Tag Archive: no litigation

1. Collaborative Law chosen for family law battles

   July 16, 2018 7:56 pm Leave a Comment

   Originally published in: Law Times, June 19, 2017
   Written By Marg. Bruineman

   The confrontational scenario of two former lovers who are now feuding adversaries duking it out in a courtroom over children and assets is itself being increasingly challenged.

   Alternative dispute resolution methods such as mediation and arbitration are prime for family law, which sees a high proportion of people trying to find resolution without the assistance of a lawyer.

   But one of the lesser-known alternatives is the collaborative law practice, which allows parties to negotiate a suitable settlement while avoiding litigation, with the support of a team. It is now being taught in some law schools.

   The consensual process, developed in the United States in the 1980s, sees the two parties agreeing to the shared goal of reaching an out-of-court settlement in a supportive context. And its appeal is growing into the mainstream, says Deborah Graham, a collaborative family lawyer and mediator in Toronto.

   “The shift we’ve seen over the last decade is that people who initially came into this process 10 or 15 years ago had very high trust, very high communication skills between them, a lot of shared goals and so it was a supportive context for that. Now what we’re seeing is people who are intensely betrayed, very devastated, not mutually agreeing to end a marriage, but it is the choice to find a place in themselves that can step up and still work in a consensus-building process,” says Graham.

   The process sees the lawyers, working from an agenda, present the legal model at the meeting. The parties, after consulting counsel as well as finance and family professionals, start generating options for resolution, ultimately leading to an agreement that is put into a separation agreement. A resolution might be achieved in a meeting or two or it might take a series of meetings.

   The collaborative practice acknowledges that the law, on its own, may not be enough for some families, says Nicola Savin, president of the Ontario Collaborative Law Federation and partner at Birenbaum Steinberg Landau Savin & Colraine LLP where her family law practice includes the collaborative approach as well as litigation and mediation.

   Collaborative law is based on the idea that family law raises issues and problems distinct from other forms of legal disputes because it involves financial and emotional issues in addition to legal issues. So the collaborative approach includes jointly retained financial and family professionals, as well as the lawyers, all trained on the collaborative model.

   There are 19 practice groups in Ontario with about 500 trained collaboration professionals. In Toronto, there are about 100 trained collaborative professionals, 75 of whom are lawyers.

   “In some respects, the emotional issues are more important to the people than the legal ones,” says Savin.

   “The collaborative process allows you to customize your resolution to fit your own individual family’s needs and your own individual goals and concerns.

   “So, instead of phone calls and letters and court documents going back and forth, the parties actually sit down with their counsel and everything happens at the table.”

   Discussions can be difficult, Savin adds, so it’s helpful for someone trained to manage the emotion in the room so that the discussion is focused and ensure it is productive and follows the agenda.

   That family professional is also instrumental in working out the parenting plan with the parents, which is presented to counsel to vet. As advocates for their clients, the lawyers work through the stumbling blocks.

   The role of the “financial neutrals” is to provide advice on income and business valuation issues and gather the financial information.

   “And I do find that the parties are more open to believing the veracity of the information if it’s provided by someone other than the other side’s lawyer,” says Savin. It also has the benefit of saving money and time, she adds.

   Family lawyer Nicolle Kopping-Pavars considers herself a peacemaker and quickly attached to the collaborative approach, finding it to be one with integrity, when she moved to Canada, establishing her own practice in Markham, Ont. She now returns to her native South Africa to teach it to lawyers there.

   She appreciates the team approach and the ability to deal with emotion as the couple works toward a legal resolution that begins with a participation agreement to agree to the process and agree that courts will not be part of the process, which remains confidential. So the spectre of going to court cannot cast a shadow over the discussions.

   “The realness and the emotion of separation — collaborative law allows that to come to the table, whereas litigation and courts don’t allow it to come to the table, and then people stay in that litigation mode because their voices and their interests and their goals and their feelings are never addressed,” says Kopping-Pavars.

   But those who are not prepared to voluntarily make full, accurate, honest and timely financial disclosure are not good candidates for the collaborative approach, says Graham.

   The next layer is weeding out those who are clearly motivated to use this process in an abusive way — starve their spouse out or maintain the status quo.

   “When I try to help people choose between mediation or collaborative, a lot of my assessment [is] about where they’re going to be a better fit, how much support and coaching are they going to need from an ally, an advocate,” says Graham.

2. Collaboration thrives when litigation off the table

   7:53 pm Leave a Comment

   Originally published in Law Times, July 24, 2015.
   Written by Deborah Graham and Nicola Savin

   Collaborative lawyers have removed a significant tool from their negotiation toolbox — they do not go to court for their collaborative clients. Without the option of litigation or the threat of litigation, collaborative lawyers are focused on settlement every step of the way. Thus they have developed a set of tools, protocols and skills that increase the likelihood of a timely, durable and cost-effective settlement. Many of these tools and skills are helpful in non-collaborative files, whether traditional negotiation or litigation.

   Collaborative lawyers focus on interest-based negotiation. Each lawyer works with his or her client to “mine for interests.” The lawyer asks questions to move beneath positions and understand the goals, concerns, fears and values of their client. The lawyer also helps the client to prioritize their interests. Exploring interests often yields possible solutions or restructuring of proposals and counter-proposals that increase the likelihood of settlement. Through exploring shared and divergent interests, we create ways in which the parenting or financial “pie” can be expanded. It’s always easier to divide a pie that just got a bit bigger.

   Collaborative lawyers don’t write a lot of letters. Some don’t write any. There is no need to “have a paper trail” since none of the letters can be used in any subsequent process without both parties’ consent. As a result, collaborative lawyers pick up the phone and call each other. A letter often serves to inflame or polarize. A phone call tends to build understanding and possibilities. The next time you are about to write a letter to the other lawyer on the phone, try calling them. You might be surprised at how much progress is made.
   Collaborative practice encourages the joint retention of other collaboratively trained professionals such as mental health professionals, parenting mediators, financial planners and valuators. Consider a more integrated approach than the usual referral model for parenting mediators, financial planners and CBVs. For example, if a business valuation is needed, consider jointly retaining one to prepare schedules instead of a report and have the CBV come to a four-way meeting to walk everyone through their analysis.

   Because collaborative process is a client-centered process, collaborative lawyers spend time preparing their clients to participate in settlement meetings. Preparation includes coaching clients in saying what they need to say in a way that increases the likelihood of being heard by their spouse and helping the client to be ready to listen to what their spouse has to say. Preparation also means some negotiation coaching and helping clients clarify what is truly important to them.

   Prior to a settlement meeting, collaborative lawyers have a call with counsel or any other professional who will be participating in the meeting to identify any “hot button” issues and to choreograph how that issue will be dealt with in the meeting. Preparation with the collaborative team and the clients is key to ensuring a successful settlement meeting. You wouldn’t show up for a court appearance without preparing properly; why would you expect a settlement meeting to be successful if you just show up with no preparation beforehand?

   Settlement meetings are the heart and soul of collaborative practice, and we have learned that agendas and progress notes are critical to their success. When the lawyers create an agenda for a meeting and distribute it to their clients prior to the meeting, it helps clarify the issues, sets the pace of the meeting and ensures that everyone is ready to talk about the agenda items before they arrive at the meeting.

   At the end of every collaborative meeting, the lawyers co-operate in creating progress notes — a shared account of what was discussed, what was agreed upon, and what “homework” needs to be done by whom and when. The progress notes are then sent to the clients. This is invaluable in creating a shared record of the progress made in a settlement meeting so there are no misunderstandings or misrepresentations. Consider scheduling a settlement meeting with an agenda two weeks prior to your next court or mediation date. You will be able to make much better use of your court /mediation date having narrowed the issues in your settlement meeting — and who knows, you may even settle the case.

   Pacing of a file can be used to create momentum and reduce the likelihood of negotiation fatigue. Consider scheduling a couple of counsel calls and four-way settlement meetings over a period of a few months. It will ensure the file stays top of mind and doesn’t get shelved until the next court date.

   For more negotiation tips, tools, protocols and strategies, consider getting collaboratively trained. See your Ontario Collaborative Law Federation website for info on upcoming trainings.

3. Access Schedules cannot be controlled by children

   7:49 pm Leave a Comment

   An Ontario Court of Appeal (OCA) decision finding primary parents have a duty to ensure their children visit with their other parent illustrates the fact that changes to an access schedule must be based on more than the whim of a child, says Toronto family lawyer Nicola Savin.

   Godard v. Godard, 2015 ONCA 568 (CanLII) dealt with an appeal from a mother who argued that a motion judge erred in finding her in contempt for refusing to comply with an access order. The mother felt that since the couple’s 13-year-old daughter did not want to go to her father’s home, she should not be forced to do so.

   Justices Alexandra Hoy, Gloria Epstein and Grant Huscroft dismissed the appeal and upheld the contempt finding, stating it was appropriate given the background of the case. The mother “has a history of trying to limit or terminate the respondent’s access” to the child, says the decision.

   “Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child,” reads the decision.

   Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP, says a child’s wishes are not a sufficient reason for disregarding an access order.

   “It’s incumbent on a parent who wishes to change the terms of an access order that they actually go to court and seek to change it,” she tells AdvocateDaily.com. “That’s what the parent in Godard could have done, but they instead chose to disregard the schedule and rely on doing what the child wanted. That’s not sufficient. If you have a court order you have to comply with it. It’s not up to you to exercise your own discretion and do whatever you want.”

   It’s not uncommon for children to resist access arrangements, says Savin, especially early on in a case.

   “They’re used to their routine; it’s almost always a challenge,” she says. “Sometimes there are exceptions but there is almost always some resistance. Nobody wants two homes. Parents are the ones who get to stay in their homes while the children go back and fourth.”

   It’s not easy, says Savin, but most children can manage the transition.

   “They’re young and resilient, and they want to see both parents,” she says. “Some are more rigid and there may be valid reasons for them not wanting to go see the other parent, and if that’s the case, the parent who knows of the valid reasons should take the issue back to court.”

   Savin says often, children’s wishes may mirror what the primary parent wants rather than their true feelings.

   “Just because the children say they don’t want to see the other parent doesn’t necessarily mean that’s what they really want. The kids may be caught in the middle.”

   Savin encourages families in such a position to see a family therapist who specializes in families in transition.

   “I think it’s useful for the child, depending on their age, to see a therapist by themselves or with the primary parent or both so the whole family can be involved in the solution,” she says. “That way, if there is an actual problem it can be aired and hopefully resolved in some way without recourse to litigation.”

   Originally published in Advocate Daily.

4. Benefits of #divorceselfie trend go beyond Facebook

   7:46 pm Leave a Comment

   A new online trend that celebrates the positive side of divorce is not only likely to serve as an inspiration for separating couples, but is also representative of the benefits that come from putting the children first, says Toronto family lawyer Nicola Savin.

   Calgary couple Shannon and Chris Neuman made headlines last month after posting a photo together after filing for divorce.

   Shannon Neuman shared the selfie on her Facebook page with the hashtag #divorceselfie, and the image has been shared thousands of times.

   In the caption, she explains their smiling faces after having “done something extraordinary,” noting they wanted the split to be conflict-free so their children would never have to choose sides.

   “They’ll never have to wonder which side of the auditorium to run to after their Christmas concert or spring play, because we’ll be sitting together,” says the caption. “They won’t have to struggle with their own wedding planning because we’ll be sitting on the same side of the aisle — THEIR side.”

   The couple was applauded as being inspiring as the photo went viral online.

   “Far too often, the media — and social media especially — only post stories that show the negative side of divorce, but there are many good sides as well,” says Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP.

   “I think this new trend gives people hope, which is what they need when going through that difficult transition. They can see that if they do it properly, they can still come out the other side of a separation and have a viable relationship with their ex-spouse to co-parent successfully, which is what most family lawyers are interested in preserving,” she says. “I think it’s something to aspire to.”

   But staying civil during a split isn’t easy, says Savin, which is why those couples who remain cordial deserve to be celebrated.

   “It’s not an easy thing to do. It’s challenging,” she says. “In my practice I do a lot of collaborative family law, and certainly the goal of collaborative cases is to have a win-win situation so both parties can walk away feeling like it was an equitable settlement handled with dignity and respect for the relationship and their family.

   “Just because you’re not living together doesn’t mean you’re not a family anymore,” says Savin.

   In the Neumans’ case, Savin says it’s likely the children saw the photo as well, “which is heartwarming.”

   Children model their parents’ behaviour, says Savin, and are more likely to do what they see rather than what they are told.

   “If you can model good conflict resolution, especially over something like this, it allows the kids to see their parents doing something positive so they can emulate them when they have challenges in their own life,” says Savin.

   The benefits of amicable resolutions go beyond getting noticed on Facebook, says Savin.

   “The vast majority of these cases are a lot less expensive and they don’t usually go to court, which is beneficial as litigation can be very destructive,” she says. “Outcomes for children are significantly better when they are not exposed to the conflict of their parents’ separation.

   “The trend is moving away from the winner-takes-all approach to separation, which results in a winner and a loser and bad feelings and animosity. The selfie is kind of indicative of where a lot of people want to end up.”

   Originally Published in Advocate Daily.

5. Collaborative lawyers work with settlements in mind

   7:41 pm Leave a Comment

   Without the option or threat of litigation, collaborative lawyers have developed best practices that increase the likelihood of timely, durable and cost-effective settlements for clients, Toronto family lawyer Nicola Savin, a partner with Birenbaum, Steinberg, Landau, Savin & Colraine, LLP, writes in Lawyers Weekly.
   The article, co-authored by Deborah Graham, discusses the skills associated with collaborative law and why they may be helpful in non-collaborative files as well.

   “Collaborative lawyers focus on interest-based negotiation. Each lawyer works with his or her client to ‘mine for interests.’ The lawyer asks questions to move beneath positions and understand the goals, concerns, fears and values of their client. The lawyer also helps the client to prioritize their interests,” says the article. “Exploring interests often yields possible solutions or restructuring of proposals and counter-proposals that increase the likelihood of settlement.”

   Collaborative practice encourages the joint retention of other collaboratively trained professionals such as mental health professionals, parenting mediators, financial planners and valuators, and integrated approaches are highly valued, says the article.

   Client preparation is also key, write Savin and Graham, as are settlement meetings, where agendas and progress notes are “critical.”

   “At the end of every collaborative meeting, the lawyers co-operate in creating progress notes — a shared account of what was discussed, what was agreed upon, and what ‘homework’ needs to be done by whom and when,” says the article.

   “The progress notes are then sent to the clients. This is invaluable in creating a shared record of the progress made in a settlement meeting so there are no misunderstandings or misrepresentations.”

   Savin and Graham also note that the likelihood of negotiation fatigue can be minimized by scheduling counsel calls and four-way settlement meetings over a period of a few months.

   Originally published in Advocate Daily.