In the text book In the Name of the Child, the authors examine how to assist children through the divorce process. The authors begin with the following:
" Just as a marriage can be deemed as more or less successful or as having failed, so can a divorce be seen as being more or less successful or has having failed to accomplish its purpose. In a successful divorce, the adults are able to work through their anger, disappointment, and loss in a timely manner and terminate their spousal relationship with each other (equally and emotionally), while at the same time retaining or rebuilding their parental alliance with and commitment to their children. A successful divorce can relieve the children of the daily stress of overt parental conflict and associated anger and depression."[i]
As couples, partners and parents, we commit ourselves in our relationships to provide comfort, security, stability, and of course love the emotional connector. So why is it that when the emotional relationship breaks down, that all the other values from that relationship must also be damaged or destroyed? Yes, some damage is inevitable as a result of a failure of the relationship. There may be a sense of loss, anger, frustration, disappointment and a whole range of emotions that only time will heal. As a family law lawyer our professional responsibility should be to assist our clients and their children through the process of separation and not to contribute to the damage that is already inevitable as a result of separation.
My wife and I love trekking and have been fortunate enough to hike many magnificent trails in Peru, Patagonia, Costa Rica, Australia and New Zealand. Before we begin our trek we make sure that we have charted our course, have packed the appropriate clothing, equipment and supplies. We make sure that we have all of the necessary safety equipment that we may need in the event of emergency. We, as family law lawyers, must do the same with our clients. We must choose the best course to follow through the separation process and make sure that we have all of the necessary tools and resources that we will need along our journey. We want to make sure that we are safe so that when we have completed our journey and arrived at our destination, although we may have a few blisters on our feet and arrive exhausted, we arrive at our destination safely.
So if life events have presented you with the challenge of having to trek the path of separation, let me share with you how we can smooth the path for you.
Choosing a Lawyer
In our treks in various parts of the world, my wife and I have had the fortune of experienced guides. They provide the support and encouragement that sometimes you need when the trek becomes arduous. They are able to deal with unexpected challenges and provide you with a sense of security and confidence.
So should you, always choose a family law specialist with the experience, tools and resources to provide the support, strength and encouragement you will need to reach your destination.
Education
We never begin our trek without first reading and studying the area where we are to trek, for its history, climate and topography so that we can be prepared for things that we will experience along our journey. Similarly, on the journey through separation, I have a library of reading material and texts that are offered to clients to assist them in understanding the process, planning for the journey and assisting them on how the journey may impact both themselves and their children emotionally and physically.
The family law lawyer needs to take the time to educate the client, not only on legal issues, but conflict management.
Resources
Once we are ready to begin our trek, my wife helps me lift the backpack onto my shoulders. I make sure that the shoulder straps and waist belt are properly adjusted before we begin our trek. We make sure that our water bottles are on the outside for easy access and are snacks that also ready accessible at the top of the pack.
Similarly, on our path through separation, the family law lawyer needs to make sure that the resources that the client will need most immediately are readily accessible and made available to the client at the earliest opportunity.
The family law lawyer has to have relationships and contacts with mental health professionals, accountants and financial planners that the lawyer can access to assist the clients at an early stage. These contacts can provide the necessary counselling, financial planning or budgeting that is required to assist the family in all of the areas that are affected by separation.
The use of these resources as a neutral partner in the separation process serves to facilitate communication and trust between the parties. The resources are there to assist the parties and the family law lawyer should suggest full use of these resources to assist the parties and the children in the process.
The Process
Before we begin our trek, our research has indicated that there is more than one route that we can follow to reach our destination. Some routes appear shorter than others, some more challenging than others. We know that if we start trekking along one path, at certain points in the trail there is an opportunity to change course depending upon how we are progressing to that point.
Before you begin along the path of separation, there are several options available to you. The family law lawyer should take the time after meeting with the client and obtaining some background to review the various options with the client and assess what route might be most appropriate for the client. These options include the following:
Collaborative Law
In this process, the parties commit to settlement of their separation through a process of negotiation without going to court. The parties sign a participation agreement in which they commit and undertake to reach resolution through a process of discussion and negotiation without the threat or use of a court proceeding. As an incentive to use the process rather than default to the court process, the parties, in the participation agreement, accept that if they are unable to reach an agreement( which almost never happens) the lawyers and other professionals retained in the process are disqualified from acting for the client in the litigation. This process perhaps is the best to recognize the complexity of emotional and financial issues arising from separation. The lawyers will often use an interdisciplinary approach involving social workers, financial planners or accountants to be neutral and assist the parties working through issues involving parenting and financial issues.
Mediation
Mediation is a way of resolving disputes without going to court. A mediator is an impartial professional with expertise in helping parties negotiate fair, constructive and mutually agreeable resolutions to their disputes. In mediation, the parties, with the help of the mediator, define the issues in dispute and explore a variety of options with a view to achieving a consensus on resolution. Mediation allows the parties to develop their own individualized solutions to the issues rather than delegating the decision making to a third party.
Arbitration
The arbitration process is similar to a trial in court, but there are important differences that make it an attractive alternative. Arbitration is done in private and is conducted more informally than a trial. The trained family law arbitrator considers the facts and evidence of the parties and then makes a final and binding decision about the matter in dispute.
Mediation/Arbitration
In mediation/arbitration, the parties begin with mediation and agree that if any of the matters in dispute are not settled in mediation, then the mediator shall become an arbitrator. The arbitrator conducts the arbitration and makes a final binding decision on those issues which the parties were unable to reach resolution.
Court
Sometimes when you are trekking, you have no choice but to make the long arduous trek up the mountain. There is no alternate route or passage around or through the mountain. Similarly, some cases are not appropriate for alternate dispute resolution, such as cases of domestic violence or significant power imbalance.
The family law lawyer that you choose should be trained in screening for domestic violence and have the experience to know when the only way to the destination is over the mountain.
As Justice Harvey Brownstone stated in his book, Tug of War "When you start a court case, you are starting a war. When you choose alternative dispute resolution, you are making peace." 2
The family law lawyer should fully and completely explain to the client the reasons why court is necessary rather than simply fall into the court process by way of default.
The family court rules are designed to facilitate resolution of disputes but there can be no doubt that it still remains a long and expensive process, albeit sometimes necessary. In these situations the family lawyer must have the experience to do the appropriate costs/benefits analysis and work in partnership with the client to move to a quick and reasonable resolution. Just as importantly however, the lawyer must work co-operatively with the other lawyer to properly manage the case and minimize conflict.
The McKenzie Lake family law group comprises seven lawyers who specialize in family law. They have the training and experience to make sure that you have all of the proper tools, resources and support to guide and assist you through the path of separation. Our guides are able to offer qualified and experienced representation in all forms of alternate dispute resolution and litigation. We have trained collaborative lawyers, mediators, arbitrators and experienced litigators at the trial and appellate levels.
We invite you to visit our family law group at our website http://www.mckenzielake.com/page/whatWeDo/family-law.php.
Wishing you safe travels
"Malcolm Bennett"
This blog post is provided for educational purposes only. It is not intended to be advertising, and it is not intended to be and should not be relied upon as a source of legal advice. You should not rely upon the content without first seeking the advice of legal counsel. The author of this blog post and his employer, Mckenzie Lake Lawyers LLP, expressly disclaims all liability in respect to actions taken, or not taken, based upon the content of this blog post.
