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)
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 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