I have created a "LinkedIn" profile to allow for Canadian collaborative professionals to connect with each other and to "share the load" perhaps, providing a handy tool to reach out to connect to other professionals across this country - and, perhaps, to take advantage of their collective wisdoms to seek out advice when your collaborative file is perhaps in need of a second, or third, or fourth opinion.

So - if you are interested, feel free to join the LinkedIn Group:

Collaborative Professionals Canada

Stop by.

Say hello.

Post a question or comment for discussion, or contribute your wisdoms to existing discussions.

After all, it's about "Collaborating".

The Family Law "Market Value" Approach to Resolution

"So, you say you would like dinner with your daughter this week.. "

Well.

Two weeks ago I was in San Francisco, attending the annual IACP forum on Collaborative Practice.

And, my general response to the forum is that if I can learn one new thing that I carry with me back home, it was a worthwhile trip.

And, true to form, I picked up a few things - most notably, an excellent lunch time talk by author and University professor Dan Ariely on the predictability of irrational behavior.

Very interesting stuff..  particularly from the point of view of the marketing of ideas - what Ariely refers to as "behavioral economics".

Noting that general economic theory is premised on the idea that people will always make the most rational decision when faced with two choices - Arielly shows, clearly, that people will often make irrational decisions in a predictable fashion, throwing some economic theory into chaos.

What does this have to do with Family Law and the Collaborative Process?

Good question.

Well, his speech was interesting enough that I bought his book, "Predictably Irrational", and a very interesting portion of the book talks about the competing influence of social values and market values.

In studies, Ariely has found that given a specified task, predictably, people will work much harder when paid fair value for their effort than they will when they are underpaid for their effort.

The surprising part of the study, however, is that it was found that people will work just as hard and perhaps harder for free, when the basis of the request is a "favor" or a request for assistance based upon what Arielly refers to as "social norms" as opposed to "market norms".

So then.

How does this impact on divorce in Lethbridge, Alberta?  Or Calgary or Medicine Hat, or anywhere for that matter?

Well, consider that in an effort to make the results of divorce more fair and predictable, we have began to legislatively quantify our obligations to assist our spouse and our children.  Child Support Guidelines, Spousal Support Guidelines - and even beyond legislative guidelines, when we take our disputes to Court, we take what was formally a social and emotional commitment to assist our families, and turn them into court directed commitments.

Ariely might refer to this as bringing "market value" to divorce.

And, as Arielly has shown us, our willingness to "go that extra mile", to modify our own interests in favor of another based upon our social norms, can in fact be damaged when we change what was a social norm to a "market value" norm.  To a norm based upon money.  Cash.

So then - consider the difference in the degree of cooperation and assistance between former spouses with children where their respective obligations towards each other have been reduced to court imposed monetary obligations.

According to Ariely, we might reasonably expect that there will be much less willingness to do anything beyond the "market value" established for the respective obligations between the spouses.

And how many of us have seen that, every day, in our practice.

Parents discovering that the nice order for child support becomes the maximum that the other parent is willing to do for their children.  Forget about helping drive the children to their events - "I pay you for that".

Parents discovering that the time they have with their children, when prescribed by agreement, becomes the be-all and end-all.  "Your family reunion?  Sorry, it's MY weekend."

Collaborative Process offers the best opportunity to maintain a social norm between separating spouses.

Where they discuss how they are going to arrange their finances, and yes, come to agreements, but come to agreements that are not prescribed by some arbitrary third party, either the legislature or the Courts.

Think about how YOU would feel, in your marriage, if the obligations between you and your partner were established by Court Order - and how that might impact your willingness to do MORE than Ordered.

Arielly suggests that in society as a whole, we have perhaps moved too far to establish relationships between citizens based upon "market norms".

One might suggest the last place that "market norms" will be appropriate is in the family.

Collaborative Process offers an option to maintain higher value on "social norms" - the sort of obligations between spouses that don't exist when you are together - and can, to a great degree, be maintained after you part.

Collaborative Law - It's About Fear Reduction

Fear.

It brings out the worst in human beings.

Because it literally makes us less rational.  Neuroscientists, studying brain function, have shown that when we are in situations of fear, what is called our "reptilian brain", or our lymbic and primitive subcortical structures become more dominant in controlling our decision making processes.

This part of our brain is often referred to as our "fight or flight" centre - and results in more instinctual and less rational considered conduct during times of great stress - fear or anger.

Our deepest, most considered thinking, comes from our prefrontal cortex - our "rational brain" if you will, and as fear increases, the operation of this "rational brain" diminishes.

So then.

Consider our emotions during a marriage or relationship breakdown.

Heightened fear and anger.

We worry about our worth as human beings, after being disappointed by someone who we placed our trust in for life.

We are fearful over our ability to maintain our relationship with our children.

We are angry over the loss of economic stability inherent in the coming distribution of assets and resources.

Take all of this into account, and if you are not careful, you are building a perfect storm of fear and anger that will often take us to places where calm rational thought is all but impossible..  and we ready ourselves to either take flight or to fight.

Now.

Add to that mix the "adversarial system of justice".

By definition, it is premised on the need for battle - albeit a non-violent battle within a system of decorum and rules.

This is hardly a process designed to maximize the ability of the parties in that dispute to calm down their "primitive subcortical structures", and to engage their higher brain to make the best possible decisions for themselves and, most importantly, their children.

It is a process which, in fact, heightens our fear and our anxiety - because takes control away from the parties themselves, and puts it in the hands of a person who doesn't know them and who they don't know - and provides results which can and do vary wildly between parties of similar circumstances - often to devastating results for one or both parties. 

In light of this reality - it is almost expected that we see stories in our news, such as the following:

"Westchester Man Killed His Wife and Children Before Shooting Himself, Police Say"
October 19, 2011 CROSS RIVER, N.Y. — Late in the spring, Samuel Friedlander, by appearances a successful lawyer, seemed distraught to Kenneth Novenstern, who was representing Mr. Friedlander in his divorce from his wife, Amy...

 "Tensions, divorce talk led to NH murder-suicide"

Associated Press / October 13, 2011 CONCORD, N.H.—The man who shot his wife to death in front of her two young daughters over the summer and then turned the gun on himself was reeling from her decision to divorce him, according to a New Hampshire Attorney General's office report released Thursday.

Twenty-two-year-old Matthew Balch shot his 25-year-old wife, Sarah, in the driveway of their home June 14 and then killed himself.

"Father went on California gun massacre 'over custody of son' "
October 13, 2011 LOS ANGELES, CA - Scott Dekraai, 42, walked into the parlour where his former wife Michelle worked as a stylist, and opened fire.

They had been locked in a bitter battle over their seven-year-old son since divorcing in 2007.

Witnesses described how the upmarket Salon Meritage in Orange County became a scene of carnage.  It was full when a gunman burst through the door and began shooting, sending terrified customers and hairdressers diving for cover.

Six women and two men died, and a ninth victim was in a critical condition in hospital.

To be sure, thankfully, these incidents are not the "norm" - but they occur often enough that it should cause us pause to perhaps re-evaluate just how we facilitate couples finding their way out of a broken relationship.

And even though we may not be in fear that our spouse is about to cause us harm, reality is that the fear and anger often inherent in divorce will, if we are not careful, lead us to make decisions which are hardly premised on a calm and rational examination of what is in our own best interests and the best interests of our children.

This is where Collaborative Law can make a difference.

By it's very nature, it is premised upon requiring couples to take time to examine what their interests are, and to construct a resolution which most closely aligns with the realization of those interests.

More importantly, it puts control back in the hands of the people whose lives are being impacted - and takes it away from distant and unpredictable judicial proceedings.

Does it make divorce easy?

No.

Does it make divorce painless?

No.

What it does, however, is allow parties to find their way through a divorce in a manner which is more respectful and rational, and which allows for a result which is in the sole control of the two people who matter. 

Think about it.

And if you, or someone you know, is in the midst of a divorce or a family breakdown - by all means consider Collaborative Divorce as an option which just might help.