Cooperative Solutions

Articles

28

Mar'16

WHAT ROLE, IF ANY, SHOULD CHILDREN HAVE WHEN PARENTS SEPARATE?

WHAT ROLE, IF ANY, SHOULD CHILDREN HAVE WHEN PARENTS SEPARATE? Dr. Barbara Landau, Cooperative Solutions September, 2006 One of the most frequently asked question is “Should children have a voice when parents separate and are working out Parenting Plans?” This issue is raised when parents are participating in mediation and/or collaborative practice. I can anticipate several concerns that may be raised. Are children’s voices needed? There are a number of arguments that suggest children should NOT be involved; namely Aren’t parents the most effective and relevant voice? If the goal is to empower parents, why undermine their authority andexpertise about their own children by involving children directly? If conflict is so harmful to children, isn’t it unfair to invite them into themiddle of disputing parents? Wouldn’t it create tremendous guilt in children if they were put on thespot to select one parent over another? Wouldn’t it induce parents to bribe or threaten their children if theyknow children would have a voice? Since children try to avoid rules and limits wouldn’t they just select theparent who had the fewest expectations – which would not be in their best interests in the long run. Why should children have a voice? Arguably separation affects children the most. Children feel the most out of control about a decision over which they have no choice. One child told me that “separation feels like being on a roller coaster without a steering wheel”. The vast majority of children, if given a vote in their parent’s divorce would opt for the family remaining together and working things out. Since this option is not available to them, giving them a voice restores some feeling of control. Children often have unique perspectives on their situation and what they need to assist their adjustment. Their issues are usually very different from those of their parent’s, who are often caught up in their own emotional pain and in a win/lose struggle for control over the children. Children have opinions, and not asking for their input means theirviews and preferences are often overlooked. As with adults, when our views and preferences are ignored we often resist even reasonable solutions. To achieve better by-in and to ensure the children’s concerns are addressed, their voices need to be heard. Siblings who are different ages, different genders, who have different personalities or temperaments, different interests or significant needs will have very different perspectives, which are often overlooked when children are not interviewed individually. Younger children (as young as 4 years of age) often are able to articulate questions, concerns, fears and constructive suggestions. Not to invite their input means that that these issues are left unaddressed or continue to cause unnecessary stress, and creative options are overlooked. As children get older (eg over 14 years) they may “vote with their feet” and refuse to follow a plan that is imposed on them. In these cases parents often blame each other for “inducing” a child to take sides Having a voice does NOT mean DECIDING and this must be clarified up front. Parents decide unless a child is 14 or older, in which case it is hard to impose an unpopular outcome. Also, children should NOT be asked to ‘pick a parent’ as this does put children in a very difficult conflict of loyalties. Most preadolescent or adolescent children want to be assured they will not be asked to take sides. Meeting with children also allows an opportunity to discover issues of abuse, neglect or special learning needs that parents may not be aware of or willing to reveal. How can children’s voices be heard? Collaboratively trained lawyers are not trained in child development and usually do not have the training or skills to interview children. They should NOT directly involve children themselves as the potential damage would outweigh the benefits. It would be like bringing back the outdated practice of Judges interviewing children in chambers; an experience that was frightening, not in keeping with the child’s developmental stage, often disrespectful of appropriate boundaries, and methods of framing questions. Also, collecting affidavits from relatives, friends and neighbors is a divisive practice and of very little use as the basis for a problem solving conversation. The goal should be to provide the parents and collaborative lawyers with the information needed to have a constructive problem solving conversation with the parents about significant issues that will impact the child’s development or contribute to or prevent the successful completion of a Parenting Plan. There are a number of resources available to include the child’s perspective: A mediator or child therapist who has mental health training and is experienced in meeting with children can assist. Ensure that this individual is bound by the same Collaborative Participation Agreement as the mediator and lawyers. Invite impartial comments from the child’s therapist, teacher, guidance teacher, day care provider or family doctor with respect to any special considerations with respect to the child’s academic, health care, social or emotional status. It is essential that the focus be on holding a problem solving discussion of issues to protect the children’s wellbeing – eg “How can we best address the child’s need for asthmatic medication?” or ”How can we best support the child’s learning disabilities by involving a remedial specialist, following up on the specialist’s recommendations, and encouraging our child’s progress?” What type of contribution would children likely make? This brings up the question of the focus of the child’s involvement. In my experience giving the child a voice can contribute in a number of ways: They can indicate the relative importance of factors, such as remaining in the matrimonial home, the same school, attending a private vs. a public school, attitudes towards living in an apartment vs a detached home, being close to friends, etc. Often divisive issues can be resolved by such input. Children can indicate whether they are ready/or not ready to meet new partners. Children can indicate their level of comfort with the response of extended family members to the separation and whether these relationships provide helpful sanctuaries from the conflict They can reveal abuse by parents, new partners or extended family members. They can make suggestions about the degree of structure or lack of structure to visitation patterns that best meets their needs at the time, the priority to be given to their own activities eg one child said that the plan being considered by his parents didn’t take his basketball schedule into account, another said she wouldn’t be able to participate in Friday night pizza get togethers with her friends. Special concerns can be addressed, eg “Who will feed the dog or the goldfish?”, “How will I get the school bus from my Dad’s?”, or “I only have one bed, where will I sleep at my Dad’s?” Some children worry about whether a divorce means that they will only be allowed to see one parent. What a relief to learn this is not the case!Clearly the topic of giving children a voice is an important one for interdisciplinary cooperation! ———————————————————————————————————— Dr. Barbara Landau, President, Cooperative Solutions, is a psychologist, lawyer and mediator who offers Mediation training & Interdisciplinary Collaborative Law training. For training information call Carol at (416) 481-3651 or refer to our website at www.coop-solutions.ca A similar article appeared first in Matrimonial Affairs, the Family Law Newsletter of the OBA in January, 2005 and in the Family Mediation News, Spring, 2005 and Collaborative Review, Spring, 2005. © Dr. Barbara Landau – Cooperative Solutions

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28

Mar'16

ADR Youth Initiative: Strategies for Resolving Conflicts in Schools and Communities

ADR Youth Initiative: Strategies for Resolving Conflicts in Schools and Communities Dr. Barbara Landau, Leslie H. Macleod, & Daryl Landau An exciting initiative has been launched by the Alternative Dispute Resolution Section of the Canadian Bar Association of Ontario. We are planning to involve students in a dialogue on the benefits of interest-based conflict resolution, including mediation and negotiation. Building on the successes that many schools have achieved with peer mediation programs, we wish to spur creative ideas on how to apply these approaches to communities, schools, families, and beyond. On 2 separate days beginning in February of 2001, a total of about five hundred students and staff will participate in a conference on interest-based conflict resolution. Morning activities will include dramatic presentations from a high school theatre group and an inspiring keynote speaker. The students will learn the difference between interest-based, rights-based and power-based approaches to conflict resolution. In the afternoon, the students will participate in a brainstorming session on how to apply interest-based approaches to their schools, homes and communities. The students will be selected based on motivation, diversity, and interest. These students and staff, would then return to their schools motivated and supported to implement some of the ideas that they helped develop. To plan and carry out this initiative we have partnered with 12 school boards from Toronto through to Hamilton as well as 3 police forces, a national youth organization (YouCAN), and the Psychology Foundation of Canada. Our hope is that this conference would develop some positive approaches to address some of the recurrent challenges facing schools and communities. For instance, violence is an unfortunate part of life in schools, and we need broad and diverse approaches to deal with it. Mediation and collaborative negotiation processes offer a positive strategy that can prevent some conflicts from escalating. Moreover, they require communication skills that are highly valued in the workplace and in interpersonal relationships. We need the involvement and commitment of young people to address these important issues. To that end, we have geared the conference toward empowering students to create their own ideas as to how conflict resolution could help them and their communities. Moreover, these students will be facilitated by youth facilitators supplied by YouCAN and the school boards. The conference plan and the many creative ideas produced at the conference will be collected and distributed in a booklet to interested schools and community organizations. The Psychology Foundation of Canada has offered to help produce these booklets. Indeed, based on positive reactions to this proposal, we anticipate that this initiative will be replicated province-wide. We are using a community-based approach as the model for this initiative. We provide the template, and local communities can adapt the template to their needs. These local communities will be responsible for arranging their own funding and logistics. Finally, to cap off this conference with style, we are asking that the city of Toronto and the Province of Ontario establish a Conflict Resolution Month. A declaration to that effect could be made at the youth conference. Such a declaration would contribute to building an ongoing relationship between governments at the provincial and municipal levels, the ADR community, and the public, with the common interest of resolving conflicts with efficiency and nonviolence. With this day as a catalyst, we plan to invite some of the students to report back at a future event about the action plans emerging from the day. Our hope is that this initiative will be the basis for an annual event to ensure a sustained interest in peaceful and constructive conflict resolution. We have generated considerable enthusiasm for this initiative, which we hope will be a catalyst for a many future events across the province. Corporate sponsors, government and foundations have come forward to donate financial support to this undertaking. We are pleased to have the following sponsors: The Harold Ballard Foundation, Cedric Metcalf Foundation, The Psychology Foundation of Canada along with other supporters. We are more than halfway to our goal, but would love to hear from anyone who is interested in making this dream a reality! This article is adapted from one that appeared in the October 2000 issue of The Lawyers Weekly. A similar article was published in the Summer, 2000 issue of Interaction. Note about the authors: Dr. Barbara Landau, President of Cooperative Solutions, is a psychologist, lawyer & mediator who offers training and conflict resolution for family and workplace disputes. Leslie Macleod is the principal of Leslie H. Macleod & Associates where she mediates commercial and public policy disputes. Daryl Landau is an organizational conflict consultant with a Masters in Conflict Resolution from George Mason University. Note: This article originally appeared in an October, 2000 issue of The Lawyers Weekly.

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28

Mar'16

DOMESTIC VIOLENCE POLICY: LESSONS STILL TO BE LEARNED

DOMESTIC VIOLENCE POLICY: LESSONS STILL TO BE LEARNED Barbara Landau & Niki Landau We are writing in response to a recent report entitled “Abused Women in Family Mediation: A Nova Scotia Snapshot”. This report consists of the narrative stories of 34 women interviewed individually, as well as 59 women who participated in discussion/focus groups. These stories are disturbing and should serve as a wake-up call to all mediators and other professionals in the justice system who think that the issue of domestic violence has been adequately addressed. We can all learn from the experiences of abused women and apply these insights to improve training standards, the criteria for referral and screening, the conduct of cases where safety or intimidation are factors and alternatives when mediation is not appropriate. Our purpose in this article is to underline many of the concerns raised in this study and to encourage family mediators, judges and lawyers to recognise the limitations of both mediation and the present justice system in addressing the concerns of abuse survivors. We will highlight areas of agreement and raise concerns about one of the report’s important recommendations. These issues have implications far beyond family disputes and deserve consideration in all cases where parties are in a power imbalance and procedural safeguards are not in place. The report highlighted a number of concerns that should be addressed, namely: Judges who referred parties to mediation, or conducted mediations themselves despite full knowledge of abuse allegations, protective orders, charges and/or convictions, or who encouraged mediation even after mediation screening revealed violence or fear of violence. Inconsistent screening for abuse issues by mediators and conciliators. Many women did not recall any screening for abuse or control, or being questioned at all about the history of their relationship. Mediators who did screen, but did not inquire about the full extent of abuse. That is, they did not ask about psychological, sexual, or economic abuse, stalking or other forms of power and control. Mediators who did screen, but did not screen out cases in which women stated that they could not negotiate safely, fairly or without intimidation. For example, women whose partners who were suffering from serious (untreated) mental disorders, or cases in which women reported harassment, control or emotional abuse, in the absence of physical abuse. Mediators who did not appear to understand the dynamics and cycle of abuse and who rarely offered to modify the mediation process (for example by offering shuttle mediation), who did not employ power-balancing techniques ( for example asking the woman if she would feel more comfortable with a support person or her lawyer present), did not introduce safety measures (for example asking the abuser to arrive first and leave last to reduce the possibility of stalking or intimidation immediately before or after sessions). Mediators who were aware of abuse failed to protect women by revealing information that could jeopardise the safety of women and their children. Mediators who were aware of abuse and did not discuss the disadvantages of mediation or offer alternatives, including other community resources that might have been more appropriate for both parties. Many other examples were given, but it is clear that the women who were interviewed did not feel that their concerns about negotiating with an abusive or controlling partner were properly addressed by the judiciary, mediators or at times by their legal counsel. The report contained a number of recommendations with respect to screening, training and accountability, voluntariness and informed choice, access to legal advice and support persons and contained specific recommendations from various cultural groups. These recommendations echo many of the conclusions reached in the “Report from the Toronto Forum on Women Abuse and Mediation” published in 1993. This Report was the catalyst for the abuse policy unanimously adopted by the Ontario Association for Family Mediation as part of its Code of Conduct for mediators the same year. Copies of both Reports (in addition to the Nova Scotia Report) can act as an important reference for provinces that have not as yet developed a detailed policy framework. We have summarised below some of the key provisions. It is important to note that there is one significant difference in the conclusions reached in the Ontario and Nova Scotia reports. We will address this difference first. In the Nova Scotia report, the recommendation was that women and partners of women who report abuse, including emotional, psychological, sexual, and financial as well as physical abuse, should be screened out of mediation by conciliators and mediators. Screen-outs based on reported abuse should take place on a zero-tolerance basis by intake workers, conciliators and mediators. Decisions about participation should not be left to the discretion of either legal party. In Ontario the central premise of the abuse policy reflected the same concerns about mediating in cases of abuse. However, rather than a zero tolerance screen-out policy, the conclusion reached was that where abuse or control issues exist, there should be a rebuttable presumption against the use of mediation. This presumption could be rebutted only if both parties met the following considerations “Parties to mediation must be able to negotiate safely, voluntarily, and competently in order to reach a fair agreement. If the level of domestic violence is sufficient to jeopardise a party’s ability to negotiate without fear or duress, the case should not be mediated. The criterion should be the victim’s ability to participate effectively.” An important distinction is that victims were given the opportunity to rebut the presumption against mediation if they wanted to choose mediation and if BOTH parties could satisfy the mediator that they had the capacity and willingness to mediate safely and without duress. In such cases, screening would be ongoing, independent legal advice would be a prerequisite and a specialised process that focused on a safe environment would have to be offered. Also the right to have a support person present would be discussed. The advantage of this approach is that it does not take away an abused woman’s right to make the decisions that she feels are best for her and the children. Some other important features of the OAFM policy include: “Prior to commencing mediation, all clients should be screened (separately) for any occurrences of abuse to determine which cases are inappropriate for mediation, which require additional safeguards, in addition to or instead of mediation, and which should be referred to other resources.” “Screening should continue throughout the mediation process.” “The issue of voluntariness is critical when it comes to creating a safe place for couples to meet and negotiate.” “Clients should be strongly encouraged to consult with attorneys prior to mediation and certainly before an agreement is finalised.” “Mediators must be knowledgeable about abuse” and the training should include: – physical and psychological abuse and its effect on family members – the impact on children, including witnessing abuse – effective techniques for screening, implementing safety measures and safe termination – appropriate resources, in addition to or instead of mediation – sensitivity to cultural, racial and ethnic differences that are relevant to domestic violence and may have an impact on mediation “Where a decision is made that mediation may proceed, mediators need to meet standards of safety, voluntariness, and fairness. When mediators have concerns, they should inform their clients that they are not neutral about violence or safety. Mediators should inform clients that they have a positive obligation to report past or present child abuse and threats of future abuse to any of the participants.” The policy then sets out a number of ‘Procedural Guidelines” for cases in which mediation does proceed. In addition to the concerns already raised, we believe that a more systemic problem faces provincially funded, court connected mediation services. That is, there is pressure to conduct the mediation quickly, without allowing the time necessary to obtain a proper history, screen for violence, control, and power imbalances and then to design a process that meets the clients’ needs. It is not possible to conduct safe, responsible mediation unless there is time to determine, in separate interviews, whether parties are participating voluntarily and are able to make informed decisions, in a safe environment, free from duress. Also, the cuts to legal aid have meant that women often feel they have no choice but to proceed with mediation, since it is often less expensive than independent legal advice and litigation. In cases where there is a financial need, particularly when abuse is an issue, legal aid should be readily available to ensure that all parties are informed and have an advisor to review what processes and outcomes would be fair and appropriate. For mediators who practice in areas other than family law, many of these issues are relevant when there are questions about voluntariness, equal bargaining power, informed consent, or the presence of threats or coercion. Similar concerns and a need for training and procedural safeguards exist in such applications as harassment cases (including sexual harassment), elder abuse, employee-employer, victim-offender, and international or community disputes between groups with unequal bargaining power. The report from Nova Scotia is a timely reminder that we need to continually review our policies and practices in the interest of the parties we assist. Notes re Authors: Dr. Barbara Landau, President of Cooperative Solutions, is a lawyer, psychologist, mediator and trainer who specializes in family and workplace disputes and is past chair of the Domestic Violence Committees of the Ontario Association Family Mediation and the Academy of Family Mediators. Niki Landau, Training Coordinator at St. Stephens Community Mediation Centre, is a trainer, mediator and actor, who participates in Family Mediation, Domestic Violence and generic mediation training programs. This article was originally published in the Summer, 2000 issue of Interaction.

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28

Mar'16

Collaborative Law, Collaborative Divorce & Collaborative Mediation: Building Cooperation between Professionals and Separating Spouses

Collaborative Law, Collaborative Divorce & Collaborative Mediation: Building Cooperation between Professionals and Separating Spouses Dr. Barbara Landau Fall, 2002 President, Cooperative Solutions This paper will highlight three relatively new choices to assist separating couples: Collaborative Family Law (CFL) , Collaborative Divorce and Collaborative Mediation. For mediators, the Collaborative Mediation model in particular, promises to blend the best of mediation with the newly acquired skills of collaborative lawyers. 1. What is Collaborative Family Law? First and foremost CFL represents a paradigm shift from the traditional role of a lawyer. Fundamentally, CFL blends interest based negotiation theory and mediation skills with the ability to problem solve. The result is that collaborative lawyers act as legal advisors, respectful role models and coaches for their clients. The clients are encouraged to take the primary role in negotiating agreements that they believe will meet their own and their children’s needs. The lawyers’ knowledge and creative problem solving skills are directed at reaching an integrative solution that everyone can say ‘yes’ to and that the parties feel committed to uphold. Steps in the Collaborative Family Law Process a) The process consists of an initial meeting between a lawyer and his /her client in which a range of options are discussed for addressing the issues in a separation or divorce. The clients learn that CFL is not adversarial or litigation focused. In fact, both clients and their lawyers must sign a Collaborative Participation Agreement at the outset, agreeing not to litigate if an impasse is reached. What this means is 100% of the lawyers’ and clients’ effort is directed at finding a win-win solution. Should that not be possible, the lawyers must withdraw and turn the matter over to counsel from a different firm. If both clients select CFL during a meeting with their own counsel, then a series of 4 way meetings are scheduled. b) Prior to the first 4 way meeting the lawyers meet, preferably in person, to develop a positive working relationship, share general observations about their clients (eg How they are adjusting to the separation? What issues need to be addressed? Are there urgent issues? Etc.), agree on a date, location and agenda for the first 4 way meeting, including how the initial meeting will be conducted and conflict management strategies. It is crucial to the success of the collaborative process that the lawyers create the mindset of a “team effort” to reach a mutually acceptable settlement. While each lawyer is still in the role of an advisor and advocate for his/her client, the goal is not “winning over” the other party, but “winning with” the other party, in a way that benefits all affected family members. c) Prior to the first 4 way meeting, each client meets with his/her lawyer to prepare. The most important item is to ensure that there is a real understanding of the terms of the Collaborative Participation Agreement, including that both lawyers are obligated to withdraw if the matter goes to court, that full and frank disclosure is required as soon as possible, and that good faith negotiations are essential. Then, the agenda for the 4 way meeting is discussed and the issues and priorities are clarified. Unlike the traditional 4 way meeting, the focus is not on the preparation of legal arguments, but rather on explaining the interest based approach to constructive problem solving, the importance of respectful communication, and how to utilize the tools of Active Listening and “I” Messages. Also, it is important to clarify the roles of the lawyers and clients in a collaborative process. In the traditional process, lawyers usually speak on behalf of the clients and argue the merits of their client’s position. In a collaborative process, the lawyers encourage the clients to take the lead, with their assistance, in actively seeking a win-win outcome. Lawyers need to explain to their clients that the lawyers will address questions and make supportive or validating comments to the “other side” in an effort to build a positive working environment. Clarifying expectations in advance can prevent misunderstandings and disappointment. At this point each lawyer may recommend that his/her client take advantage of supportive counselling in relation to the separation or consider the use of impartial professionals for addressing some of the family law issues (eg a mediator for parenting issues, a business valuator or actuary to value pensions, etc). d) At the first 4 way meeting the Collaborative Participation Agreement is read, discussed and signed by both lawyers and clients and before substantive issues are addressed, the participants agree on guidelines for respectful communication (both within and between sessions), and a process for resolving conflicts or addressing potential impasses. They also agree to protect the children from being caught in the middle of their disputes. Then, the issues are clarified, prioritised and any urgent matters addressed. Agreement is reached on the documents needed for disclosure, a reasonable time frame is set, relevant impartial professionals are added to the collaborative team with everyone’s approval and tasks are assigned to each participant to complete prior to the next 4 way meeting. One of the lawyers takes notes of the agreements reached and prepares a summary, including the agenda for the next meeting. For example, it may be that the parties engage (or have already seen) a mediator to create a parenting plan, a pension valuator to determine the value of a pension, one or more real estate agents to appraise the home, etc, so that all relevant appraisals are ready for the appropriate 4 way meeting. Clients no longer engage partisan experts who surprise the other side with values that appear ‘optimistic’, assets do not mysteriously disappear and insurance proceeds do not find their way to pet canaries until both parties agree that all reasonable family responsibilities have been met. In between meetings, the lawyers review the progress being made both with their clients and with each other and additional 4 way meetings are held until an agreement satisfactory to the participants is reached. This agreement is signed at a final 4 way meeting. While the role of the lawyer is still to represent his/her client, collaborative lawyers are bound by special Rules of Conduct that encourage constructive problem solving and discourage hostile correspondence, angry affidavits, threats of litigation, take it or leave it offers or other intimidating or power based tactics. They are required to withdraw if their clients do not act in good faith or if litigation is pending. Therefore the lawyers, as well as the clients have a considerable investment in a successful resolution. 2. What is a Collaborative Divorce? A Collaborative Divorce involves an integrated, cross-disciplinary team model for delivering professional services to divorcing clients. It is the legal equivalent of a multi-disciplinary team in the mental health field. In cases that require a range of expertise, for example to assist parents as a communication coach, or with developmentally appropriate parenting plans, or to value a business, the family can benefit from the co-ordinated efforts of several professionals, all acting in an impartial capacity, to resolve their outstanding issues in a non adversarial manner. While other professionals may be added to a CFL case, the Collaborative Divorce tends to be more of an ongoing working relationship between team members rather than an ad hoc arrangement. A process similar to CFL is followed with respect to the role of the lawyers, but others assist as needed and as determined by the person who is acting as a “case coordinator”. As with a CFL case, those professionals who are assisting the couple must agree to withdraw if the matter goes to court. 3. What is Collaborative Mediation? Collaborative Mediation is process that begins with clients selecting mediation as their preferred method of dispute resolution. These clients frequently have not yet seen a lawyer or have had minimal contact and not yet retained counsel. They are usually anxious about involvement with lawyers, fearing that their hopes for a non adversarial resolution will be disappointed. They are usually worried about losing control of their decision making and prefer a process that encourages them to design their own terms for separation. Collaborative Mediation offers this opportunity. As mediators we are obliged to send people for independent legal advice. Now we can include the lawyers under the umbrella of a Collaborative Mediation Agreement and have the mediator, both clients and both counsel committed to the same non adversarial process. In some cases the mediator will assist the parties to mediate all issues (comprehensive mediation) and the lawyers will attend a preliminary 5 way meeting to clarify roles and time lines and will not meet again unless a difficult issue arises, an impasse is reached, or the Memorandum of Understanding is ready for review by the lawyers. In other cases, the mediator may assist with the parenting plan and then transfer primary responsibility for financial issues to the collaborative lawyers. In any case all will have signed a Collaborative Mediation Agreement. 4. What are the advantages of the Collaborative Mediation and the other Collaborative models? Most clients that I see retain mediators before they have lawyers. Their prime motive for seeking mediation is frequently to avoid an adversarial battle. The client’s concern is almost always that if lawyers are involved, they will end up in the “divorce from hell”, it will undermine their ability to cooperate with their ex spouse, it will cost a fortune, and the psychological stress will have a terrible impact on them and their children. Despite this resistance, mediators are subject to a Code of Conduct that requires that they make every effort to ensure that their mediation clients are protected by having independent legal advice. While most mediators comply with this requirement, many acknowledge that their worst nightmare is that mediation clients, who have managed, with difficulty, to set aside their anger and hurt feelings, will be drawn back into an adversarial battle by their lawyers. The best protection for the clients is a referral to collaborative lawyers. This is also the best way for the mediators to be sure that the clients will complete an agreement cooperatively. CFL and Collaborative Mediation offer many of the benefits of traditional mediation, but with the additional safeguard of the lawyers’ presence for high conflict separations. Also, financial disclosure completed in a collaborative manner is likely to be more efficient. One of the guidelines requires that the parties make full disclosure of all relevant information at the earliest opportunity to ensure a fair and expeditious settlement. This has the effect of building trust between the parties, an important element in any successful settlement. If special expertise is needed, a single agreed upon expert (such as a pension valuator, a business appraiser, etc) can be jointly retained. This saves the client money and minimizes any hostility, caused when one parent feels excluded from important decisions or that they have been presented with a “take it or leave it deal”. From the lawyer’s perspective, the practice of family law would likely become far more appealing. Few members of the Bar experience pleasure knowing they have “won” a case, and in the process done significant harm to future relationships with children, grandparents and friends. Also, Family Law is very stressful for most lawyers. Clients, who are extremely unhappy and fearful about their future, often take their lawyers along on the roller coaster ride. Collaborative lawyers and clients stand to benefit from the involvement of mediators. What mediators can gladly offer to Collaborative lawyers, are clients, along with the promise to the clients that their case will not end up in court! In the future, I plan to restrict my referrals to those trained as Collaborative lawyers or mediators. In the future, CFL will likely be applied to other areas where the need for an ongoing relationship or the cooperation of parties is needed, for example, estate matters, partnership disputes, environmental issues, victim -offender cases, and neighbourhood disputes. Note: Dr. Barbara Landau, President, Cooperative Solutions, is a psychologist, lawyer, mediator and trainer who specializes in family and other relationship disputes. She offers courses in Family Mediation and Collaborative Family Law. . This article was first published in the Fall, 2002 issue of Interaction, the Newsletter of Conflict Resolution Network Canada www.crnetwork.ca

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28

Mar'16

COLLABORATIVE FAMILY LAW: AN OXYMORON OR A STROKE OF GENIUS?

COLLABORATIVE FAMILY LAW: AN OXYMORON OR A STROKE OF GENIUS? Barbara Landau, Psychologist, Lawyer, Mediator, Trainer President, Cooperative Solutions There is an exciting development in Family Law that has spread to Ontario via the US and Western provinces. I am speaking about a non-adversarial option for separating or divorcing couples that blends the skills of mediation, with the problem solving skills of lawyers. It has much to offer to clients whose lawyers are adequately trained and willing to follow the Rules of Conduct. What is Collaborative Family Law? First and foremost it represents a paradigm shift from the traditional role of a lawyer. Fundamentally, a collaborative lawyer uses his or her skills to model and teach clients how to be effective interest based negotiators. Collaborative lawyers act as legal advisors, respectful role models and coaches for their clients. The clients are encouraged to take the primary role in negotiating agreements that they believe will meet their own and their children’s needs. The lawyers’ knowledge and creative problem solving skills are directed at reaching an integrative solution that everyone can say ‘yes’ to and that the parties feel committed to uphold. This process has many similarities to mediation; namely; it allows opportunities for the parties to gain a greater understanding of each other’s needs, to build trust, and promote agreements that are fair and will last. The process is designed to encourage greater buy-in to the resolution. What Collaborative Law is NOT, is adversarial or litigation focused. In fact, both parties and their lawyers must sign a Retainer contract at the outset, agreeing not to litigate if an impasse is reached. 100% of the lawyers’ and clients’ effort is directed at finding a win-win solution. Should that not be possible, the lawyers must withdraw and turn the matter over to counsel from a different firm. Collaborative lawyers are bound by Rules of Conduct to encourage constructive problem solving and discourage hostile correspondence, angry affidavits, threats of litigation, take it or leave it offers or other intimidating or power based tactics. What are the benefits of a collaborative process for lawyers? From the lawyer’s perspective, the practice of family law would likely become far more appealing. Few members of the Bar experience pleasure knowing they have “won” a case, and in the process done significant harm to future relationships with children, grandparents and friends. Also, Family Law is very stressful for most lawyers. Clients, who are extremely unhappy and fearful about their future, often take their lawyers along on the roller coaster of emotions that is exacerbated by an adversarial system. Also, an increasing number of families cannot afford the cost of litigating. The Family Courts are filled with unrepresented litigants who have despaired of affording legal assistance for the multitude of steps (motions, case conferences, cross examinations, settlement conferences, etcetera) they are required to take on the path to trial. If the lawyers were directing all their efforts toward reaching an agreement satisfactory to all, the process would be streamlined, much more affordable and less emotionally draining. What are the benefits to the client of taking a collaborative approach? First, mediation and Collaborative Law recognize that when relationships will continue, such as when there are children, the less adversarial the approach, and the more control by the parties themselves, the more likely the settlement will last. Second, Collaborative Law offers many of the benefits of mediation, but with the additional safeguard of the lawyers’ presence for high conflict separations. The presence of collaborative lawyers adds an additional element of containment to potentially volatile cases. While aspects of the case, such as the details of a parenting plan, the involvement of extended family or new partners, may still be worked out with a mediator, many aspects of the case can be negotiated in a 4 way meeting between lawyers and clients. Third, if special expertise is needed, such as a pension valuator, a business appraiser, a counselor for the parents and/or children, these can be agreed upon in a non-adversarial manner, saving the client money. Fourth, financial disclosure completed in a collaborative manner is likely to be more efficient and cost effective. One of the guidelines requires that the parties make full disclosure of all relevant information at the earliest opportunity to ensure a fair and expeditious settlement. The emphasis on constructive problem solving is both efficient and reassuring to clients who already feel their lives are out of control. What concerns are typically raised about this approach? Lawyers in particular express concern about the requirement to withdraw if a matter reaches an impasse and is headed to court. Lawyers argue that it is unfair to clients to change lawyers. Also, they point out that considerable time was spent building rapport and it would be stressful – and expensive, for clients to begin a relationship with someone else. The reply is that if lawyers and clients know that the lawyer must withdraw if the case goes to litigation, everyone will have a strong incentive to settle. Finally, not every client, and not every case is suitable for a collaborative approach. If a case is precedent setting or if the clients are at risk of harm, a traditional process will likely be preferable. Collaborative Law is not intended to replace traditional approaches, but rather to add a creative choice to the menu of options available to clients. While this approach has begun in family cases, it has considerable appeal for all cases involving ongoing relationships. The Collaborative Family Law Association is currently forming under the skillful and enthusiastic guidance of Jim MacDonald. To date we are organizing standards of training, membership requirements, a code of conduct, precedent materials and training programs. In Toronto, the standards are attendance at an approved 2 day Collaborative Law Theory program and a 3 day Collaborative Skills program. In other jurisdictions the requirements for entry into the Association have been a 40 hour mediation course and a 2 day program in Collaborative Law. For information about the courses offered through Cooperative Solutions please contact Alyson McNiece. Note: Dr. Barbara Landau, President Cooperative Solutions, is a psychologist, lawyer and mediator who offers training and conflict resolution for family and workplace disputes. She is a member of the Toronto Mandatory Mediation Roster, a Charter Mediator and a Certified Comprehensive Family Mediator. She received the “Award of Excellence” from the OBA – ADR Section. This article is adapted from one that appeared in the December 15, 2000 issue of The Lawyers Weekly and the Law Society’s program on Collaborative Law, Dec. 2000.

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28

Mar'16

MEDIATION & COLLABORATIVE LAW: A PROMISING PARTNERSHIP

FAMILY MEDIATION NEWS: MEDIATION & COLLABORATIVE LAW: A PROMISING PARTNERSHIP Dr. Barbara Landau I came to mediation with a passion that has not been extinguished. In the early 1970’s, as Senior Psychologist at the Family Court, I couldn’t understand why the courts used an adversarial approach, since cooperation between the parties was the desired end goal, especially in divorce cases. I went to law school to find out. In the early 1980’s, after graduating, I opened a law and mediation practice. The first step in my mediation cases was to hold a separate meeting with counsel to create a supportive team to assist the parties through the process in a non-adversarial mode. The first step in my law cases was to invite a 4 way meeting. Court was a last resort. My biggest frustration was seeing mediated agreements undermined by adversarial lawyers who were often rude, intimidating, and unable to focus on the needs of the clients and children. Eventually I decided to restrict my practice to mediation and, whenever possible, refer clients to “mediation friendly” lawyers, who I would involve in the mediation process. Even though the practice of family law had improved and there were many happy partnerships between lawyers and mediators, there was a fundamental divide in objectives, tactics and skills. We did not share common goals. I was trying to facilitate a unique result designed by the parties, to benefit the family as a whole, and the lawyers were trying to achieve the best possible result for their individual clients. Where I saw the law as a resource and helpful wisdom that did not have to be followed, the lawyers saw the law as the measuring rod of a “good” settlement. It often led to clients feeling pulled between wanting to reach a good faith result and not wanting to disappoint their legal protectors. Enter Stu Webb and a major creative paradigm shift! The idea of all the participants signing a Collaborative Participation Agreement at the outset, changing the goal to a win-win outcome and providing lawyers with the training to achieve the collective goal was an awesome change. Suddenly I would have partners for my mediation practice who would be working toward the same objective, with similar skill sets! Since learning about the CFL model I have seriously rethought my mediation practice and recognized that there is a wonderful win-win result that can emerge from the synergy of mediation and CFL. Most of my mediation clients are so anxious to avoid an adversarial process that when they come to see me, they have not yet retained lawyers, or have had only an introductory consultation that has scared them into seeking an alternative. In the past I would have strongly encouraged them to obtain ILA and had to overcome their fears about lawyers undoing the goodwill and creative outcomes of the mediation process. Now, I can assure these clients of a referral to lawyers who will support their objectives and work in sync with the mediation process. Here is how it works. In the majority of cases, I am retained to mediate all issues, that is “comprehensive mediation”. I now recommend that all appropriate clients (the majority) consider using CFL trained counsel and retain them as early in the process as possible. I begin the mediation of parenting issues and encourage the clients to start the task of assembling financial disclosure in preparation for latter meetings. I arrange a 5 way meeting with CFL retained counsel as soon as clients select them. (Clients sign a Collaborative Retainer with their own lawyers). I speak to the lawyers in advance (in person if we have not met before, or on the phone) and create an agenda for the 5 way meeting. During the 5 way meeting, a Collaborative Mediation Participation Agreement is reviewed and signed that includes all the principles and ethical requirements of a CFL Participation Agreement. We establish guidelines for respectful communication, clarify roles, review the progress toward a Parenting Plan if it is near completion and include the lawyers in a discussion of any sensitive legal issues (eg mobility). We then create a list of financial issues that require additional information, together discuss what needs to be valued and how that will happen and arrive at a “to do” list for everyone. When additional experts are involved (eg pension valuators), they act on behalf of both parents. The discussion is focused on each client’s objectives, the impact on their children, how an option meets or fails to meet an important goal – rarely or never do I hear “the Divorce Act requires…” or “my client’s position is…”, or “that’s our bottom line, take it or we’ll see you in court”! CFL lawyers work hard not to speak for their clients, but rather to invite their input. The joy is that the discussion is a roundtable of constructive dialogue among clients and professionals looking for a result that will truly benefit the children and meet both clients’ interests. . Using a common tool kit of asking open ended questions, restating, and coaching in the use of “I” messages, the professionals’ task is to uncover the clients’ underlying concerns and help them to articulate the processes or outcomes that will work for them. It is truly unlike any of the 5 way meetings I held previously where my best strategy was to meet with counsel without their clients present. That is because in front of clients, the lawyers would “posture”, take aggressive positions, argue the law, threaten to go to court, and often “pull” their client from the meeting, having rarely heard the client’s voice. The lawyers follow up with their clients after the meeting as to what worked well and what could be improved and then we hold a 3 way debrief – which is extremely helpful and often uncovers unintended impacts on clients that previously would have been missed. We then plan how we can jointly improve the comfort level of clients. The clients then return to mediation to address as many of the remaining parenting and financial issues as possible, with a subsequent 5 way meeting scheduled. In this meeting we resolve together any outstanding financial issues, particularly those requiring legal advice. Again this advice is offered as a resource, one of many possibilities, and then clients are canvassed for their psychological, procedural and substantive interests, creative option generation follows and a result achieved with the professionals acting as co-facilitators and resources, not bullies or decision-makers. The agreements are signed either in the 5 way meeting or in the lawyers’ offices. The Collaborative Mediation process is more cost effective than litigation or the original CFL, maximizes the expertise of all professionals, and blends the best of CFL and mediation. The reaction has been very happy lawyers and clients who come back to “testify” at my CFL & Family Mediation courses! From my perspective this is mediator nirvana and a major benefit for clients who want to remain on good terms post divorce. ——————————————————————————————————————- Note: This article was first published in the Summer, 2003 edition of ACR’s Family Mediation News and the August, 2004 CCH newsletter, Legalworks. Dr. Barbara Landau, President, Cooperative Solutions, is a psychologist, lawyer, and Certified Comprehensive Family Mediator. She is a former Board member of the Academy of Family Mediators (now ACR) and chaired the Domestic Violence and International Committees. In 2002, she received the “Award for Excellence in Alternative Dispute Resolution” from the Ontario Bar Association’s ADR Section. In 2003, Barbara received the “Distinguished Mediator Award” from ACR and in 2004, she received the “FAMMA award for long term achievement from FMC. Barbara offers courses in Family Mediation and Collaborative Practice. For more information her website is www.coop- solutions.ca.

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