416.368.0700 anne@annefreed.com

Index to my Blogs

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice

© Anne E. Freed, January, 2020

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How to hire a divorce lawyer without breaking the bank!

Dear Readers,

Firstly, I want to wish you all a Happy and Healthy 2021.

Today’s topic is: How to retain a lawyer for one’s separation/divorce without incurring huge legal fees, or, to use the colloquial:

How to hire a divorce lawyer without breaking the bank!

In this time of COVID, the effects are not just to our health but also include the emotional and financial fallout. The effects of living under one roof for this long and – and so far, unending – period of time, test even the best relationships and marriages.

For marriages that were “on the rocks” before the pandemic and its closures, the pandemic has accelerated the parties’ problems to the point where many people – including Sally – have decided that they want to take steps immediately to separate and divorce.

However, there is a huge roadblock facing Sally. She wants to hire a lawyer – as she’s heard nightmare stories from people who have represented themselves – however she knows that will necessitate large funds.

So, Sally feels stuck. She wants to leave the marriage now but can’t afford to hire a lawyer to help her in this.

There is an alternative for Sally called “unbundled legal services.” What this means is that Sally can use a lawyer as and when needed during her case. The lawyer will help her in parts of her legal matter and from time to time rather than for the whole thing.

In between, Sally will do the work herself she feels is within her capability. For example, Sally will have a first meeting with a lawyer, and with her lawyer they will look into what parts of her case she wants the lawyer to do and what parts she will do herself.

The  “WIN/WIN”  for Sally in choosing this process, is that Sally will save a great deal of money on legal fees, and at the same time she will be able to proceed with her divorce with the help of the lawyer, without the financial worry of the fees she’d have to pay a lawyer who is working on her case full time. She will get the benefit of expert legal advice from her lawyer, but without the fear of huge legal fees. In this process, the lawyer and Sally will work out what the lawyer will need for each part of the process that Sally wants the lawyer to help her on. Therefore, fees for these discrete parts can be estimated in advance and will be much lower, than if Sally retains a lawyer on a full retainer basis.

This process can provide a solution for Sally and many others who have made the decision to separate but can’t afford the legal fees to do it right. “Right” means that Sally can have help from the lawyer when she wants and needs it – be it concerning custody, access, support, and/or equitable division of property and protection of her rights.

Using the services of a lawyer on an ad hoc as needed basis provides a much less expensive financial alternative to Sally, such that she can get her divorce started right away and begin the process of removing herself from a situation that has become intolerable, now rather than later.

This is a valuable option for people to consider in these difficult times.

As a family law lawyer and mediator, I offer this service as one of a basket of process options.

For further information, please feel free to contact me at (416) 368-0700 or at anne@annefreed.com.

For more information on unbundled legal services see my website at www.annefreed.com, and www.familylawlss.ca, which has further information and a list of lawyers who also  offer this process.

In the meantime, Please Keep Safe! Until next time!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 39 years’ of experience in the practice of family law.

© Anne E. Freed, January 2021

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THE COUPLE HAVING A FIRST MEETING TOGETHER WITH A LAWYER/MEDIATOR IF PARTIES ARE CONSIDERING DIVORCE

In this time of Covid, many people are considering divorce. One positive suggestion is for the couple to see a family lawyer /mediator together for the first meeting. I call this process: ‘Early Neutral Evaluation.’ When I see a couple on this basis, I explain to them their respective rights and obligations should they decide to separate and provide them with detailed information to assist them in making their decisions moving forward. This can avoid the nightmare that happened in the movie “Marriage Story” where each retained their own lawyer immediately – one of whom was the proverbial “shark lawyer” – and the whole thing escalated to a point far beyond what the spouses each wanted. Read my recent blog below, to see if my above suggestion could have changed the outcome in “Marriage Story.”

REFLECTIONS ON THE MOVIE “MARRIAGE STORY” BY A FAMILY LAW LAWYER; AND INTRODUCING A HEALTHIER OPTION (blog published March 22, 2020)

Dear Readers,

Welcome to my – early spring! – Newsletter. My topic for today is on the movie “Marriage Story,” and, is there a better way? Many of you have seen the movie on Netflix. If not, I highly recommend it. This is a poignant drama about two people – the husband played by Adam Driver and the wife played by Scarlett Johansson – whose relationship has broken down and they have decided to separate. They find themselves drawn into a system where their lawyers pit one against the other in an adversarial process which, by its very nature, begins to destroy the fragile bonds that the couple still share, the most important one being their love for their young son and wanting to do what’s best for him.

In the movie, the husband (“Adam”) retains a “reasonable” lawyer at first – played wonderfully by Alan Alda. However, Adam is forced to fire him and retain a “pit-bull lawyer,” so as to have an equal adversary to the scare tactics employed by the wife’s lawyer – played by Laura Dern, who won an Oscar for her brilliant portrayal of a pit-bull, charming, manipulative, adversarial lawyer who used all the tricks in her toolbox to bring Adam down to level zero.

After watching the movie, I reflected that, had the parties gone together to a first meeting with one lawyer, the damage that ensued may well have been prevented.

I call this process: ‘Early Neutral Evaluation – A Healthier Option.’ For this process to be viable, the parties are at the early stages of their divorce and are able to sit in the same room and have a certain modicum of respect for each other. This process requires a certain type of lawyer, who is skilled in negotiation and mediation, as well as being an expert in family law. The Laura Dern lawyer would not fit that profile!

In early neutral evaluation, I meet with the parties together. We have one meeting or several, depending on what the parties want. I listen to each of their stories, sometimes in separate rooms, and then together. It’s quite common that, when a couple breaks up, each party has a different view of the ‘facts!’

I ask the parties what their objectives are and what outcomes are most important to them. When hearing their stories and objectives, I look for commonalities between them. As a family law lawyer who’s practised for over 30 years, and who is now focusing on mediation and collaborative practice, I’ve seen how parties often demonstrate in the joint meetings the connections that were the good parts of their relationship! I utilize those good communications to keep the lines of communication open and help them find common ground. From that, I explain to them the various processes they have available to them when they separate. These options include ‘kitchen-table’ negotiation, mediation, med/arb, collaborative law, arbitration and finally Court as a last resort. I’ve set out these various options and a brief explanation of each, on my web site www.annefreed.com at www.annefreed.com/six-process-options.

After explaining the various process options available to the parties, we turn to a discussion of the law. I discuss with the parties the requirements necessary to have a legally enforceable Separation Agreement and provide them information about the legal issues.

At the end of our meeting, the parties will have the information they need to be able to go forward in their separation in a positive and collaborative manner. They will not have spent huge sums – that they cannot afford! – as the parties in “Marriage Story” did. They will not have undergone the terrible emotional scarring that Adam and Scarlett suffered.

In “Marriage Story’s” conclusion, the couple manages, against all the odds caused by bitter war their lawyers have engaged in on their behalves, to come together on their most important common ground – their love for their young son. As the end of the film shows, it is from that common ground and not from the lengthy litigation war that almost closed the door for them, that the parties begin to work together in their decisions going forward.

I suggest that people consider using early neutral evaluation, where appropriate, as a healthier alternative. By this, the parties will not emerge afraid of the next steps and emotionally depleted and scarred, but rather ready to engage, in a much healthier way, in the hard legal and emotional work of separating in a manner that’s best for them, and most importantly for their children.

Please feel free to contact me if you are interested in exploring this healthier alternative.

Until next time!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 38 years’ experience in the practice of family law.

 © Anne E. Freed, November 2020

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MEDIATION OF MARRIAGE CONTRACTS – YES, THEY CAN BE DONE MID-MARRIAGE! – AS A SOLUTION FOR COUPLES HAVING COVID CLAUSTROPHOBIA.

Reflections by a family law mediator on COVID’S effects on marriages and common law relationships, and how mediating a marriage contract can provide a solution.

How has COVID affected people’s marriages and relationships, and if so, is there a viable solution?

The COVID crisis has forced us to live our lives inside our homes almost 24/7. The normal routine where spouses spend the workday in separate places has been shattered. Children do their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and children has been sorely reduced if not eliminated. Today’s question is: Can marriages and relationships survive all this forced togetherness, and if so, how?

1. In ‘normal life,’ there are long marriages, good marriages, okay marriages, bad marriages and terrible marriages. By marriages, I am including common law relationships. For today I define a “good marriage” as one where the spouses are able to enjoy each other’s company, find space from each other even in the confines of the home, and most importantly they are able to face and handle conflict. By that I mean that the spouses are able to face conflicts when they arise, as is inevitable in relationships, and have the difficult conversations necessary to sustain a healthy relationship. Even these good marriages are being tested in this challenging time of COVID, and each party must put – in my view – extra energy and work into their relationship for it to continue to thrive.

2. Then there are the ‘okay’ marriages where, before COVID, the spouses were apart much more than they were together, with work, activities, get-togethers with friends and colleagues and so on, separating them through the week. Before COVID, this marriage worked because they could physically be away from each other most of the time. In these marriages, spouses often cannot deal with conflict and one or both sweep conflicts under the rug such that they become an insurmountable pit over time. These spouses stay together because of convenience, habit, common friends, because they like their way of life, etc. In this relationship, it’s probable that, because the spouses are now forced to be in close quarters with each other almost 24/7, their relationship is sorely tested. This is a relationship where, as COVID progresses and the shutdowns continue without a known end, the tension between the parties becomes thicker and thicker, with no resolution.

3. Number 3 is the bad marriage. This is a marriage where there was, prior to COVID, almost no connection between the parties, where they were like ships passing in the night (also previous). In this relationship, there is mental abuse and also, likely physical abuse. This situation is explosive and dangerous. It is a situation which is untenable and unsafe to remain in. There are many resources in the community for the spouse who is being abused. It is not in the realm of this article to discuss this extremely important topic.

There are remedies for spouses who are in situations 1 or 2 above. One remedy is that the parties can negotiate a marriage contract. They know that there are problems in the marriage/relationship but are not ready to leave. In fact, at this time they often can’t leave because of COVID. However, the parties (or one of them) want to have certain terms agreed upon going forward, including regarding the children and property and financial issues. These issues can also include who will get the home if the parties separate. Even such issues as division of labour in the home can be put in a marriage contract.

The law is clear that parties can negotiate a marriage contract or cohabitation agreement in the middle of a marriage. Most people think that a “Pre-nup” (an American term) can be negotiated only before marriage. However, this is not the case. In Ontario we call these “marriage contracts,” or “cohabitation agreements” and they can be made at any time during the marriage or cohabitation. A marriage contract can provide a great comfort and security to the parties in this time of COVID. They can be negotiated in many different ways. One positive way – if viable for the parties – is through Mediation.

For more information on this, see my blog on my website: www.annefreed.com: Can People Negotiate a Prenup After they are Married, or is it Too Late; and:, Using Mediation to Negotiate their Agreement.” (January 2020). For information on the Mediation Process, see www.annefreed.com/six-process-options.

If you wish to explore the possibility of negotiating a marriage contract during COVID, I can be reached at (416) 368-0700, or anne@annefreed.com.

This concludes my blog. To you all: Keep Safe!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 38 years’ experience in the practice of family law.

© Anne E. Freed, November 2020

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REFLECTIONS BY A FAMILY LAW MEDIATOR ON COVID’S EFFECT ON MARRIAGES AND COMMON LAW RELATIONSHIPS, AND HOW A MARRIAGE CONTRACT CAN PROVIDE A SOLUTION

How has COVID affected people’s marriages and relationships, and if so, is there a viable solution?

The COVID crisis has forced us to live our lives inside our homes almost 24/7. The normal routine where spouses spend the workday in separate places has been shattered. Children do their schooling at home. Thus, the ability to ‘get away’ from one’s spouse and children has been sorely reduced if not eliminated. Today’s question is: Can marriages and relationships survive all this forced togetherness, and if so, how?

1. In ‘normal life,’ there are long marriages, good marriages, okay marriages, bad marriages and terrible marriages. By marriages, I am including common law relationships. For today I define a “good marriage” as one where the spouses are able to enjoy each other’s company, find space from each other even in the confines of the home, and most importantly they are able to face and handle conflict. By that I mean that the spouses are able to face conflicts when they arise, as is inevitable in relationships, and have the difficult conversations necessary to sustain a healthy relationship. Even these good marriages are being tested in this challenging time of COVID, and each party must put – in my view – extra energy and work into their relationship for it to continue to thrive.

2. Then there are the ‘okay’ marriages where, before COVID, the spouses were apart much more than they were together, with work, activities, get-togethers with friends and colleagues and so on, separating them through the week. Before COVID, this marriage worked because they could physically be away from each other most of the time. In these marriages, spouses often cannot deal with conflict and one or both sweep conflicts under the rug such that they become an insurmountable pit over time. These spouses stay together because of convenience, habit, common friends, because they like their way of life, etc. In this relationship, it’s probable that, because the spouses are now forced to be in close quarters with each other almost 24/7, their relationship is sorely tested. This is a relationship where, as COVID progresses and the shutdowns continue without a known end, the tension between the parties becomes thicker and thicker, with no resolution.

3. Number 3 is the bad marriage. This is a marriage where there was, prior to COVID, almost no connection between the parties, where they were like ships passing in the night (also previous). In this relationship, there is mental abuse and also, likely physical abuse by one party to the other. This situation is explosive and dangerous. It is a situation which is untenable and unsafe to remain in. There are many resources in the community for the spouse who is being abused. It is not in the realm of this article to discuss this extremely important topic.

There are remedies for spouses who are in situations 1 or 2 above. One remedy is that the parties can negotiate a marriage contract. They know that there are problems in the marriage/relationship but are not ready to leave. In fact, at this time they often can’t leave because of COVID. However, the parties (or one of them) want to have certain terms agreed upon going forward, including regarding the children and property and financial issues. These issues can also include who will get the home if the parties separate. Even such issues as division of labour in the home can be put in a marriage contract.

The law is clear that parties can negotiate a marriage contract or cohabitation agreement in the middle of a marriage. Most people think that a “Pre-nup” (an American term) can be negotiated only before marriage. However, this is not the case. In Ontario we call these “marriage contracts,” or “cohabitation agreements” and they can be made at any time during the marriage or cohabitation. A marriage contract can provide a measure of comfort and security to the parties in this time of COVID. They can be negotiated in many different ways. One positive way – if viable for the parties – is through Mediation. For more information on this, see my blog: ”Can People Negotiate a Prenup After they are Married, or is it Too Late; and, Using Mediation to Negotiate their Agreement.” (January, 2020). For information on the Mediation Process, see www.annefreed.com/six-process-options.

If you wish to explore the possibility of negotiating a marriage contract during COVID, I can be reached at (416) 368-0700, or anne@annefreed.com.

This concludes my blog. To you all: Keep Safe!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 39 years experience in the practice of family law and mediation.

 © Anne E. Freed, October 2020

www.annefreed.com

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REFLECTIONS ON THE MOVIE “MARRIAGE STORY” BY A FAMILY LAW LAWYER; AND INTRODUCING A HEALTHIER OPTION.

Dear Readers,

Welcome to my – early spring! – Newsletter. My topic for today is on the movie “Marriage Story,” and, is there a better way? Many of you have seen the movie on Netflix. If not, I highly recommend it. This is a poignant drama about two people – the husband played by Adam Driver and the wife played by Scarlett Johansson – whose relationship has broken down and they have decided to separate. They find themselves drawn into a system where their lawyers pit one against the other in an adversarial process which, by its very nature, begins to destroy the fragile bonds that the couple still share, the most important one being their love for their young son and wanting to do what’s best for him.

In the movie, the husband (“Adam”) retains a “reasonable” lawyer at first – played wonderfully by Alan Alda. However, Adam is forced to fire him and retain a “pit-bull lawyer,” so as to have an equal adversary to the scare tactics employed by the wife’s lawyer – played by Laura Dern, who won an Oscar for her brilliant portrayal of a pit-bull, charming, manipulative, adversarial lawyer who used all the tricks in her toolbox to bring Adam down to level zero.

After watching the movie, I reflected that, had the parties gone together to a first meeting with one lawyer, the damage that ensued may well have been prevented.

I call this process: ‘Early Neutral Evaluation – A Healthier Option.’ For this process to be viable, the parties are at the early stages of their divorce and are able to sit in the same room and have a certain modicum of respect for each other. This process requires a certain type of lawyer , who is skilled in negotiation and mediation, as well as being an expert in family law. The Laura Dern lawyer would not fit that profile!

In early neutral evaluation, I meet with the parties together. We have one meeting or several, depending on what the parties want. I listen to each of their stories, sometimes in separate rooms, and then together. It’s quite common that, when a couple breaks up, each party has a different view of the ‘facts!’

I ask the parties what their objectives are and what outcomes are most important to them. When hearing their stories and objectives, I look for commonalities between them. As a family law lawyer who’s practised for over 30 years, and who is now focusing on mediation and collaborative practice, I’ve seen how parties often demonstrate in the joint meetings the connections that were the good parts of their relationship! I utilize those good communications to keep the lines of communication open and help them find common ground. From that, I explain to them the various processes they have available to them when they separate. These options include ‘kitchen-table’ negotiation, mediation, med/arb, collaborative law, arbitration and finally Court as a last resort. I’ve set out these various options and a brief explanation of each, on my web site www.annefreed.com at www.annefreed.com/six-process-options.

After explaining the various process options available to the parties, we turn to a discussion of the law. I discuss with the parties the requirements necessary to have a legally enforceable Separation Agreement and provide them information about the legal issues.

At the end of our meeting, the parties will have the information they need to be able to go forward in their separation in a positive and collaborative manner. They will not have spent huge sums – that they can’t afford! – as the parties in “Marriage Story” did. They will not have undergone the terrible emotional scarring that Adam and Scarlett suffered.

In “Marriage Story’s” conclusion, the couple manages, against all the odds caused by bitter war their lawyers have engaged in on their behalves, to come together on their most important common ground – their love for their young son. As the end of the film shows, it is from that common ground and not from the lengthy litigation war that almost closed the door for them, that the parties begin to work together in their decisions going forward.

I suggest that people consider using early neutral evaluation, where appropriate, as a healthier alternative. By this, the parties will not emerge afraid of the next steps and emotionally depleted and scarred, but rather ready to engage, in a much healthier way, in the hard legal and emotional work of separating in a manner that’s best for them, and most importantly for their children.

Please feel free to contact me if you are interested in exploring this healthier alternative.

Until next time!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 38 years experience in the practice of family law.

 © Anne E. Freed, March 2020

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CAN PEOPLE NEGOTIATE A PRE-NUP AFTER THEY ARE MARRIED, OR IS IT TOO LATE? And, USING MEDIATION TO NEGOTIATE THEIR AGREEMENT.

Dear Readers,

Firstly, Happy New Year! Today’s topic is: Can people negotiate a “pre-nup“ (in Canada it’s called a “Marriage Contract”) or a cohabitation agreement after they’re married or living together, or does it have to be done prior to their marriage date or cohabitation date? The answer is Yes! It will surprise many of you that indeed this can be done post-marriage! To illustrate, I had a case where the party came to see me a few weeks before her marriage, requiring a Marriage Contract to be completed before the wedding date. Everyone “pushed the pedal to the metal” to get this done prior to the marriage. Needless to say, due to the very short time frame, it was extremely stressful for all – including me! The parties ultimately agreed to my recommendation that they postpone the finalizing of the marriage contract until after the wedding. That way they were able to focus on preparing for and enjoying their special day, without the added stress of negotiating a Marriage Contract before their wedding.

As I told my client, a possible downside was that, once parties are married, the incentive to negotiate a marriage contract is lessened. Often it is one party – for example Joe (real names not used here) – who has the income, assets, and perhaps children of a previous relationship – who wants the Marriage Contract more than the other party – Sally. Once the parties are married, Joe can no longer say to Sally: “We can’t marry unless you sign this marriage contract!”

My client insisted to me that she and her fiancé had complete trust in each other and that therefore this would not be an issue for them.

Indeed, there can be benefits to doing a Marriage Contract after the wedding date. In the above example, Joe saying to Sally: “I will only marry you if you sign this marriage contract” – could be construed (at a later date) as getting Sally to sign under pressure. This could be a factor in Sally, at a later date, potentially setting aside the Marriage Contract, which is what Joe doesn’t want!

I had a client who came to see me 14 years after the parties had married, as his wife wanted an Agreement and he was fine with doing it. It was important that I handled his case with great sensitivity and diplomacy, due to the sensitive nature of the circumstances and so as to not interrupt a perfectly fine long-term marriage!

So what’s a good way to negotiate a marriage contract? Mediation can be an excellent process for parties to negotiate their Marriage Contract, whether before or after the marriage. The same applies to negotiating Cohabitation Agreements. When I mediate these Agreements, I am sensitive to the often delicate situation, and employ the mediation skills of reframing, active listening, and empathy, while also dealing with the hard legal issues.

Mediation provides a positive forum which can fulfill both these aspects. This process allows the parties to negotiate a solid and binding Agreement and continue their happy married lives together, with the knowledge that, just in case – given the realities of life today – they each have a protection should things not go as planned.

As always, please feel free to pass my article on to friends or colleagues who are considering taking the big step of marriage or cohabitation, or to those already married and interested in negotiating a Marriage Contract. I’m happy to discuss my mediation services with them.

Until next time!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice

 © Anne E. Freed, January, 2020

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WHAT KAWHI LEONARD AND KYLE LOWRY HAVE TAUGHT US ABOUT MEDIATION; AND WHY KAWHI WOULD MAKE A GREAT MEDIATOR!

Dear Friends and Colleagues,

I, as many of you, have been caught up in the recent excitement of the Toronto Raptors’ finals and ultimate winning of the NBA championship! For one week all of Canada was united in our pride and joy of our Raptors’ win. Of all online discussions of our team’s route to this fabulous win, a simple event – a text from Kawhi to Kyle – resonated with me. Doug Smith of the Toronto Star wrote a wonderful essay on this on Saturday, June 15th (press the link – headline – below), with the headline:

“LEONARD’S TIMELY TEXT TO LOWRY WENT A LONG WAY IN RAPTORS’ CHAMPIONSHIP SEASON”

Mr. Smith quotes Kawhi Leonard as stating:

“I texted Kyle probably a day later – or the day that I got traded – and told him. I said: Let’s go out and do something special. I know your best friend left, I know you’re mad, but let’s make this thing work out.”

Kawhi’s simple text, along with both players’ common objective of “striving for excellence,” paved the way for a strong friendship between the two men, and as well in my view, for the ultimate win by the Raptors. By Kawhi’s text to Lowry he demonstrated – par excellence – the very best traits of an excellent mediator! These include:

  1. Kawhi showed huge empathy to Kyle for Kyle’s natural upset over the trade of his best friend and fantastic player DeMar DeRozan.
  2. He showed understanding of Kyle’s wants, needs and interests in this.
  3. Kawhi “framed” his text in considerate and tactful wording.
  4. He included in his text both men’s common objective to pursue excellence: “Let’s go out and do something special.”
  5. Kawhi showed respect to Lowry by his decision to send the text.
  6. Kawhi’s timing of his text, right at day 1 of the trade, was right on and key to the successes that followed.

Kyle Lowry, on his part, affirmed the positive effects on him of Mr. Leonard’s action:

“When he texted me it was a quick text, and just showed the type of person he is… Willing to reach out, understanding that this situation was a little bit sensitive. But he knew that he felt something could be done special with our group.”

In my view, Kawhi’s action and timing in sending this simple text, was nothing short of brilliant. It paved the way for a strong and positive connection between the two men, which in turn paved the way for a close-knit team, which in turn paved the way for the Raptors’ magnificent win on Thursday, June 13th, 2019. This, in turn, paved the way for the unification of our entire country! The phenomenal outcomes are a potent illustration of what can be accomplished in the hands of a skilled mediator.

I recommend that Kawhi’s text be used as an excellent teaching tool in Mediation courses. Also, I will use this in my Family Law Mediations as a starting point for the parties, as it demonstrates to the parties how a mediation process works and its potential – when done properly – for win-win results by both. Where the parties have children, I stress to them their common objective – their children’s best interests. I utilize this to remind the parties of why they are here and what they want to accomplish at the end of the mediation.

Kawhi Leonard showed skills that the parties themselves should also employ in the mediation. When both parties and the mediator utilize these skills, this makes for a very positive and respectful process and maximizes the chances for success.

In a recent mediation of mine, each party was considerate and respectful of the other. Each was empathetic, and put themselves in the other’s shoes. Each framed their words in considerate and tactful wording. The parties defined at the outset their common objective of reaching a result that would be fair to both and which would preserve the respect and friendship the two had. They hoped that the process would enable them to have an ongoing friendship. In the result, they reached agreement they both were satisfied with and remained continuing friends to this day.

When I act as a Mediator I employ all of the above skills. Having accomplished my Master’s of Law in Alternate Dispute Resolution (ADR), I had the golden opportunity to reflect on and fine tune the skills necessary for a successful mediator. Kawhi Leonard’s action and its results have provided a shining example of the potential of mediation – when properly used – for optimal results.

If you or your friends are going through a martial breakdown, divorce or separation, I urge you to call me to discuss Mediation as a possible – and positive! – process for you to resolve your matter.

A FINAL NOTE: Kawhi Leonard showed quietness and reserve throughout the games. In his accomplishment here he has shown himself to be a man of few words, but the RIGHT WORDS!

Until next time!

Anne

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice

 

 

© Anne E. Freed, June, 2019

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COURT OR MEDIATION – A NO BRAINER?

Dear Friends,

Happy Spring Time! I’ve written today’s article from the perspective of having represented a party in a recent Court battle regarding the custody and access of a young child. My client was the father and we won three consecutive Court Orders granting him the custody of his child. A victory to be sure! However, I want to address here some of the downsides of spouses battling in Court.

It’s been a while since I decided to take on a Court matter, and I was astounded at the number of deadlines, rules and forms that today’s Courts require for the stated purpose of “making Court easier for the ‘unrepresented litigant!’” In fact, it’s just the opposite!

Having focused my law practice for many years on mediation, collaborative law and peaceful negotiation, the contrast with the Court process was starkly evident. In mediation, there are no court orders in mediation. The parties, with the help of their mediator, work to reach an agreement they both can live with. The only deadlines are those the parties themselves agree upon. The only rules are those of civility and respect: “Try not to interrupt the other person when he/she is speaking.”

The research shows that Alternative Dispute Resolution (ADR) processes have a much better effect on the children than Court. Many will remember the Toronto Life article: “The Divorce from Hell” where, after a many-years custody battle, the children refused to talk to either parent. This is not unusual when parties litigate their Divorces in Court.

When I act as a mediator, I continue to use my lawyer expertise in the mediation, providing a wealth of legal information to both parties that each party would be receiving from their separate lawyers. While stopping short of giving legal advice (not allowed by Law Society Rules), I go very far in providing detailed information to the parties. Also, I work with them to help them prepare the financial disclosure necessary in family law cases. The result is a considerable cost savings to them. Coupled with keeping the communications on track, I provide the parties the tools they need to negotiate the issues involved – both legal and non-legal – when people separate.

In contrast, the Court process is often ‘user unfriendly!’ Legal fees escalate to the point of being ultimately unaffordable for the not-wealthy client.

It’s well-known that ‘95% of cases settle at the Courtroom Door,’ just before the trial starts. A major reason is that, by the trial date, each party has spent many thousands – even hundreds of thousands – of dollars in legal fees. This creates a big incentive for them to settle their matter now as, looking ahead, there will be a lengthy trial of a week or more, which will add more legal fees. In addition, there’s a risk of the winning party being awarded costs by the trial Judge. This adds an additional cost burden on the losing party to pay his/her spouse, in addition to their own legal fees.

By the end of the litigation, people are depleted both financially and emotionally; and their children often become alienated from both.

So, I say that,  instead of spending all that money ( and time; sometimes years) to get to trial and then settling, why not replace that with a much more cost effective process such as mediation, where the parties can settle much earlier.

Despite having won three consecutive Orders in my client’s favour in my case, I noted that my client still wasn’t happy. This reminded me of my previous court days (in the ‘vineyards of Family Law!’)spent at 145 Queen Street (now the beautiful Opera House!). A major reason why 20 years ago I decided to change my practice focus to Mediation, was that it was clear that, even when my clients won, Court was a no-win for them. This was due to the costs – both financial and emotional – of the Court process.

At a collaborative law dinner I attended, the speakers – two Judges – said that they wanted more collaborative lawyers to do Court cases, as ‘it would be good to have these kinds of lawyers in the Courts.’ This was also in my mind when I embarked on my recent Court case. I note that, on the third Court date, we had a Judge who was very supportive of using alternative dispute resolution (ADR). When we finally got into the Courtroom, there was a discussion of the parties’ substantive issues e.g. custody, resolving access terms, etc. However, the costs, barriers, rules, papers and deadlines required before we were able to get before the Judge, were beyond belief. In the Courts today, it seems that ‘Process trumps Substance.’ By the time the parties get to the Courtroom door, they are drained due to the never-ending process requirements. It’s only once they get into the Courtroom that their substantive issues are finally addressed.

Of course, in some cases Court is the only option. In my recent case, the father – on my recommendation – initiated the Court Action as it was his only option under the circumstances.

Also, it’s important to note that Mediation is not for everyone. In some cases Mediation is not a viable process for parties. (More about this in a future article).

The decision as to whether to use mediation in one’s divorce should be made with the help of an initial consultation with a lawyer, whose legal duty it is to advise clients about the various ADR processes available to parties as an alternative to Court.

In conclusion, if spring finds you or someone you know entering the gates of divorce (hopefully not to be confused with other gates!), I suggest that you consider using the mediation process as a positive, more civilized, more child friendly and much less expensive way to divorce!

Until next time!

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice

© Anne E. Freed, March, 2019

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ANNOUNCING MY NEW AND EXCITING AREA OF LEGAL PRACTICE!

Dear Friends and Colleagues,

Welcome to our early winter! I wanted to let you know that I’ve added the areas of Fertility, Surrogacy and Adoption Law to my Family Mediation and Family Law practice. This is a rapidly evolving and changing area of the law. Increasingly, people are deciding to have children later, thus often necessitating these new ways of procreating. Legal work and legal advice are essential in order to protect both the donors and the donees. I’ve added this practice area so as to be able to assist the increasing number of individuals and partners who have decided to engage in these processes.

“Whom do the eggs belong to?”
In a recent Ontario Court case, S.H. v. D.H., 2018 ONSC 4506, the parties had purchased donor embryos that were in storage at a third party company. Subsequently, they separated. The Respondent – the woman – wanted to have the egg (there was one viable one remaining) so that she could use it to have another child. The Applicant husband objected. The Judge held that the egg was family property and that it was the joint property of the parties and ordered that the wife pay the husband half the price that they had paid to purchase the egg, in order to buy him out. His Honour’s Reasons included that, in his view, the contract the parties had entered into on the purchase of the embryos clearly stated that, if the parties were to separate, the wife would have the right to the eggs. This is an interesting and controversial case. To read the case, press the link here.

In closing, please forward my article and spread the word to your friends and colleagues who would benefit from my expertise in this most important and timely area of the law.

Until next time!

Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice

© Anne E. Freed, November 2018

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