By the end of the second collaborative meeting in two separate files this week, the clients had been given an overview of the legal model with respect to property together, (at the same time) by both of their counsel, all of the financial disclosure had been exchanged and reviewed, a draft net family property statement was about 95% completed with only a few ‘to do’s’ such as speaking with an accountant or actuary about a reasonable range of notional disposition costs for the RRSP’s and investments. The clients had also heard, again together, an overview of the legal model with respect to child support, the sharing of children’s expenses and spousal support. We had reviewed several years of income tax returns and had a handle on the income for the payor, one of which included a base salary, commissions, stock options and RSU’s. We had a handle on the income for the recipient, one of whom was self employed and we were able to calmly discuss and agree on what expenses would be added back to her income for support purposes and the other recipient was a beneficiary of a trust and had received a significant inheritance and we were able to map out a reasonable imputation schedule for her income. We ran and reviewed several support calculations showing the impact of moving around the range of reasonable assumptions we were exploring. The clients left meeting #2 with all of the information (legal and financial) to begin considering financial options that might be acceptable.
In the meantime, we had also explored the things that mattered most to these two couples, everything from keeping the house, to setting aside some monies to help children with a down payment on a house one day, to honouring a financial responsibility to a sibling with mental health issues, to a desire to retire and shift gears to consulting work, to a goal of quitting smoking and the desire to have a portion of their budget for ‘wellness’ to help them quit, to co-parenting goals including safety planning in the event of an addiction relapse, and to cultivating a co-parenting relationship that would allow for shared family meals for special occasions.
Two meetings, held within 4 weeks of each other, each less than three hours, with agendas distributed ahead of time and progress notes distributed within a day or two after. Clients are informed, supported and ready to begin problem solving and developing options in earnest.
Just a little window into what actually happens in collaborative practice.
Collaborative Practice keeps it personal by providing a supportive environment for ‘face to face’ discussions between you and your spouse rather than ‘back and forth’ negotiations and letters between the lawyers. This keeps conflict and misunderstandings to a minimum. Settlements reached in Collaborative Practice are often more creative and tailor-made than those achieved in other dispute resolution processes. The settlements reached help you and your spouse have your most important needs and goals met. Collaborative Practice provides the support and guidance needed to help you resolve the issues arising from your separation and allow you to move on with your life.
Collaborative Practice is a process designed to manage and reduce conflict between parents so that the children are not caught in the middle. Jointly retained Family Professionals are often involved to ensure Parenting Plans are child focused and suited to the needs and personalities of your children. The Family Professionals coach couples on how to talk to their children about the divorce. The Family Professionals or Child Specialists can also meet with children to make sure they are doing 'ok' and can help them have a voice.
In Collaborative Practice you and your spouse will share all relevant financial information. The decisions you make will be based on full information. Jointly retained neutral financial planners often form part of the Collaborative Team. They can gather and present the financial information and they can provide projections to test the long term consequences of various settlement options. Jointly retained accountants and valuators can also from part of the team, when there are business assets, complex income determinations or tax planning opportunities or challenges.
Collaborative Practice Lawyers commit to being part of the solution not part of the problem. In Collaborative Practice, each spouse retains a Collaborative Lawyer who is focused on settlement every step of the way. The Collaborative Lawyer commits to working exclusively toward settlement and to not participate in any court process for this family. We have done away with back and forth letters between lawyers in Collaborative Practice. Instead, we pick up the phone and call each other to talk through issues.
While grieving is a unique and individual process there are many shared elements. There are many helpful descriptions of the grief process however Kubler-Ross’s Grief Cycle is particularly relevant to the process for grieving the end of a marriage.
The stages of grief as set out by Kubler-Ross are as follows:
The process is not always linear and you are just as likely to move back and forth between the stages as to move through them sequentially. Some people do not actually move through all five stages and instead get stuck in one of the stages.
One of the goals of Collaborative Process is to ensure that both you and your spouse can make informed, wise and durable decisions. Often this means, that we need to slow down the process to allow someone to move through a period of intense anger or depression. Be sure to let your lawyer know how you are doing and how you are feeling so that he or she can modify the timing of the process if necessary.
Understanding what the stages of grief look like will help you determine where you are and where your partner is.
When in settlement negotiations after a separation, it is important to empathize with your spouse and know or imagine how he or she is feeling. It is equally, if not more important, to know or understand what he or she is thinking. This is called perspective taking. It is often easier to put yourself in the head of your spouse than it is to put yourself in the heart of your spouse. If you are considering proposing a settlement option, try imagining what your spouse might think about it, as well as how he or she might feel about it.
Collaborative Practice and Mediation are interest based processes. Interest based negotiation is a problem solving approach to conflict that focuses on needs, desires, concerns and fears rather than positions.
A position is what we want (or think we want). An interest is the why beneath the position. For example, a position might be ‘I want a tuna sandwich.’ The why beneath that is that ‘I am hungry and want a healthy food choice.’
Positional bargaining or negotiating tends to lead to win-lose or zero-sum outcomes, where one person wins and gets what they want and the other person loses and doesn’t get what they want. Positional bargaining can also lead to compromises where one person gets half of what he wants and the other person gets half of what she wants.
Interest based negotiating often leads to win-win outcomes where each person gets their needs and desires met or their concerns and fears addressed. For example, if one person wants the window open and the other person doesn’t, a positional negotiation might lead to the window being open or closed or perhaps open halfway. An interest based negotiation might go as follows:
Why do you want the window open? Because it is stuffy in here and I want some fresh air.
Why do you want the window closed? Because I am fighting a cold and don’t want the draft.
A win-win solution might be to open a window in an adjacent room to allow some fresh air without creating a draft.
Another example is if two people both want an orange. A positional negotiation might lead to one getting the orange and the other not getting it or it might lead to the orange being cut in half. An interest based negotiation might look as follows:
Why do you want the orange? I am hungry and thirsty and the orange will satisfy both.
Why do you want the orange? I am baking muffins and I need the orange rind.
A win-win solution would be that one person gets the orange rind and the other person gets to eat the orange.
If we don’t spend the timing asking for the ‘why’s’ beneath the positions, we miss opportunities to create win-win outcomes.
A family law based example is:
Wife: “I want to keep the house.”
Wife: “Because it is near to the kids’ school.”
So it is important to you that the children are able to continue to go to the same school?
So the interest is that the children go to the same school and one possible solution or outcome is that she keeps the house. There are other possible options that would allow the children to go to the school and depending on some of the husband’s interests, these options would also be explored in a collaborative negotiation or mediation.
In Collaborative Practice, we put a team of legal, financial and family professionals together to make sure the right people are at the table for important conversations about the legal, financial, parenting and emotional issues that arise following a separation and divorce. Sometimes that might mean a couple is meeting with just the family professional to talk about parenting issues. Sometimes it may mean that they are meeting together with the lawyers and the financial professional to sort out legal / financial issues. Sometimes the family or financial professional is updating the lawyers on work that has been done. When we put a team together, we are adding people not dollars as the work that needs to be done is re-distributed in the most cost-effective, value-added way. To learn more, watch this little video.
I am often asked what the difference between Mediation and Collaborative Practice is, but once in a while I get asked what’s the same. Mediation and Collaborative Practice are both ‘interest-based’ processes. This means that, while the law is still relevant and ‘in the room,’ the goals, concerns and things that really matter to you and your spouse form the basis for the conversation and negotiation rather than just focusing on legal rights and entitlements. To learn more, here is a little video.