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Family Law Dispute Resolution: Options for Clients

Capilano Golf & Country ClubMay 26, 2009

Nicole Garton-Jones & Karen Redmond

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What Process?

Two Main Types:

1. interest based negotiation, also known as less adversarial bargaining (includes mediation and collaborative law); and

2. positional bargaining, also known as adversarial negotiation (includes dialogue between counsel and litigation).

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Traditional Positional Bargaining

• involves, in essence, each party trying to maximize how much they can win out of the negotiations.

• A gain for one side invariably means a loss for the other.

• In this framework, each party will strategically adopt polarized positions asking for more than it expects to receive so that it will have something to “give” away when concessions are demanded.

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“New” Interest Based Bargaining

• emphasizes cooperation. • Rather than viewing each other as adversaries, the

parties are challenged to work together in a collaborative way to achieve a result that is mutually desirable.

• Negotiation is over “interests” (what each party needs and wants), rather than on “positions” (each party’s “bottom line”) which stresses the concept of entitlements and/or rights.

• In interest-based bargaining, it is the problem, rather than the opposing party, that is the adversary, shifting the negotiation focus to finding a solution that meets the needs of all wherever possible.

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What is an Interest?

• An interest is a specific condition or gain that a party must obtain to bring about an acceptable settlement. Interests include:– Substantive Interests: Needs which must be included

in the content of a settlement which are tangible such as time, money, resources, goods, documents etc.

– Procedural Interests: Needs for specific types of behaviours or the way that something is done.

– Psychological Interests: Needs that refer to emotions and relationships, how a party feels, how a party is treated during the negotiations and afterwards.

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Interest-based bargaining (mediation and collaborative law) not always the best solution: • The other side refuses to cooperate/participate;• A history of violence or abuse and the power imbalance

that ensues may affect the client’s ability to effectively negotiate issues in a mediation or the collaborative process;

• There is a present fear of domestic violence or a safety concern;

• The client believes that their spouse will be dishonest in a non-adversarial process; or

• There is very high conflict between the parties and/or they are very polarized in their respective positions.

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Limitation Periods

If there are limitation periods which necessitate a court action being started, in order to preserve a claim parties may agree that a claim be started in order to preserve a limitation deadline and then enter into a mediation or the collaborative process without taking further court action.

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Comparing Positional Bargaining with Interest Based Mediation

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Interest Based Negotiation Process

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Two Types of Interest Based Negotiation in Family Law

1. Mediation; and

2. Collaborative Law.

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Definition of Mediation

– Mediation is a process where a mutual third party helps people to negotiate a settlement of their dispute.

– The mediator has no decision-making power and if they are a lawyer, do not provide legal advice to either party.

– Participation in mediation is voluntary and all decisions taken at mediation are also a matter of choice by the parties.

– Self-determination, with the aid of a skilled, impartial third party, is the cornerstone of mediation.

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Who Are Family Law Mediators

• Law Society requirements for lawyers who practice as family law mediators

• Ministry of Attorney General - Family Justice Counsellors

• Private Mediators:– Family Mediation Canada– BC Mediator Roster Society

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Mediation Process

• typically the parties will meet individually with the mediator initially before meeting together with the mediator.

• At initial meetings, the mediator determines the concerns and interests of the parties that underlie their respective positions.

• mediator also screens for abuse and other concerns prior to the joint session

• the entire mediation process is confidential• parties will usually be required to enter into an Agreement to

Mediate which maintains the confidentiality of the mediation process prior to commencing the joint session.

• joint mediation sessions are usually two hours and spaced at least two weeks apart.

• number and duration of sessions is determined largely by the individual parties and the issues at hand.

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Mediation Results

• Sometimes mediation may not be successful in resolving all of the issues but may help the parties resolve some of the issues and narrow the issues that do remain.

• Typically, if the parties reach agreement on some or all of the issues, the mediator will draft a memorandum of understanding, the terms of which are them confirmed in a separation agreement, which may be drafted by either the mediator (if they are a lawyer) or one of the lawyers representing the parties.

• Each of the parties then retains separate counsel to provide them with the independent legal advice respecting the terms of the separation agreement.

• It is also not uncommon to have clients retain a lawyer to advise them throughout the mediation process and eventually to provide them with independent legal advice once the agreement is drafted.

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Definition of Collaborative Law

• lawyers are hired specifically to help parties resolve their dispute outside of the court process.

• The collaborative lawyers agree that if the collaborative process should fail, neither lawyer will go to court. If the parties decide to turn to the court system for resolution, then the lawyers are out of a job. They must withdraw from the case, and the clients must hire new lawyers to represent them in court.

• All parties, including the client and their lawyers, enter into a Participation Agreement. They agree to disclose documents and information that are relevant and agree to work in a respectful manner.

• Because everyone has contracted to resolve the issues outside the court system, the kind of tactics common in a litigation file, such as threats of court, do not exist in the collaborative process.

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Collaborative Law Process

• The hallmark of collaborative law is the use of four-way meetings, meetings between the two clients and both of their lawyers.

• Other professionals, such as divorce coaches, child specialists and financial planners may also assist the parties.

• The issues to be resolved are framed by the clients rather than by specific family law statutes. This allows the parties to work towards resolution by concentrating on the issues that lie at the heart of the matter.

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Full Disclosure Critical to Collaborative Process

• The collaborative law process requires complete disclosure by the parties. If a lawyer learns that his or her client has withheld or misrepresented information, and continues to withhold or misrepresent information, then the lawyer is obligated, by the terms of the Participation Agreement, to withdraw from the collaborative process and let the lawyer for the other party know that the collaborative process is at an end.

• It is not necessary to disclose why the process is at an end as the rules of solicitor/client privilege and the code of professional conduct apply.

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Two Types of Traditional Positional Bargaining in Family Law

1. Dialogue Between Counsel; and

2. Litigation

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Dialogue Between Counsel: Style• The approach of the lawyer towards traditional bargaining with the

other side will be influenced by the facts at hand, by the instructions of the client and by the lawyer’s own individual style.

• Ultimately the lawyer is guided by professional judgment, obligations to the Court, the profession and the client.

• Not every client/lawyer match works. Occasionally, a lawyer and client are at odds about approach, the client will not accept the lawyer’s advice or they have difficulty communicating effectively.

• If the lawyer withdraws, he or she must first ensure that the client’s interests are not prejudiced, and that any change in retainer occurs in a timely way so that the other party, opposing counsel and the Court are in no way inconvenienced.

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Dialogue Between Counsel: Process

• The client is first asked to sign a retainer agreement setting out the business terms of hiring the law firm

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Dialogue Between Counsel: Process Cont.Initial Letter to Other Side• At the outset, particularly when the other side is not yet

represented, it is typical to send out a letter advising the other party of the retainer. The letter often:– invites the other party to provide financial disclosure by completing a

Form 89 (a statement of assets, liabilities, income and expenses under oath);

– suggests that they may be interested in participating in either collaborative or mediation process;

– provides informational materials related to mediation or collaborative law to them, and

– invites them or their lawyers to contact them.• Frequently, this initial letter will result in a telephone call from

another lawyer indicating they have been retained or act on behalf of the other party.

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Dialogue Between Counsel: Process Cont.

Exchange of Information• The exchange of sworn financial information is

an important first step in any file. Many lawyers make it their practice to require a sworn financial statement in every case.

• Basic supporting documentation is also requested, allowing the lawyer to cross-reference the material on the sworn financial statement. – Eg. include Notices of Assessments, tax returns,

financial statements, valuation reports etc.

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Dialogue Between Counsel: Process Cont.

Settlement• If the client is comfortable with the information

available and disclosure from the other side, conversations with opposing counsel may result in a settlement agreement.

• Often, if the parties are properly prepared and able to communicate with one another, one or more four-way meetings may also assist in resolving the dispute.

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Dialogue Between Counsel: Process Cont.

Barriers to Settlement• If:

– the client is uncertain as to the assets, liabilities, and income of the other party;

– if there are issues relating to disposal of assets; – if there are allegations of non-disclosure; or – if the safety of either a spouse or a child is in

question,

then an informal process may not be the best choice.

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Litigation: External Decision Making

• Litigation is the default position, and for many clients, the path of last resort.

• In the absence of a collaborative or mediation process, lawyers typically resort to position based bargaining, advocating to the other lawyer or a judge the merits of their particular clients wants or needs.

• The clients do not participate in articulating their wants and needs directly; except through their evidence.

• In litigation, the decision making authority has been given (or taken away) from the clients to a judge.

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Litigation Does Not Preclude Other Processes

• Even where a client wishes to engage in an alternative dispute resolution process, if the other party does not enroll in that process, the client may be left with no choice but to start a legal action.

• This will have the effect of requiring the other spouse to take steps in the action, and/or to engage a lawyer, so that dialogue may take place.

• The fact that litigation has been commenced does not preclude the clients from moving back into either a mediation or collaborative process.

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Litigation is a Dynamic Process

• Very often after an initial rush to litigation, a JCC and/or a contested Chambers application, followed by delivery of legal bills, clients will wish to reassess the process and to engage in negotiations or an alternative dispute resolution process.

• useful to periodically engage the client in a cost‑benefit analysis of their case. The litigation process is dynamic, and as things change and the situation evolves, positions and views held at the outset may change.

• Counsel must stay on top of these changes and ensure that instructions are current and the client is making informed choices.

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Litigation: Benefits

• The litigation timetable can itself be a useful tool in moving the matter forward towards resolution. Particularly for individuals who are avoidant by nature, having established dates for discovery and a trial will be a powerful motivating factor.

• Good lawyers make the most of the advantages of the litigation process while working diligently towards an out of court settlement.

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Family Process Choices: Conclusion

• There are many opportunities to be creative in seeking constructive solutions to the parenting and economic issues raised by separation and divorce.

• By taking the time to understand the client's ultimate goals, engaging regularly in a cost-benefit analysis of the file, and using the different processes available - either individually or in combination - positive, lasting results are possible.

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Thank you!

Nicole Garton-Jones & Karen Redmond

The Village at Park Royal

203 – 815 Main Street

West Vancouver, BC V7T 2Z3