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.