Collaborative Divorce Alberta

Legal Advice in Collaborative Divorce: Dangerous Minefield

2012-02-14T07:17:00.000-08:00

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

2012-01-13T07:43:00.000-08:00

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

2012-01-10T07:36:00.000-08:00

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

2011-12-05T07:32:00.000-08:00

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

2011-11-30T07:10:00.000-08:00

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

2011-11-28T06:46:00.000-08:00

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?

2011-11-14T07:06:00.000-08:00

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

2011-11-07T07:02:00.000-08:00

"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

2011-11-03T08:01:00.000-07:00

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.

To Collaborative Professionals - A "Free" Marketing Idea

2011-10-31T15:24:00.000-07:00

So.

I'm sitting here in the Delta Sky Lounge at San Francisco airport, reading a book purchased yesterday at the IACP forum written by our Saturday speaker, Dan Ariely, "Predictably Irrational".

The premise of the book is that all of us, as consumers, make purchase decisions and life choices which are not based upon our own best interests - as much as we like to think otherwise.

We will drive across town to save $5.00 on a $20.00 pen, but we will not do the same to save $5.00 on a $500.00 suit.

And when offered something for "Free", we are inclined to make choices with even less regard for our actual interests.

So then.

What to do with that?

We know, those of us who practice in this area, that Collaborative Process is inherently better for our clients, by and large, than the traditional litigation-based approach to conflict resolution.

And yet, the process still represents a relatively small portion of overall numbers of people going through divorce.

To this point we have relied upon rational explanations of the inherent decency of the process to encourage clients to choose it, based upon the assumption that our clients make entirely rational decisions regarding their own best interests.

Ariely, however, makes it very clear that in fact they do not - particularly so, perhaps, in the case of divorce.

So what then?

Well. Ariely has explained that even when we are faced with a more advantageous proposal, all things considered - when compared to the "free" option, people will flock to the "free". He explains it, in part, to risk aversion. Even if the option is bad, at least you didn't pay for it.

What, then, if we offered a better option for free?

Suppose we offered a free consultation to those going through divorce regarding be Collaborative process?

I'm not suggesting we, as lawyers, charge less for our service in the process - as the choice ultimately shouldn't be a WallMart sort of decision.

But, if Ariely is correct, one might assume people will come talk to us.

To paraphrase James Earl Jones, "People will come.. Oh, they most certainly will come."

So.

Think about it.

On your own, or perhaps in conjunction with your practice group, try it out. Put a couple ads or notices out there that you will offer a free consult to explain the Collaborative Process.

And then let me know how it worked.

And maybe next year, in Chicago, we can explain how we put our Saturday lunch speaker to work, to a hopefully positive result.

BMO Report: Canadians Underestimate Financial Impact of Divorce

2011-10-18T07:13:00.000-07:00

The Bank of Montreal, in a study reported in Marketwatch last week, reports that while over 100,000 Canadians divorce every year, very few of them appreciate the financial impact resulting from the divorce.

In the study, prepared by Leger Marketing, respondents were asked how they felt divorce would impact them.

While 41% responded, as one might guess, that family life would be impacted by a divorce, only 19% reported that they felt their finances would be impacted, and even less, 14%, felt that their standard of living would be impacted.

Those of us who practice divorce could have easily provided the same advice.

How many people come to us, eager to move out of a difficult marriage, but blissfully ignorant of the serious impact that divorce will have upon their finances and their standard of living?

Couple that with anger and frustration with their spouse - and you have a perfect storm for litigation as spouses seek to deny the inevitable - that THEIR lifestyle will suffer when you take two people who had been sharing their finances and now create two separate homes.

Over and over we see spouses refusing accept the reality of their support obligations, or conversely, who refuse to accept the limitations of the other party's support obligations - leading them to Court where, quite often, both parties are left dazed and confused as their financial problems are amplified now by significant new debt in the form of significant legal fees.

So, then.

Time for a reality check.

If your finances aren't perfect when you are married, what makes you think that they are going to get better when the two of you now acquire a second home, a second set of utilities, and all the other expenses that are duplicated in two homes?

Add to that the need to furnish the new home.

Add to that the costs of legal representation.

I think you see the problem.

Can you avoid the financial pain often inherent in divorce?

No.

But you can control the bleeding. You can reduce your risk through, firstly, accepting the reality that assets are going to be divided, that finances are going to be reorganized - which will create discomfort.

Then - through the use of Collaborative professionals, including lawyers, counselors, and financial advisors, you can create a plan to minimize risk and loss. Put down the guns and pick up the pencils. Figure out a plan which represents a reasonable compromise for both parties.

Whether your divorce is in Lethbridge, Calgary, Edmonton, Lloydminster, or anywhere else in Alberta - there are Collaborative professionals who are ready and willing to help you put the pieces back together as much as possible.

Or you can pretend that the "divorce fairy" will make everything better - that you won't pay any support, or that the support you receive will be more than enough to maintain the lifestyle that you had before.

And then get ready when reality later crashes in - accompanied by thousands of dollars in legal bills.

Your choice.

Divorce - No Time to Air Your Troubles on the Talk Show Circuit

2011-10-12T07:14:00.000-07:00

Well.

More examples of how to damage your children in a divorce.

Cue paparazzi camera flash and TMZ gossip mongers interviewing children in the midst of a custody battle.

While some high-profile divorcing couples have seen the benefits to themselves and their children of civilized and low-key resolution of their issues (see Tiger Woods, Robin Williams, Cameron Crowe and Nancy Wilson), others, such as Kelsey Grammer and his "Real Wife".. err.. now "Real Ex-Housewife of Beverly Hills, Camille Grammer have made a point it appears of making their divorce as public as possible.

Go ahead and search Google videos for "Grammer divorce", and see what I mean.
Witness today's news story regarding an application by Kelsey Grammer seeking a gag order to prevent his former spouse from allowing their children to be interviewed by reporters, following quickly upon a dismissed application brought by Camille Grammer seeking to remove the children from their father's care because he allegedly sent them to activities with a Nanny.

Now.

In fairness, Kelsey Grammer appears to be more often responding to his former spouse flitting about in the media disclosing her scorn and anger - ignoring the reality that their children are being exposed very publicly to this circus - the reality is that it takes two to tango, and certainly, it does not appear that the need to provide children stability and freedom to love both of their parents is in the forefront of the Grammer divorce.

Contrast that with the relative lack of public commentary by the most sensational divorce, perhaps, of the last decade - Tiger Woods and Elin Nordgren.

Short, brief interviews where neither party attacks the other, and most often comment on how important it is to assure that their children's needs are put first - Tiger Woods recently commenting, "You know, it's a sad time in our lives," he said. "And we're looking forward in our lives and how we can help our kids the best way we possibly can. And that's the important thing." Commentary from the children's mother, Elin Nordgren was similarly conciliatory:

"..she told People she had no intention of addressing the matters again, saying she hoped she and her children could get the privacy they needed to adjust to their new lives.

Despite everything Nordegren said she has no regrets and is gracious toward her ex.

"I wish him all the best in the future, as a person and as an athlete," she said.

The needs of the children require priority over the anger and hurt of the parents.

Sad that so many couples don't see that.

Consider the examples above.

And, if you or someone you know is experiencing a relationship breakdown involving children, consider the example of Tiger Woods and Elin Nordgren as opposed to that of Kesley and Camille Grammer.

Whether your divorce is in Lethbridge, Alberta, or Beverly Hills, California, the issue is the same - conflict and anger is a good recipe for raising troubled children.

Give children the best opportunity to survive a divorce unscathed.

Consider a Collaborative Divorce team as the children's best option.

Choose your process FIRST. And your lawyer second.

2011-10-06T07:01:00.000-07:00

Well.

Aren't I important.

I'm a divorce lawyer. I have a law degree from the University of British Columbia, I have 26 years experience as a family law specialist, I've run scores of trials and appeals in Lethbridge, in Calgary, in Medicine Hat. All over Alberta, really.

Pretty impressive, huh?

But here's a bit of advice. The most important person in determining how your divorce is going to work out isn't your lawyer. It isn't some Judge.

It's you.

The key to a reasonable resolution of your divorce is YOU.

Now, in fairness, it's actually you and your former spouse or partner, but you can't control your partner (newsflash for some clients), you can only control you. And the greatest predictor for how difficult your divorce is going to be is how YOU establish your mindset going into the process.

Ask yourself some fundamental questions:

a) What do I want, really?

Do you want to spend the next year or two of your life in and out of the capricious and unpredictable court system?

Do you want your children to grow up angry and unhappy, with life-long scars of watching their parents battle for the whole of their childhood?

Do you want what property you have worked hard to acquire to be, eventually, split between lawyers, instead of being used to save for your retirement or to assist your children in University?

Or.

Do I want to get through this process with as little collateral damage as possible?

Do I want to maximize my ability to effectively parent in a world where being a parent is already hard enough?

Do I want to get through a painful period of my life in a respectful, thoughtful way, moving forward as quickly as reasonable possible, moving from storm into sunshine?

b) What is the best process choice to obtain the outcome I want?

If you haven't guessed it, while as a litigation lawyer, I make a good living going to court, I have a preference for encouraging clients to find solutions, not confrontation.

So - if you truly believe that a negotiated resolution (which means you can't have everything you want) is your best option - well, then, consider your options to find that resolution.

Court?

Arbitration?

Mediation?

Collaborative Law?

Spend a little time online, research your alternatives, and then decide how YOU want to proceed. Take control of the process - to the extent possible being only one half of the process.

And then, only then, choose the person to help guide you through that - your lawyer.

The bottom-line message, which I have borrowed from Lori B. Kikuchi, a business consultant in North Carolina, who has a very interesting website: Quitethesite.com.

She supports Collaborative Law, and the closing line of her October 3 blog is priceless:

Choose your Divorce Process First - Your Divorce Attorney Second

How to Make Divorce Harder on Your Kids

2011-10-04T08:09:00.000-07:00

An excellent article contributed by a member of the Association of Collaborative Lawyers of Alberta, Barb Hepperle, M.Sc., Life & Divorce Coach, Family Conflict and Divorce Mediator.

Is your child having difficulty adjusting to the breakdown of your relationship? If so, you may need to take a hard look at your own attitudes and behaviours. Decades of research show that it is not the divorce that hurts kids; it’s the way the parents interact with one another. If you want to ensure that your child will become permanently emotionally and socially crippled by your divorce, then here are some suggestions to guide you.

#1: Argue with your ex-spouse in front of your child.

Is your child is experiencing more psychological problems such as anxiety, depression, bullying, poor self-esteem, physical complaints, and difficulties in school? Are you blaming the other parent or the divorce? Ongoing conflict between parents is very frightening for children and when you fight, your child’s greatest fear is that you won’t love them anymore either.

When you are hurt and angry it’s difficult to separate out your needs from those of your child but your kids need to trust that you will not reject them. Your behaviour serves as a role model for your kids. Children learn by observing so consider carefully what you are teaching them. As they see, so shall they be! Protect your child by keeping your heated conversations out of earshot. No matter how many times you reassure them, a small part will always be convinced that you are getting divorced because of them and they will interpret your negative reactions as being directed at them and not at the other parent. The more you can manage your own conflict, the better your child will adjust.

#2: Use your child as a messenger or a spy.

It’s easy to see your child as a simple way to pass on a message when you want to have as little contact as possible with the person you believe is responsible for all your pain. After all, you get to avoid a confrontation so that’s gotta be better, right? Wrong! In the long run, it harms your child.

Sending messages to the other parent through your child or asking them a lot of questions about the other parent’s personal life, places the child in the position of being ‘caught in the middle’. You violate your child’s trust and can cause them to feel guilty for enjoying their time with the other parent. Studies show that this is one of the most stressful events for children coping through divorce.

And why would you ask your child to be mature enough to handle something that you can’t? Not only does a child have to cope with your negative emotions, you force them to try and cope with the other parent’s responses as well! Adult communication has to happen between adults. Clean up your act and communicate directly with the other parent.

#3: Be in a power struggle with the other parent.

Now is not the time to try and be a Disneyland parent. Your child’s affection is not a competition to be won or lost. Divorce does not diminish the privileges, rights and responsibilities of both parents. It is the child’s right to have maximum involvement with both parents and nurturing this healthy attachment allows your child to feel safe and secure. It is also essential for allowing your child to develop self-confidence and trust in others; it builds the foundation for the quality of relationships we have as adults.

Accommodate each other’s schedules by allowing flexible adjustments and alternate arrangements. And remember, a child keeps his relatives as well. Just as adults need extra support though this painful transition, so do your children. Having the support of the extended family will help minimize their pain so it’s up to you to ensure grandparents, aunts, uncles, and cousins from your spouse’s side are still involved in your child’s life!

#4 Use your child as an ally.

Do you allow your child to talk disrespectfully about the other parent? Have you ever disconnected the phone or told the other parent the child can’t talk now because…., and the list goes on? Do you plan activities that interfere with the other parent’s time? Maybe you ask your child to keep secrets or let them make the decisions about spending time with the other parent. Many divorcing couples let their anger and bitterness fuel how they relate to their child, intentionally or unintentionally pressuring the child to take sides

A child naturally wants to love each parent and your child needs permission to love both of you. By exposing them to criticism of the other parent, you are creating tremendous inner conflict for your child. It causes them to feel upset, insecure and confused. It is your job and responsibility as a parent to encourage a close and continuing relationship with the other parent so it is imperative that you separate out your feelings towards your spouse from those you have toward your children.

Ask yourself, would you act this way if you were still married? If you are doing something now that you wouldn’t before your divorce then you may be an alienating parent. Observe your behaviour carefully and change any actions that unwittingly are directed toward driving a wedge between your child and the other parent. Over time, your kids will respect the parent who played fair.

#5 Don’t keep the other parent informed.

If you don’t want your children to adjust well to your divorce, then make sure you neglect to keep the other parent informed about any problems, concerns, progress, and developments as they come up.

Children will manage just fine when both parents are actively involved in their daily activities as much as possible. You don’t need to be buddies with your ex, but do be sure

to discuss any major decisions that will impact your children well ahead of time. Acting responsibly allows your child to feel secure knowing that a responsible adult is taking care of them.

#6 Threaten or Engage in Custody battles

It doesn’t matter how old or how smart your child is, kids are extremely sensitive to their parents emotions. Custody battles are rarely, if ever in the best interests of the children, or anyone for that matter. Did you know that the emotional tug-o-war of legal battles and high conflict directly impacts your own ability to be an effective parent?

Angry moms tend to exclude dads from parenting responsibilities and are often more frustrated and less empathic with their sons while using harsher discipline and guilt or anxiety-inducing techniques. Angry dads may be more intrusive and negative with their kids. If you think your ex is a ‘dead-beat’ beat dad, then check your own attitude. Dads are more likely to withdraw from their parenting role in order to avoid high conflict not their kids.

Your children deserve to be protected a much as possible from the damaging fallout from your divorce and rest assured that they will always adjust better when they have as much contact as possible with both parents. If you fear for the safety of your child, you can seek supervised contact for the child but don’t deny your child their right to form their own relationship with other parent.

Conflict and battles are toxic and soul-destroying for everyone. It takes responsibility and maturity to recognize your own contribution to the struggles and difficulties. The secret to stopping the tug-o-war is that only one side has to let go. Will you be the one to step up to the plate?

The Collaborative Divorce "Fad"

2011-10-03T08:31:00.000-07:00

Collaborative Law - World Wide "Fad"

About ten years ago, a few lawyers in Medicine Hat, Alberta brought a trainer to their small town to show lawyers a new negotiation process called "Collaborative Law".

I had never heard of such a thing - and, to be sure, not many other people had heard of it either at that point. As near as I can tell, we were perhaps the first lawyers in Canada to receive this training - from a lawyer named Chip Rose.

Soon after learning about it, a group of lawyers in both Medicine Hat and Lethbridge commenced their own "Collaborative Law" practice groups, followed quickly by groups in Calgary, Edmonton, Red Deer and Lloydminster.

Yet - even as the groups spread across the province of Alberta, still, we encountered friction and opposition from many lawyers who felt threatened, or perhaps, insulted by a process which was premised on a "better way" to divorce. It was referred to by many as a "fad" which would fade away in time.

But, 10 years later, it's stronger than ever and still growing.

How wide spread is this process now?

Wales, U.K. - Sept. 8, 2011 - from Wales Online: "Tune in to different set of options for finding solutions to conflict" ;

Charlotte, North Carolina - Sept. 27, 2011 - from Marketwatch: "Planning for Divorce: Horack Talley Recommends 8 Steps To Take" (Which includes considering Collaborative Law);

Brentwood, Tennessee - Sept. 28, 2011 - from Insurance News "Rosemary Frank Attends National Conference to Refine Expertise"(Ms. Frank is a Collaborative Divorce Financial Neutral);

Milwaukee, Wisconsin - Sept. 15, 2011 - from the Milwaukee Journal-Sentinel "A better way in divorce process";

Australia - July 20, 2011 - from The New Lawyer, "Collaborative law in lawyers' hands"

Indeed, if one is looking for a Collaborative Professional, checking into the listing of members of the International Association of Collaborative Professionals, you will find the following professionals:

Lawyer - Eva Vaňková, Vysoké Mýto, Czech Republic;

Lawyer - Jean-Luc Rivoire, Paris, France;

Mental Health Professional - Elisheva Zohar Reich, Tel Aviv, Israel;

Lawyer - Hok Shi Elsie Liu, Hong Kong, China;

Lawyer - Walter Bwire, Kampala, Uganda

Collaborative Law and Collaborative Divorce is not a fad. It is not a passing fancy. It is a process that is helping people all the world over find a less caustic way to find resolution in the midst of one of the most emotionally painful experiences a person can experience.

If you or someone you know is in the midst of divorce or family breakdown, consider a collaborative approach.

For more information contact: ACLA - Association of Collaborative Lawyers of Alberta

Time to End "Scorched Earth" Divorce

2011-09-30T07:36:00.000-07:00

Pretty amusing, no?

This isn't a real video - it's a viral video used to promote Triumph Boats.

However, this sort of behavior, while not common, is still not unheard of either.

Just today we read that a man was arrested for burning his house down, rather than sell it as part of a divorce settlement.

Net result, he's probably going to go to jail, and the wife no longer has the $160,000.00 she was supposed to get from the sale of the home.

This isn't how divorce needs to be.

The idea of a "scorched earth" policy, where you hurt yourself to inflict pain upon your former spouse or partner is pointless and stupid.

It won't make you feel better.

It will, one way or another, cost you - both financially and emotionally.

More and more in my practice I see people coming to me who understand this intrinsically. They don't want drama and conflict - they've often had enough of that for a life time, and want peace and resolution.

They understand that life is short, and moving forward in an effective way, to get beyond the pain of a broken relationship is their goal.

As lawyers, it is incumbent upon us to understand this.

To see the sometimes ill-considered desire of our client for revenge or vindication, and to channel their efforts towards minimizing their emotional and financial loss and to allow them to move forward with their life in a healthier manner.

So.

To people suffering a relationship breakdown, I suggest:

Put the boat away.

Put down the gasoline can.

And call a lawyer or mental health professional, and work towards a healthier resolution in your relationship breakdown.

Alberta Access to Justice? Maybe Not So Much.

2011-09-28T07:55:00.000-07:00

How important is your child's happiness..?

So.

I'm in Court of Queen's Bench family and divorce chambers yesterday in Lethbridge.

And ahead of my matter is an application pitting a father acting on his own with the mother, who is represented by counsel.

The parents had been sharing custody of their daughter, who is 10 years old.

Both parents live in a small community, both live within a block or two of her school, and both appear to be very loving and capable parents.

But.

Here's the problem.

Dad has had his shifts change, and so, he has to leave for work at 6:30am, and doesn't get home until 5:00pm. As a result, mother applies to obtain primary care of the child, who was being left alone to get up and go to school, and was left at home alone after school until dad got home.

And here's the stupid thing. The father earns $87,000.00 per year.

And, yet, he shows up in court on his own, without a responding affidavit to the mothers suggestion that the child is being improperly attended to - and is asking the Judge for yet another adjournment (after being served with the mother's application and affidavit in mid-July, two months ago).

Long story short, the father lost shared custody of his daughter. And, likely, will never regain it.

This is Alberta's proud effort to assure "access to justice". Encouraging people to perform legal surgery on themselves.

This guy could easily have afforded the $2,000 or so to have a very qualified lawyer in court assisting him.

Better yet, the lawyer acting for the mother is someone I know who is very amenable to the collaborative practice approach, and I am very certain, were I counsel, we would have had these parents employ the assistance of a child expert and some parenting coaches to help them craft an arrangement that would have allowed the father to retain an integral position in his child's life.

Instead, yesterday, he became another weekend dad.

And here's something that's sort of interesting, in a tragic sort of way.

The Alberta government has fallen all over itself to dramatically change our Rules of Court, our Court Forms, our processes and procedures, to make it easier (to encourage) people to go to Court on their own without counsel.

The result has been an increase in litigation, which means an increase in cost to the tax-payer, which means an increase in unhappy people - like the dad in the case above - who learn the hard way about the shortcomings of the judicial system.

And - likely, this dad is going to be hurt and angry, and his relationship with the child's mother will be worse today than it was yesterday, which increases the chance of discord between them, which increases the chances of this little girl growing up dysfunctional - at yet more cost to the tax-payer to assist in children having children, or children not meeting their potential as they become adults.

A very real human cost and a financial cost to the tax-payer.

Yet.

At the same time.

When the Progressive Conservative Party held a policy conference a couple years ago, seeking input from it's members as to policies they would like the government to pursue, there was a proposal accepted by a majority vote of the members present to ask the government to support and assist in the promotion of Collaborative Law. A "grassroots" effort, if you will.

Reducing the human cost of divorce battles.

Reducing the cost to the tax-payer of attending to these fights, and reducing the collateral damage, the "fall out" from those battles - including increased costs to our criminal justice system, increased costs to our social service organizations, and increased costs of continued future litigation.

And Progressive Conservative leadership hopeful Allison Redford spoke to this writer on two occasions, suggesting her support fore the collaborative process.

But - at the end of the day - the Alberta government decided to go the other way, and has provided virtually no support or promotion of collaborative practice.

They decided it was better to encourage litigation, and to make it easier for people to go to Court and perform legal surgery on themselves and their families.

How's that working out?

Well, not so well for at least one father in court yesterday.

Divorce - One Size Fits All?

2011-09-26T07:36:00.000-07:00

"Welcome to the Divorce Factory"

Are you an individual?

Is your life experience unique to YOU?

Or, when you find yourself in difficulty, do you feel like the answer to your problem should come to you like a ball of gum from a vending machine - put your nickle in, and out pops your solution.

Welcome to the judicial system, dealing with your divorce.

If you want to understand my point, take a look, for example, at the mandated Form for a Statement of Claim for Divorce in Alberta.

It's a PDF online form, where you fill in the blanks, and then literally "check off" the boxes to tell the Court what you want them to do.

It's the epitome of "one size fits all".

Is that how your divorce should be treated?

Is your marriage, your family, your business the same as everyone else's?

Are the circumstances in YOUR home, in Lethbridge, or Calgary, or Grande Prairie, or Kalamazoo for that matter, the same as everywhere else?

When you find yourself in the midst of a divorce - one of the most stressful and uncertain periods of your adult life - do you want to engage a system where your problems, and your hopes are treated like they are coming into Court on an assembly line?

Well, welcome to the litigation system.

Ignoring the costs and delays inherent in litigation, the judicial system is truly like a big factory assembly line, except that on that conveyor belt are your children, your bank accounts, your business, and your sense of self.

And like any assembly line, the success of the process is premised on uniformity of product.

Input "A" must lead to output "B".

Now - lawyers and judges do their best to try and deal with the differences between the parties, however, starting from the top down, our Courts have, over the last two or three decades, tried to accomplish radical change in the family law system.

And that means, well, creating "uniformity".

Do you doubt me?

Take a look at the Child Support Guidelines, the Spousal Support Guidelines, and the Matrimonial Property Act.

Input income and assets - "A", and the courts are asked to then create outputs by way of Child Support "B", Spousal Support "C", and Property Division "D".

And while there are circumstances that the court can use to differentiate between outcomes (except in child support), the reality is that Judges are human beings. They see people coming before them every day, day in and day out, and all of those people at a certain point begin to blur into a large faceless blob. And when you combine that with massive pressure to produce "desired" outcomes, well, the results in very little ability for the divorce factory to see you as unique.

And so, very often, it is patently obvious that as sincerely as Judge's may attempt to exercise their duties, the tried and true ground (precedent if you will) becomes their touchstone.

One. Size. Fits. All.

Is that for you?

If not, you might consider Collaborative Divorce.

No judges. And while the law is relevant and will be explained to you, if you and your spouse or partner would like to consider other ways of addressing YOUR issues, "outside of the box" if you will, well, that option can be put on the table.

Maybe you would like to pay your wife much higher support than a court would order after your separation to help her get into a good University to complete that degree she put on hold to have your children.

Maybe having your children remain in their home is more important to you than increasing your income stream through spousal support - so you waive or limit your support claims in exchange for keeping your husband's share of the house.

Maybe you would like to make some of your property settlement tax deductible, so you negotiate a higher spousal support order, in exchange for a greater share of property.

Maybe you are a farmer - and instead of selling the land you inherited from your father, who inherited it from your grandfather - you agree to transfer two quarter sections of land to your wife, and then enter into a long-term lease. And then maybe both of you agree to ultimately sell the whole of the farm to your children.

All of these options, and more, can be discussed and, possibly, agreed to in a Collaborative Divorce.

In a Courtroom?

No so much.

More like, "Do you want fries with that?"

How to Start a Collaborative Divorce

2011-09-22T13:33:00.000-07:00

There is a very nice article today by Julie Garrison in "Dadsdivorce.com " titled How To Begin The Collaborative Divorce Process.

While the website is aimed at fathers going through divorce, it is equally applicable to any party, and is a very nice, easy to digest description of how to engage your spouse or partner to work out differences arising in a family breakdown using the collabortive process.

Getting Divorced? Put your Children's Welfare First

2011-09-21T08:21:00.000-07:00

Future Binge-Drinkers?

Would you like your child to be a binge drinker?

Would you like them to grow up with mental illness?

Would you like your children to grow up with an increased likelihood of relationship difficulties.. perhaps similar to those you are currently encountering with your spouse or partner.

If so - then be sure to allow your hurt, your pain, and your anger to turn your divorce into a lengthy, ongoing battle.

In today's Huffington Post, Dr. Eva M. Selhub exhorts parents to "Be Mindful of the Children" in divorce.

As Dr. Selhub points out:

While the parents in the divorce grapple with feelings of anger, worry, fear and confusion, the children usually experience even more fear and confusion. Often parents turn to their children for comfort, sometimes use them as pawns in the divorce war, and sometimes are blinded by their anger and fear to the impact their actions may have on the children in that moment or in the future. In the meantime, the children, unlike the adults, not having the capacity to understand what is happening, become increasingly confused and unsure of what their involvement needs to be to either bring the parents together, to "make things better" or to side with one side or the other.

Studies show that children whose parents divorce or separate before they are 5 are more likely to develop binge drinking behaviors by the time they reach their teen years versus parents who stay together or show high levels of parental warmth. The problems are not limited to drinking behaviors. Children can become more vulnerable to both physical and mental illness at the time of divorce and may develop problems with self-esteem, other behavioral problems or issues at school, and difficulties in forming healthy relationships.

However - experience shows that to the extent that parents can avoid using their children as supports in the divorce, to the extent that parents can set aside their personal differences in encouraging the children to have a healthy relationship with both parents, to the extent that parents can, well, be the "ADULTS" in the home, providing their children with warmth, love and security - that can mitigate many of the negative impacts that Divorce may have on their children.

So.

If you are very angry or hurt and feel the urge to demonstrate that, directly and indirectly to your children - by all means go ahead and do that, provided that your goal is to have your children grow up to be scarred and damaged.

If not - you might consider being mindful of your children, and making all effort possible to avoid allowing your divorce to become a lengthy war.

Lawyer: The Divorce Caddy

2011-09-20T07:38:00.000-07:00

Are you helping your client line up THEIR best option.. or YOURS?

My new job (well, part-time job) is a collaborative divorce blogger from Lethbridge, Alberta.

And part of that job entails getting up, having a coffee (or today, I'm having tea) and reading my Google Alerts to see what other people are saying about collaborative law.

And this morning I came across a somewhat critical blog by Gregory R. Nugent, a Washington D.C., and Maryland area family and divorce lawyer.

His commentary is relatively respectful of the collaborative process, but, overall, he suggests that it is a process which is perhaps being (to use his word) "foisted" upon clients who are inappropriate for the process, and he further suggests that the process is open for abuse by those who refuse to honestly disclose their financial affairs.

My response?

Firstly, no process, litigation or collaboration, should be "foisted" upon any client. At our best, as divorce lawyers, when guiding a client to consider their process alternatives, we should consider ourselves "caddies" on a golf course.

To begin with, you don't pull out your driver on the green, and you don't use your putter off of the tee box. Not every situation is amenable to collaborative work. Some cases don't require it because they are simple and straightforward. A short put in other words. Or maybe a small pitching wedge - perhaps brief mediation. Other cases present themselves as long drive. Where possibly the client feels they require the "driver" of the litigation process.

However - in the legal system, there are hazards all around us. And if the fairway (no pun intended) is narrow, you may still be better off leaving the driver in your bag, if an errant effort may put you in a much more difficult situation than a more prudent, controlled effort.

But - regardless - the bottom line is that we have many choices to present our clients, from "kitchen table" resolution, to mediation, to collaboration, to arbitration, to litigation. And that choice, at the end of the day, is the client's. Not the lawyers. Our job is to equip them with the right tools, make suggestions as to why they may or may not want to use one process or the other, and then respect them enough to allow them latitude to choose what is best for them.

No foisting.

Secondly - respecting disclosure concerns - which are always a source of criticism for those who don't practice collaborative law (and Gregory Nugent, fairly, confesses he doesn't) I would offer these two comments.

To begin with - what makes litigators (and I continue to be a divorce litigator) consider that they confidently can assert they have received full disclosure? If there is a shoe-box of cash under the bed, and the other party is willing to lie under oath, you will never know about that box of cash. A long time ago, I concluded a litigation, after trial, and several years after my client (former client) disclosed that he, in fact, had a large herd of cattle in the U.S. that he had never disclosed and in fact, boldly, lied about.

So much for perfection in litigation.

But - to be fair - and I've had this argument at IACP conferences and on the Collaborative Listserv, we do not cease our discovery skills in collaborative process. We do it kinder and always with respect - but that same curiosity that drives the discovery process should continue in collaboration. You need to obtain full and adequate disclosure. You need to ask questions to turn over the rocks (or the mattresses as the case may be) - and assure yourself that there appears to be full and complete disclosure. The Alberta Court of Appeal in Webb v. Burkett affirms that obligation - as it should.

And if you aren't getting full disclosure, and if there is reticence and obfuscation - well, it may well be that you need to withdraw from the process to assure your client's interests are served. However - my experience is those cases are, in fact, few and far between. That when clients and their lawyers commit to being open and honest - in most cases, they are.

So - is the Collaborative Process perfect? Nope. Is it appropriate for each and every divorce? Nope.

But while we can write an article, or perhaps a paper on the difficulties the collaborative process presents - and it is always evolving to the benefit of our clients - we can write volumes about the shortcomings of litigation as a perfect process choice.

Ask people who have gone through litigation. "Did you have fun?" "Was it quick?" "Was the outcome perfect?" "Was it cheap?" "Did you feel in control?" "Did it make it easier to parent with your former spouse?" "Did competing experts work well?" "Would you recommend it to your friends?"

Don't get me wrong.

I enjoy litigation. I get paid good money to enter the gladiators arena to do battle in the courtroom. And the adrenalin rush of a good cross-examination is truly a heady experience. And there is some truth to that great speech by Vince Lombardi, which ends:

"...I firmly believe that any man's finest hour, the greatest fulfillment of all that he holds dear, is that moment when he has worked his heart out in a good cause and lies exhausted on the field of battle — victorious."

It's truly a heady experience to succeed at trial.

But, sadly, my sense is that it is an experience which provides a much greater benefit to us, as lawyers, than it typically does for our clients.

So.

Go out and be a good caddy today.

"Family is Forever" - A Great Idea in Wisconsin, Could be a Great Idea in Alberta

2011-09-19T07:45:00.000-07:00

Collaborative Law in the news today.

The Milwaukee Wisconsin Journal Sentinel reports this past weekend that the Governor of Wisconsin and the Mayor of Milwaukee have recognized the reality that a divorce doesn't mean the end of a family - and that the WAY you get divorced can impact greatly on your children and yourselves.

As reported in the Journal Sentinel last Thursday:

Both Gov. Scott Walker and Milwaukee Mayor Tom Barrett have proclaimed next week "Family is Forever - Children and Divorce Awareness Week" in Wisconsin and Milwaukee, respectively. These proclamations do not speak to the rightness or wrongness of divorce. As these proclamations from two leaders suggest, this is not a political issue.

These proclamations do challenge us all to consider the impact of divorce upon children. And they do support the use of the collaborative practice in family law and for divorce in particular.

And the article goes on to support Collaborative Law as a process to help maintain a healthy family after divorce:

These proclamations do challenge us all to consider the impact of divorce upon children. And they do support the use of the collaborative practice in family law and for divorce in particular.

The guiding principle in collaborative practice is that despite divorce, a family can be forever. The collaborative divorce process has a simple goal: resolve family issues using professionals trained to do so without the destructive aspects of litigation.

The use of a collaborative team addresses the emotional aspects that emerge in such intimate conflicts and permits the development of a parenting plan by coaches trained in this area. It allows a financial "neutral" to prepare a detailed financial plan based on reality, not a "winner/loser" mind-set reinforced by the combative legal process. This allows the attorney to focus on the law rather than on other family issues for which he or she is not necessarily trained.

Well done Wisconsin.

Now, consider for a moment.

Governor Scott Walker is a conservative republican, in fact, he's recently been on the hot seat for his position on reducing public employees' ability to strike.

But the importance of maintaining civility and "family" transcends political boundaries.

At least in Wisconsin.

In Alberta - well, maybe not too much. At least for now. While current leadership hopeful Allison Redford has made overtures suggesting she is supportive of the process, to this point our Conservative government has chosen to ignore the promise of Collaborative law. And this is notwithstanding a policy proposal from the members of the PC Party passed at policy conference asking the government to do provide such support.

So.

If you think that "family is forever", if you think that the Alberta government should encourage Albertans to work out divorce issues collaboratively, tell your MLA. Ask them why our former Attorney General Allison Redford refuses to support collaborative law to resolve divorces.

And then - if you, or someone you know, is in the midst of a family breakdown - maybe mention Collaborative Law to them.

It might just save a family.

Because the "family" doesn't end when the marriage is over.

Who needs Collaborative Divorce?

2011-09-17T10:41:00.000-07:00

Who needs Collaborative Divorce in Alberta?

Easy answer.

People who are unable to easily navigate the minefields of emotions and complexities that may arise when they are facing a divorce.

People who wish to protect their children from the fallout that can accompany divorce.

People who wish to minimize the harm to their finances or businesses that may result from a runaway divorce train.

People who value the skills of lawyers, mental health professionals, and financial professionals who can offer their skills to help guide them to their optimal outcome in a divorce.

It is easy to say, "I want a fair way to get divorced."

But it can be very difficult to find your way without the assistance of skilled and trained professionals who are committed to help you make your way through divorce
without going to court.

If you are a person, or you know a person who might benefit from this kind of assistance, contact a collaborative professional through:

http://www.collaborativepractice.ca

The Anger Gamble

2009-10-29T06:00:00.000-07:00

Email is a dangerous tool. It is easy to create, is lightning fast, and once it's sent, it can't be unsent. How many times have we, in anger, sent an email and then regretted it. Why do we do that? Well, apparently there is a scientific basis for this.

At our recent IACP Conference, Dr. Jennifer Lerner has explained that anger has some interesting effects upon our decision making ability. According to Dr. Lerner:

Anger has been shown to bias perceptions of risk, which can fundamentally shape leaders’ most critical decisions. In one early experiment, we found that individuals who felt angry tended to engage in riskier behaviors than did individuals in a neutral emotional state.

In other words, when we are angry, we tend to minimize the risks of our behavior more than when we are not angry. How does this relate to Collaborative work? Well, consider ignoring the risks of our own behavior on:

financial outcomes ("I'd rather give it all to my lawyer than to give her one dime...";
parenting outcomes ("Look what your father has done to US");
personal outcomes (see the results of "stalking" and "harassing" behaviors);

Intuitively, I think we all know that anger has a negative impact on the quality of our decisions - however, the more that we learn about the physiological underpinnings of our emotions, the more we can see in a more predictable way just what those effects are.

The answer? Well, as we've learned, it's not to ignore the anger, it's not to just tell ourselves or our clients to "get over it" - it's to learn to recognize it when it occurs, and to examine it, and understand it. And when we understand it, we can learn to help diffuse it. So - for Collaborative professionals, recognize and discuss with clients the impact of anger on their welfare- that studies do show that they are inclined to make decisions that are not "risk adverse".

Anger is real. We cannot ignore the reality of it - however, we can learn to recognize it in ourselves or our clients, and we can educate them that perhaps, in the midst of anger, we are not at our best.

Collaborative Practice gives us the opportunity to help reduce the impact of emotion on our decisions.

Finding Inspiration in "Almost Famous"

2009-10-27T07:49:00.000-07:00

So.

I'm flying home yesterday from Minneapolis, and I'm sort of vegetating, a little bit tired, and I start watching "Almost Famous" on my computer. Truly one of my favorite movies, I've watched it about 50 times, but, I thought, I'll watch it again

And as I watch it, there is a scene between the young rock journalist with Rolling Stone (William Miller) and the lead guitarist for the band he is following (Russell Hammond), and the exchange that struck me was one where Russell was expressing his concern for his band being "exposed" by William's ability to see them as they really are, and not as they like to see themselves. During a quiet moment between the two of them, Russell makes this observation to William:

You're dangerous.. you see everything.
Most people, they're just waiting to talk. You listen.

Seems simple doesn't it? But in our work, I think it is perhaps quite profound.

As lawyers, we like to "explain" and "advise". And if we're not careful, we can get into a collaborative meeting and the two lawyers can dominate the conversation - with good intentions, but, well, there you have it.

We need to take William Miller's lead. We need to do more than "wait for our chance to talk." To be truly "dangerous" in attacking our client's problems, to be effective, we need to listen. We need to "see everything." Our talk needs to be less explanation and advice and more open, curious, questioning. To learn about our clients, and, through us, help them learn about themselves - what they need, what their interests are.

So - lesson learned from "Almost Famous".

..oh, and to borrow from another character in the movie, William's mother, Elaine Miller, as she exhorts Russell to move beyond his world of rock and roll "Valhalla decadence" and to aspire to something more:

"Be bold, and mighty forces will come to your aid."

Sitting at Gate C3.. What Did I Get Out of the IACP Conference

2009-10-26T08:04:00.000-07:00

Well, here I am sitting at Gate C3 at Minneapolis/St. Paul International Airport, reflecting on the conference. Every year I attend the IACP Conferences, and every year I pick up at least a couple of tools that help me be a more effective collaborator, helping my clients find solutions in the tempest which is the breakup of their marriage or relationship. From Vancouver, to Boston, to San Diego, to Atlanta, to New Orleans and now to Minneapolis, I have wandered, seeking the wisdom in this still developing Collaborative Practice phenomenon. It has been a most interesting and enjoyable journey for me.

This last weekend, I think what has sunk in with me most is the deeper understanding of the very real physiological underpinnings of conflict.

To help people find solutions in family conflicts, we need to help them be their "most functional", and that isn't when their emotions are their least understood and least controlled. At it isn't enough to tell them to ignore their feelings - in fact, that sort of advice, apparently, makes it worse.

We need to firstly - more than ever - help clients through the use of coaches - counselors who help clients sort out their feelings and how best to respond to those feelings. Everyone could use at least a little support sorting out their emotions in a relationship breakdown - even those who think they are functioning at the highest levels. And that goes for their lawyers too, we've learned.

Beyond having good and supportive coaches, the lawyers have to be aware of those emotions, identify them, and then work to understand where they are coming from. From that recognition and analysis, we can then move to taking away from those emotions the power to over-ride our need to engage our "right brain" so that we can make the best decisions possible.

We learned, for example, that being able to predict pain makes it more bearable and actually reduces the effect that anger and fear can have on us. So - normalize those emotions. Tell our clients, "It's ok to be upset and to be angry. You will likely find moments during negotiations where you are going to be upset and angry - and when that happens, let us know. Let me know. And then, we're going to deal with it. We're going to explain in non-combative language, "I'm feeling angry, or sad, or frustrated when...this... happens." And then we'll find a way to, if not have your spouse agree with you; at least understand your feelings and why you feel them.

In doing this - with your client or yourself, it reduces the power that those emotions have to cloud our rational thought process. It increases our own personal power to work beyond the upset and the anger, and gives us the best chance of finding resolution in a respectful and constructive manner.

So - easy to say, now it's going to take some work to implement.

But, I think, the work is worth it.

Collaborative Law - in the interests of families and children..

2009-10-24T22:13:00.000-07:00

Call to all Bloggers.. support Collaborative Law and Collaborative Practice!

Today there was an article in the Globe that is certainly going to raise some eyebrows regarding Family Law, and specifically, custody of children after divorce in Canada. As reported in the Globe and Mail, recent statistics of "Parental Alienation Syndrome" suggest that mothers are more likely than fathers to engage in parental alienation - where one parent "systematically brainwashes a child into hating the other parent".

The report also suggests that notwithstanding this data, the Court is less likely to direct counselling for women than men in alienation cases.

As a family lawyer for some 24 years, I guess I'm not shocked by these findings, though, with the statistical sample, it's difficult, I think to make these generalizations regarding gender - however, it does point to an inescapable reality - that the anger and bitterness in Divorce is a cancer than spreads to the parent's children if left unchecked.

I'm the Vice-President of the Association of Collaborative Lawyers of Alberta, and am also involved with the International Association of Collaborative Professionals and as such, I am a huge promoter of "Collaborative Law" or "Collaborative Practice".

For those who may not have heard of this - it is a negotiation process where lawyers who have obtained training in mediation or "interest based" (non-confrontational) negotiation, must sign a contract with their clients that, among other things, disqualifies the lawyers from ever going to Court for their clients. Yes - lawyers designed a process where they, and their clients, are required to resolve their differences respectfully, without any possible recourse to the Court process.

Often this negotiation includes a "team" approach where the parties also hire a "child specialist" to help the parents learn what is needed to help their children, a financial specialist to help sort out financial issues, and a coach or coaches to help facilitate an effective negotiation process.

This process has, throughout Canada, the U.S.A., and in fact the world, has shown great promise in helping people find a civilized way to move beyond one of the most painful processes in their lives.. particularly when they have children.

So - as we see Globe articles on the carnage which divorce can visit upon children - be aware that there is a growing group of committed lawyers who actually want to do something that helps people resolve problems respectfully, and in a manner which gives their children a chance at a happy future where divorce does occur.

For more information on the Collaborative Process, links are here:

http://www.collaborativelaw.ca

http://www.collaborativepractice.com

What is Collaborative Practice?

2009-10-24T15:53:00.000-07:00

Collaborative Practice, including Collaborative Law and interdisciplinary Collaborative Divorce, is a new way for you to resolve disputes respectfully -- without going to court -- while working with trained professionals who are important to all areas of your life. The term incorporates all of the models developed since IACP's Minnesota lawyer Stu Webb created Collaborative Law ideas in the 1980s.

The heart of Collaborative Practice or Collaborative Divorce (also called “no-court divorce,” “divorce with dignity,” “peaceful divorce”) is to offer you and your spouse or partner the support, protection, and guidance of your own lawyers without going to court. Additionally, Collaborative Divorce allows you the benefit of child and financial specialists, divorce coaches and other professionals all working together on your team.