A few months ago, I had the pleasure of being interviewed by Catherine Potter for a podcast on Collaborative Practice. Catherine asked questions to better understand the Collaborative Process and she was particularly interested in the holistic approach to resolving family law matters using a team of professionals that include lawyers, mental heath professionals and financial specialists.
In mediation, both spouses meet in the same room with the mediator. As a mediator, my role is to assist clients in having conversations that they may not be able to have on their own and guide them through a process where option are created and evaluated so they can reach agreements.
In my mediation practice I use a six stage model. Stage 1 is an introduction to the process and an outline for the next hours of mediation. This includes length of meeting, taking breaks, and note taking. Then we review the Agreement to Mediate and discuss any concerns and then everyone signs the agreement. The agreement addresses issues such as confidentiality and without prejudice negotiations so that both client feel confident that they can freely discuss all options available to them without the threat of the information later being used in court. The Agreement to Mediate also clarifies my role as a mediator and not as a lawyer in this process and while I can provide information to the clients I am not acting as a lawyer for either of them.
Stage 2 involves a brief gathering of information such as date of marriage or cohabitation, date of separation, date and place of marriage, and names and birth dates of children. Most of the information gathered in this stage will be used in the drafting of the final agreement and the completion of divorce documents.
Goal setting occurs in Stage 3. Examples of goals are “I want us to continue to work together parenting our children so we can raise them in a healthy way” or “I would like us to fairly divide our assets so that we both have a comfortable life” and “I would like to financially support the children so they can continue participating in their current activities and sports.” The goals stage sets the tone and the foundation for the process. If discussions get challenging, then I remind clients of what their goals were for themselves and their children.
We create the agenda for the mediation process in Stage 4. The clients will share what they need to resolve. This will include division of assets and debts, child support, parenting, spousal support, estate planning and life insurance. It may also include urgent issues such as bills that need to be paid soon or how the parties are going to separate or how a house will be sold. The clients identify what issues the want to discuss first. I always suggest they deal with urgent issues that must be resolved that day and then move on to other issues. It is a good idea not to start with the most challenging issue so the clients can build confidence regarding their abilities to reach agreements.
In Stage 5 we move into the “meat and potatoes” of the mediation process. We work through each agenda item and discuss options for resolution. During those discussions the client’s interests will emerge. Some common interests are fairness, security, safety, structure, consistency. For each issue, several options will be generated and evaluated. For example. If the issue is “what do we do with the house?” Some options would be:
a) Spouse 1 keeps the house
b) Spouse 2 keeps the house
c) the house is sold
d) the children stay in the house and the spouses move in and out of the house (nesting)
I will assist the clients in evaluating each of the options until such time as the clients have reached an agreement. In this example, more information may be needed before the clients can reach an agreement, such as the current market value of the home or if the spouse wanting to keep the home can obtain the necessary financing on the home.
All of the issues identified in Stage 4 are worked through until an agreement is reached on all issues. In Stage 6 I review the agreements reached to ensure that as much as possible the agreements are in alignment with the goals that the clients identified at the beginning of the mediation. When all of the issues have been resolved, the mediation is complete.
The client’s Property, Support and Parenting Agreement will be drafted. The client’s take the agreement to their respective lawyers to review and provide them with independent legal advice.
For more information, I may be reached at 780-983-3494 or firstname.lastname@example.org
I attended a networking lunch last week and was asked if a Divorce Lawyer is the same as a Family Law Lawyer. It had not occurred to me that there might be confusion around those terms. My answer to that question was “generally, yes”. Most lawyers that specialize in divorce would refer to themselves as a family law lawyer. I personally don’t like referring to myself as a “divorce” lawyer as that places the focus of the word “divorce” and the often negative connotations associated with that. I use the term “family law” because I feel that is a better descriptive of what I do. I help families that are going through separation and divorce. The divorce itself is not the focus but rather making sure that the family moves through the transition in a way that maintains as much as possible the stability and predictability that children need. In the collaborative and mediation processes the actual divorce is the last step. If you or someone you know is contemplating separation or divorce, send me an email and together we can find out what process is the right fit for you and your family
The most common question I get asked when first consulting with a client is “What do I need to do and how do I do this?” For most, getting a divorce is like attempting to navigate our way through a foreign country where you do not understand the language or the customs, without a guide book or a map. There are four general topics that require resolution when going through a separation and divorce: property, parenting, spousal support and child support. And, there are four main ways to navigate your way through the divorce process.
The first way is what is often referred to as the “kitchen table divorce”. One or both parties meet with a lawyer and then they negotiate the terms of their settlement on their own. The lawyer will then draft the legal agreement and the divorce documents. The legal agreement and divorce documents get reviewed and signed with each client and their respective lawyer. Yes, it can be that simple!
The second way is for both parties to work with a mediator. I recommend to clients that they meet with a lawyer before attending mediation so that they are entering the mediation process with a framework of their legal rights and responsibilities. If the mediator is also a lawyer, many clients will proceed directly to the mediation process. The mediator works with both parties through a negotiation process until resolution is reached on all issues. The lawyer will then draft the legal agreement and divorce documents. Lawyers may be consulted before or during the mediation process at any time. Both clients must obtain independent legal advice at the end of the mediation process in order for the agreement to be legally binding.
The third way is the Collaborative Divorce Process. In this process, each client retains a Registered Collaborative Family Law lawyer. The process begins with a four way meeting with both clients and their lawyers signing a Participation Agreement that prevents the parties from resorting to the courts. All negotiations occur in face to face four way meetings until resolution is reached on all issues. The clients may choose to obtain additional support from a divorce coach during the process. If financial expertise is required, then a financial neutral is retained. If parents need assistance in developing a parenting plan, they may be referred to a child specialist that meets with the children and brings their voice into the process. At the end of the process the legal agreement and divorce documents are prepared.
The fourth way is the traditional litigation process. This is an adversarial process where each client retains a litigation lawyer to attempt to reach resolution through negotiation. If negotiations are unsuccessful, then court applications are made so that a judge makes a decision for the parties. In some instances the matter proceeds to trial.
The decision on which way to proceed is one that must be made by both parties. It is important to consider the emotional and financial aspects of the each process. Most clients that choose mediation or collaborative divorce do so because they want to make their own decisions and want to minimize the impacts of the divorce upon themselves, their finances and their children.
“What we are doing does not work. Children are being damaged.” I quote those words from a paper written by Justice Andrea Moen. She is passionate about reforming the current family justice system to protect children from harmful effects of the traditional adversarial process used by many families during their divorce. I share her passion.
The brain is not formed purely as a consequence of genetic coding. While DNA contains the genetic program, the way the genes are expressed is a function of the environment. There is no longer a debate about nature versus nurture; brain development is a result of both. For healthy brain development, children require love, structure and stability to provide a nourishing environment to feel safe and secure.
When children do not feel safe their amygdala (the primitive part of the brain) takes over from the frontal cortex (the area of the brain responsible for rational thought). Neurons in the brain change in response to the external environment. The amygdala tells us there is a threat and sends messages to the body in the form of increased adrenalin and cortisol. The body responds by fighting, freezing or fleeing. This adaptation allows us to survive and it is also the reason that trauma can damage the structure and process of the brain.
The amygdala is particularly sensitive to stress in infancy and early childhood. Childhood adversity produces long lasting structural and functional changes in the amygdala. With prolonged exposure to stress, the brain is exposed to elevated levels of cortisol, which over time will change the way the brain functions. While such brain changes may be adaptive in the short term, over time there is an impact on the person’s ability to regulate stress and fear responses and they are more likely to develop anxiety and disorders like post-traumatic stress disorder and depression. Children may have difficulty concentrating and learning, problems with short term memory and difficulty controlling their emotions. Chronically elevated levels of stress hormones can also increase the risk of obesity, heart disease, liver and lung disease, stroke, diabetes and addictions.
Exposure to parental conflict creates a toxic environment for children. No parent would knowingly dose their kids with a bit of poison each day. And yet, parents who fight continuously in front of their children do just that. The most powerful action divorcing parents can take to protect their children is to not expose them to adult arguments.
It is not the divorce itself that harms children, but rather the exposure to prolonged and unresolved conflict. Exposure to toxic environmental stress not only impacts the brains of children, research shows that DNA is also modified and these children will pass these adverse changes in their DNA to their children.
The traditional adversarial process used in the courts requires divorcing parents to fight against each other and exacerbates the conflict between them. The very nature of the adversarial process creates a toxic environment for the children of these warring parents.
When parents make the decision to divorce, it is imperative that the children are protected from the effects that conflict has on children’s developing brains. The parents have the challenging task of continuing to provide the components of a safe and loving environment and a loving parental and child relationship while they are simultaneously ending their relationship as husband and wife. In the midst of deciding how to divide their property and manage the finances, the children’s well-being must be the absolute priority. Ironically the parents must strengthen their co-parenting relationship while at the same time effacing the marriage. As a friend of mine said: “I have never worked so hard on a relationship that I was not in.”
Mediation and collaborative divorce are child centered processes that help parents resolve issues without resorting to the courts.
While recently travelling in Asia, I witnessed the lingering effects of a conflict that ended 38 years ago.
It is estimated that over two million Vietnamese, Cambodians and Laotians were killed and countless wounded in the Vietnam War. The financial cost to the U.S. government was billions of dollars. Today undetonated land minds and cluster bombs still kill or maim, and render precious agricultural lands unusable. The statistics on the cost of war are readily available – but what about other kinds of conflict?
An average litigated divorce costs $50,000 in legal fees. Family members disputing a deceased’s Last Will can deplete the entire estate. Those are the quantifiable costs of conflict, but what about the effects that we cannot measure? When one parent files a statement of claim for divorce in court against the other parent, it is analogous to declaring an act of war and the children will be the casualties. Family members fighting over an estate cause irreparable damage to their relationships. Ongoing conflict reaches far beyond the financial by negatively impacting our physical, emotional, psychological and spiritual health.
Each of us possesses our own beliefs, values, needs, thoughts, opinions, judgements and assumptions which act as a filter to create our own personal version of reality. In law school I observed a criminal trial in which more than 20 witnesses were called to give evidence. Each witness had a different account of the event. How could 20 different people watching the same event have 20 different stories of what happened? Because each of those witnesses had their own unique filter, through which the data and facts were being processed. No wonder we have conflict; our individual perceptions are rarely in alignment with another’s.
Add to this, that anytime we get triggered by something said or done to us, our body pumps out adrenaline and cortisol. This causes our brain function to retreat from the frontal cortex to the amygdala where we react in one of three ways – fight, flight or freeze. With our thinking processes diverted to the primitive part of our brain, no rational problem solving can occur. We may have the intention of resolving conflict in a peaceful manner, however as soon as any of the parties to the conflict are triggered, productive resolution becomes improbable.
Most of us lack the necessary communication skills to ask the kinds of questions to deepen understanding. Much of the time we are protecting and defending ourselves. How often are we truly curious about what is going on with the other person? We have to be centered in ourselves and detached from the emotional charge of the conflict. If we are caught up in our own emotional reactions and defending ourselves we are not open to any other perceptions other than our own.
Mediators work with those in conflict by using skills and self-awareness to stay outside of the conflict while knowing when and how to ask the questions that will shift perceptions and transform the conflict. When this happens, the tension in the room lessens or dissipates all together. Clients signing their mediated agreements often experience an emotional release. These are not easily quantifiable results, but nonetheless just as real as the financial impacts.
Conflict affects our families, workplaces, communities and nations. Each of us will relate to the conflict differently, usually in a way that we learned in our family of origin. As long as the conflict remains unresolved, the negative emotions will affect our health, just like the undetonated bombs in the fields of Asia. What is unresolved conflict costing you? Do you want to try a different way?
One of my professors in my first year of law school queried the class as to how many students had chosen law as a profession as seekers of justice. He then went on to say that the idea of justice was an illusion, as it was only within the reach of those who could afford to pay.
I appreciate a good reality check and his words were a gift. While the ideal legal system would result in justice being served, in reality it seldom is. My intention when starting my path in law was one of seeking truth, which at that time conformed with my personal ideals of justice. Now, further down that path I work with clients to unearth the truth below their conflict as a way of reaching resolutions that are just and fair.
My clients recognize that they want an outcome that is fair and equitable and they realize they cannot have the kind of conversation with each other that they would like to have without the assistance of a third person. The conflict between them has evolved to a place where they cannot converse without triggering each other’s wounds. Once that happens and emotions take over, rational conversation becomes unlikely. They stop listening to each other and their words are being filtered through each other’s subjective reality. My work is to interrupt that downward spiral and create space for something different to happen.
With mindfulness, presence and creative questions, my role is to assist in transforming the conflict. It is a way of seeking the truth beneath the issue that is causing the conflict. The conflict itself is an “acting out” of old wounds, programming and habitual responses. The conflict is the symptom, it is not the source.
The alchemist transforms common metal into gold. Finding the truth beneath the conflict is analogous to finding gold. Honesty combined with vulnerability creates a powerful alchemical response. In the moment when the truth is revealed, the conflict can no longer sustain itself. The feeling and energy of truth resonating in the room is like gold and nothing else can exist in that moment.
To reach resolution, by moving through the conflict itself, requires inquiry into the nature of the conflict. Creating sustainable agreements necessitates mutual understanding. When agreements are forged without understanding, they lack substance and the same patterns of conflict will reemerge until the root of the conflict is exposed. If couples rush through the process with the goal of just getting something down on paper, it usually routes back on itself and the same issues will continue to resurface.
For example, a couple in the process of divorce had reached an agreement on all their issues. Once that agreement was put to writing the husband was not willing to commit to the agreements. The wife was frustrated. Tempers began to flare and the entire process was in jeopardy. They decided to return to mediation. On the surface he was upset with the agreements for sharing of child related expense. By asking him questions from a place of curiosity with the intention of understanding, we discovered his core fear was of being perceived as a dead beat dad. After analyzing his budget he was concerned about meeting his financial commitments. Once the truth was brought out into the room, his wife could see and feel where his concerns originated, and in that place understanding takes root; the couple is able to take a step back from the entanglement of the conflict and deal with the issue from a different place.
The foundation of a sustainable agreement is built on fairness and equality which is discovered through an alchemical process that finds gold in truth and understanding.
Currently, in my personal life I am collaborating with my daughter’s school, her teachers and many friends in the Give A Shirt project. We have successfully collected, sorted and packed 11,000 pounds of clothing and blankets in a SeaCan destined for 2,000 children in Laos. An amazing story of individuals with a focus on achieving a common goal! These same principles are applied in mediation and collaborative divorce – begin with a goal, then bring together the people with the right expertise and commitment to reach the goal! For more information go to our website at www.giveashirtca! You can also watch our story on Global TV.
I must admit I am still a bit surprised when I meet with clients and discover how much of their thought processes are based on erroneous information that has been given to them by well-intentioned friends or family members or the internet. If you are contemplating getting a divorce or have already made that decision, it is imperative that you obtain accurate information on your legal rights and responsibilities. While the divorce process itself is governed by federal legislation, there are aspects of your divorce, such as how to deal with your property that are governed by provincial legislation and differ between provinces. You may be doing a lot of research on the internet and learning about divorce from another country or other provinces that may not be applicable in your situation. One client thought that he would not have to pay spousal support because his wife had an affair. Another client thought if she moved out of the matrimonial home that she would no longer have any legal right to the home. There are so many more examples of this.
One source of accurate information is a lawyer that specializes in divorce and family law. However, since much of the law is actually case made law (coming from decisions that judges make) you could go to 10 different lawyers and get ten different answers. One of the reasons my clients choose mediation and collaborative divorce is to avoid the uncertainty of a litigated divorce. With both mediation and collaborative divorce, the clients themselves make their own decisions rather than having a judge impose a decision upon them. The clients take responsibility for restructuring their lives and their family and make decisions that will work best for their unique family situation. To do this requires accurate information, so I advise to get that as soon as possible, before you spend a lot of time and money and effort planning around something that simply is not true. I always advise my mediation clients to obtain independent legal advice prior to beginning the mediation process. Like any well planned journey, it is always a good idea to do some research and gather factual information. It is also a good idea to talk to those that may have traveled down the path you are heading, a family law lawyer is one of those travelers from which to seek guidance.
Divorce is a time of transition. It’s a time of undoing and a time of creation.
Whatever the reason, the couple in divorce has decided to end their marriage contract. The divorce process is the bridge from a place of being husband and wife to a new place that has not yet been defined. The blank wall in my mediation room is the canvas on which the old life is unraveled and a new life begins to take shape.
Before we immerse ourselves in the task of unraveling the marriage, it is imperative to look forward and imagine the future that is being created. I find it helpful to focus on the destination. Not just the destination of divorce, but beyond that.
All of my clients will say that that they imagine a future in which their children have loving relationships with both parents. In creating this vision for the future, I ask the question: “If your children were to come into this room 10 years from now and I were to interview them and ask them what they remembered most about the time their parents divorced, what is it that you would hope they would say?”
The children now occupy the central place on the empty canvas, (that represents the future of this family) and become the anchor for all subsequent discussion in the room.
If what they hope for their children’s future is true, then how do they get there? How do they now deal with the present reality of dividing assets and determining financial support for children? What kind of parenting plan will they create that will achieve this shared vision? How will they conduct themselves both inside the meeting room and most importantly in the presence of their children?
With the children as the focal point, the parents then create the rest of the picture that they will all inhabit. Research shows that it is not the divorce itself that harms children, but rather how the parents conduct themselves during the divorce. The parents hold the power to create their children’s reality.
The only concept of family that the children may have had is one where both parents live together in one home. With the decision to end their marriage, the concept of family that once existed also ends. The parents now hold the brushes and the paints in their hands and together they create and define a new image of family. Will this new picture meet the children’s needs to be loved, to belong and feel valued?
It seems ironic that at the time the couple is deciding to separate and divorce that they must now cooperate with each other so they can both reach their destination. With this mindset, they co-create the new image of their children’s future and their own future
My role as the mediation is to remind the clients what is at stake if they cannot resolve their conflict. I assist them in looking at the conflict from a different perspective, taking them to the balcony so they can see things from a new vantage point. I help them focus on their vision for their future, only delving into the past as necessary to resolve an issue in the present.
Clients choosing mediation or collaborative divorce do so because they desire to end their marriage and shape their future in a manner that is respectful to each other and their children. They seek to preserve the parenting relationship and their assets rather than walk a path of destruction.
It is useful to consider all of the various paths available before choosing the one that will work best for you. The three most common paths taken are mediation, collaborative divorce or litigation.
The traditional approach to divorce is the litigation path where each spouse retains their own lawyer and their issues are resolved either by way of the lawyers negotiating a settlement or though court applications or a trial. All documents filed in court become a matter of public record. If the issues are resolved in court, the clients have no control over the decision-making and the judge imposes a decision on them.
In collaborative divorce, each spouse retains their own collaborative lawyer and then signs an agreement that states they will not use the courts to resolve their issues. If at any time either spouse wants to go to court, then the agreement terminates and each spouse must find new lawyers to represent them in court. All meetings occur face to face with both lawyers and both clients.
With both mediation and collaborative divorce, all meetings are private and confidential and occur in an informal setting. The focus is on cooperative resolution of issues with a view to the future. If additional expertise is required such as financial experts, child specialists or divorce coaches, they are jointly agreed upon and brought into the process. The clients determine the timing of their meetings and make their own decisions.
With mediation, the couple agrees on a neutral third party that will facilitate the dialogue that they are unable to have on their own. Once resolution of all issues is reached, the mediator prepares a report that the clients take to their lawyers to have drafted into a legally binding contract.
A friend of mine created the word “crisitunity” a blending of the words “crisis” and “opportunity”. Divorce can be a time of crisis and simultaneously a doorway into opportunity. When one world is destroyed, another is created. The reality that once existed has been shattered and in that space exists the opportunity to create something different.
What is the picture that you wish to create for yourself? And for your children? What does that look like? How will you get there? What will you teach your children about dealing with crisis? And opportunity?
I was recently out walking and enjoying the warm weather and the beautiful fall colors. Looking at the trees from a different vantage point was analogous to one of my roles as a mediator and Collaborative divorce lawyer.
When I meet with my clients for the first time, I use that time to listen to their personal story and their perspective on what is happening for them. Once I understand where they are at, we can discuss where the client would like to go (their goals) and how they plan on getting there. This step is a critical in the process. Often the client has clear ideas on how they would like to see their issues resolved. They may have already decided how the property should be divided or how the children should be shared.
When I ask the client what is happening that they are unable to have the conversation they want to have with their spouse, and what is it that is blocking their ability to reach a resolution, the answer will inevitably be that they have diverging opinions as to what the outcome should be. We discuss what they imagine their spouse’s perspective to be. My role is to ask questions in a way that allows the client to see things from a different perspective and to consider other possibilities.
Had I taken a photograph of this birch clump from the side, the image would look much different, as would it had I been looking down at the tree from above. The birch clump is the same, but depending on the direction the photograph is taken, the resulting image is very different.
The advantages of both Collaborative Divorce and Mediation is that both spouses are able to share their perspective in a way that facilitates understanding which is imperative for reaching a resolution that will work for both spouses and their children.
Last week I was doing some research for a presentation I was giving on different options for getting a divorce. I came across Dr. Emery’s website. I had exchanged email messages with him a few years back when I was researching the experiences of children living in post-divorce shared parenting arrangements.
When parents are getting a divorce, they often find themselves caught up in their own emotional reactions and focused on trying to undo their marriage while at the same time create a different life. While the parents are off in the office of their divorce lawyer or in divorce mediation, or with a divorce coach or a financial expert, sometimes the focus shifts away from the children and on to the adults. Dr. Emery’s Bill of Rights for Children of Divorce is a good reminder:
Every child whose parents divorce has:
The right to love and be loved by both of your parents without feeling guilt or disapproval.
The right to be protected from your parents’ anger with each other.
The right to be kept out of the middle of your parents’ conflict, including the right not to pick sides, carry messages, or hear complaints about the other parent.
The right not to have to choose one of your parents over the other.
The right not to have to be responsible for the burden of either of your parents’ emotional problems.
The right to know well in advance about important changes that will affect your life.
The right to reasonable financial support.
The right to have feelings, to express your feelings, and to have both parents listen to how you feel.
The right to have a life that is a close as possible to what it would have been if your parents stayed together.
The right to be a kid.
Collaborative Divorce? Divorce Lawyers Collaborating? What is Collaborative Divorce?
I was at a social event the other night when someone overheard me say Collaborative Divorce. I was met with inquisitive facial expressions. Divorce lawyers? Collaborating? What is this Collaborative Divorce stuff? It seems the idea of divorce lawyers working together was quite amusing to them.
The Collaborative Divorce process began in the United States by a lawyer by the name of Steve Webb that was burned out and tired of fighting the fight. He and many others had long recognized that court rooms were not the best place for families to resolve their disputes. The long, costly and agonizing process of divorce had taken its toll, not only on the families going through divorce, but on the lawyers representing them as well. So Steve developed an approach that has gained momentum across the United States, Europe, Australia and Canada.
The Association of Collaborative Lawyers of Alberta defines Collaborative Divorce as:
“A respectful process for resolving conflict with the help of specially trained lawyers and other professionals, without going to court. Each spouse is represented by his or her own lawyer from start to finish, with the additional support of mental health and financial professionals as required. The spouse and professionals work cooperatively to focus on the problems, gather the necessary information needed and brainstorm together in face-to-face meetings. The goal is to create as many options as possible to reach a solution that is win-win for both spouses.”
The benefits of Collaborative Divorce are:
Self-Determination: The clients themselves decide what their specific resolution will look like. Decisions are not imposed on them by a third party (i.e. the judge).
Private: The entire process occurs in the privacy of meeting rooms, not in the public realm of a court house.
Maintain Control: The clients and lawyers decide how often and how long to meet based on everyone’s schedule.
Present and Future focus: Collaborative Divorce also differs from the traditional litigated divorce in that it stays focused on the present with a view to the future. The focus is on solving the issues that are here now, not going into the past and into the blame and shame game of trying to figure out who did what and when.
Team Approach: if needed, other professionals such as child specialists, financial specialists and divorce coaches may be mutually agreed upon and brought into the process.
There are many paths that all lead to the destination of divorce, make sure you are on the one that is best for you and your children. Research has shown that it’s not the divorce itself that inflicts emotional damage on children, but rather how the parents handle the conflict between them and how much the children are exposed. While you have decided to end your marriage and start a new life, what better time to demonstrate to your children your love for them than by navigating your way through your divorce in a manner that demonstrates respect for each other and commitment to your continued role as parents to your children.
Deanna Koebernick, B.Sc.Ag., LLB. Q.Med., Collaborative Family Lawyer & Mediator
Here is a great video with a Collaborative Divorce Lawyer from Calgary: