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
Firstly, I want to wish you all a Happy and Healthy New Year. Today I am discussing a subject that has become a topic of concern among many Baby Boomers: gifts to their married Millennial children.
It is well known that – in today’s economy – young peoples’ dreams of home ownership have become – for many – unaffordable.
Many parents want to help their children’s dreams of home ownership by helping them with the down payment on their first home. These parents, also, want to protect their gift.
A typical scenario:
Harry and Sally’s daughter Chloe has recently married Joe. Chloe tells her parents that they’ve seen a home that they wish to purchase. The price is reasonable, but unaffordable to the young couple. (Note this is a hypothetical scenario, and not an actual one).
Chloe’s mother Sally recently received a $250,000 inheritance and wants to gift this to Chloe to help with the down payment on the home.
Sally wants to protect her gift to her daughter so that – if at some point Chloe and Joe’s marriage does not work out – Chloe will retain this gift as her own.
Harry and Sally are well aware of the statistics that 50% of marriages fail, and they want to ensure that their gift to their daughter is protected. So how do they do this? They consult with a lawyer. The lawyer tells them that the matrimonial home – in the event of a separation – is shared equally between the husband and wife. Therefore, if Chloe and Joe separate, each shall share 50% of the equity of the home, and there will be no return to Chloe of the $250,000 down payment which had been gifted by her parents when Chloe and Joe purchased the home.
One important way, among other essential ways to protect their gift, is by the negotiation and preparation of a MARRIAGE CONTRACT between Chloe and Joe This must be negotiated and prepared to take Sally’s gift out of Ontario’s shared law regime regarding matrimonial homes.
This Marriage Contract must be “iron clad” so as to effectively exclude Chloe’s and Joe’s legal obligations to each other regarding the matrimonial home, and also, so that it stands the test of time.
Harry and Sally are worried that their daughter Chloe, a millennial, will reject such proposal as it’s not “millennial friendly”. They do not want to alienate Chloe or Joe. A process that can be more friendly to the young couple, is that the terms of the Marriage Contract are negotiated between Chloe and Joe with the assistance of a Mediator, in a Mediation Process.
The Mediator must understand that there is more to this than simply the law. The Mediator must also be attuned to the important underlying emotional aspects of this work, in order to help the parties negotiate a Marriage Contract between Chloe and Joe that they will feel fair and that they will be able to live with. (See also my blog on “Family Law is 90% Emotional and 10% Law”).
The parties should choose their mediator, and /or their lawyers if they choose that route, wisely, as not all lawyers and mediators – just as not all doctors – are the same.
If you are parents in this situation, feel free to contact me to inquire about my services as a Mediator, or as a Family Law Lawyer.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and an OAFM Accredited Family Mediator (AccFM).
In the doom and gloom of our Toronto weather and our universal depression about our Blue Jays’ loss, I thought I’d take you back to our wonderful 2019 Raptors win and my blog (published during that time). In it, I highlighted Kawhi Leonard’s and Kyle Lowry’s wonderful Mediation skills. I utilize these skills as part of my toolbox in my Divorce Mediation work. Here is my blog.
Dear Readers (from my blog of June 25th, 2019),
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:
“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 (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
Family Law is unlike any other areas of law in that there is an emotional aspect that must be considered by Family Law lawyers and Mediators due to its integral effect on the outcomes of negotiations toward a Separation Agreement. I’ve chosen today’s subject from my collection of blogs. Enjoy!
Dear Readers (from my blog of September 26th, 2017):
Welcome to my fall newsletter and blog. I’ve concluded, having practised as a divorce lawyer for 36 years, that family law and divorce matters are 90% emotional and 10% law. Also, when a case is called complex, I believe it’s the emotional part that is the complicating factor, rather than the law.
“WOMAN REJECTS $1BN DIVORCE SETTLEMENT AS JUDGE WARNS TRIAL ISN’T GOING TO BE PLEASANT.”
I came across the above headline recently on Facebook. It drew my immediate attention. New Yorker Harry Macklowe, 80, offered his wife Linda, 79, almost half his fortune to settle, but Linda wanted to go to Court. Manhattan Justice Laura Drager warned the couple: “Your personal lives, business assets, everything will be displayed for everyone to see, and… “I am concerned about what your expectations are for what this trial is going to be like. It is not going to be a pleasant experience.”
Linda is believed to have been angry due to Harry’s leaving her for a woman 20 years younger.
This case is a graphic example of my theory that divorce/family law is 90% emotional and 10% law. Hence lies the complexity, and along with that, the cost,
Experts can be retained for complex financial issues: business valuators to value a business, real estate appraisers to value real estate, and accountants to assess self-employment incomes. Divorce lawyers are experts in the law, however often have received no training in emotional dynamics. Yet we must conduct our cases with full awareness and ongoing sensitivity to the constantly changing emotions at play.
The collaborative process recognizes this, and mental health professionals can be retained as part of the multidisciplinary team. However, they are not always retained by the clients. Collaborative and mediation train lawyers to put on a ‘different hat’ and to explore and be aware of the emotional underpinnings of their cases. They must explore the “whys” of their clients’ instructions, rather than simply take instructions.
Even if mental health professionals are retained, family law lawyers must still conduct their cases with a kind of emotional expertise and awareness that is to be distinguished from therapists’ expertise.
Also, legal fees will increase exponentially with the “emotionality” of the case. Examples include:
1. Wife finds out that her husband is having an affair with his secretary. She hires a lawyer stating: “I want to destroy him!” In this case it’s the duty, in my view, of the wife’s lawyer to explore with her the underlying reasons for her instructions and not to simply ask for a huge retainer to carry them out.
2. When a husband can’t let go emotionally of his wife, therefore allowing ongoing delay in his case to the point that Court litigation must be commenced because the legal limitation period is almost up.
An example where legal fees did not escalate is the following:
The parties had had a lengthy common law relationship which had broken down irretrievably. They retained me as their mediator to help them negotiate a separation agreement. Both parties acknowledged that they were hurting emotionally. It was essential that I was always cognizant of this emotional dynamic, as it sometimes was “the elephant in the room.” I used caucusing (i.e. meeting with each party separately), as an effective way of addressing, separately each party’s emotional pain. At the same time, both were determined to be respectful of each other. They worked at resolving the legal issues in as positive and constructive a way possible. As a result, they reached solutions they both could live with. As well, their fees were cost-efficient.
One might erroneously conclude, following from my 90/10 theory, that a therapist and not a lawyer should be retained to help parties resolve their matrimonial matters. The problem with this is, while emotions color and often inform the legal matters, the issues which must be resolved are legal issues, requiring legal expertise. They include the issues of child support, spousal support, marriage contracts (“pre-nups”), distribution of property, etc.
Also, emotion directly impacts on the legal issues. For example, in the case of the wife who says she wants to destroy her husband. She is legally entitled to spousal support. However, if she destroys her husband financially, she will get nothing!
I will be continuing to write to you about this subject, as it is in my view a phenomenon that needs to be explored in depth. Stay tuned for more to come!
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
As the New Year approaches, we all start thinking about our resolutions. These may include decisions to separate or divorce. See my blog below which discusses the importance of informing oneself of one’s rights and obligations before making this important decision.
Dear Readers (from my blog of January 2018),
The New Year is quickly approaching, and perhaps you are already considering your resolutions for 2026.
With the New Year often come resolutions – to be healthier, to be happier, to work less, to work more, and so on.
The resolution to be happier may include that you’ve reached an awareness that your marriage is not working and that you, or both you and your spouse, are unhappy. You don’t know what to do, you are stressed out, anxious, not even sure you want to separate, worried that there’s lots that you may lose and lots at stake, including the security and well-being of your children and including what will happen to your assets, especially your home.
Your friends – and perhaps your therapist if you have one – may have suggested that you see a lawyer. You are very worried about doing this as you feel that taking this step will mean that you have made the final decision to end your marriage and that there’s no turning back. This may feel like you would be “putting the nail on the coffin!”
In fact, an initial meeting with a lawyer is a positive step, and here’s why:
The lawyer (he or she; I will use she) will ask you your objectives, and where you feel you are at on the continuum of decision making – undecided, ambivalent or decided.
She will review with you in detail the facts of your situation. Your meeting will be strictly confidential. In fact, your spouse will never know about it if you don’t wish to tell him or her.
She will tell you that you have many options, called “process options,” should you decide to separate. They include using mediation, arbitration, traditional negotiation, collaborative practice or court. See “The Six Process Options”on my website and also my article: “50 Ways to Leave Your Lover.”
The lawyer will work with you to help you decide which process option would be best for you and your children.
She will discuss with you various possible strategies moving forward, for example, the different ways your spouse can be presented with your decision. She will help you choose the optimal way for you and your family.
The lawyer will provide you with legal advice – based on your objectives, the facts and your situation – regarding child custody and support, spousal support and what would happen to your assets. This will include of course a discussion regarding your matrimonial home, and how that would be dealt with at law.
Conclusion: You will leave your lawyer’s office holding the most important asset you need at this point: Knowledge! Equipped with this new information, you will find yourself in a far better position than before your visit. You will be able to reflect in a calmer manner and decide on what your next steps will be, whether to remain in the marriage but with a better knowledge of your/ your spouse’s respective rights and obligations should you separate, or whether to start preparing the steps to leave your marriage.
I’ve seen clients leave our initial consultation with their heads held higher and often smiling. This is because they are now more focused and have a much better understanding of their situation and where to go, or not go, from here.
In fact, it often seems that clients leave the first meeting a head taller! This is because, to use the wise old adage: Knowledge is Power! I’ve met with people who’ve called me a few days later ready to start the process to separate, people who have kept my card and called me a year or even five years later, and people I don’t hear from again.
So, in conclusion dear readers, for those of you or your friends who are in this situation, I urge you to take the positive step of meeting with a lawyer.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
For those who are embarking on separation or divorce, a key element of reaching a fair Separation Agreement, is the exchange of financial disclosure between the parties. When I mediate my cases, I often work with the parties to facilitate this disclosure, which assists in cost efficiency.
CLIENT TO HERSELF: “Why is my lawyer making me prepare financial disclosure when all I need is a separation agreement?”
CLIENT TO LAWYER: “I know what my husband has and he knows what I have. We’ve agreed on how we’re dividing the assets. Just draft it up so we have a legal separation agreement!”
These are comments often made by clients who have retained lawyers to assist them in negotiating a Separation Agreement. Reasons include:
I (the client) don’t have the time or patience to do this work;
I don’t want to pay for my lawyer’s time in doing this;
This is just a make-work project by the lawyers (after all that’s why they’re all rich, isn’t it!); and
I trust my spouse!
So why is financial disclosure in negotiating separation agreements (and marriage contracts also!), necessary?
The following are the answers:
• The necessity of Informed Consent: One of my clients, who works in the medical field, analogizes this requirement to the written consent – “informed consent” – that a patient must give that he/she has been told of the possible risks before consenting to a surgery. For example, before undergoing eye surgery, the patient must be told of and understand the possible risks of going blind in the surgery. Using this analogy, how can a husband and wife agree on how the assets and debts will be divided or distributed it they don’t know what all the assets and debts are, or their values?
• The Terms of Agreements change once people are informed: As an example, I had a mediation case where, when I met each spouse separately at the outset as is my process when doing mediation, I ascertained that the husband had a pension of many years with his employer. When I met the wife she told me that “This will be the easiest open and shut mediation you have ever done!” When I said “You know he has a pension and you know that is considered an asset under our Ontario law” she said “Yes, but I don’t want any part of it, I don’t care what it’s worth” and that her husband would have a fit if she asked for a share. I then asked her “What if I request an actuarial valuation of his pension – 2 – and it turns out it’s worth 1 million dollars?” Knowing that she could be entitled ( in the absence of any other assets) to half of that value, my client wisely told me to go ahead and have the pension valued. In fact the final point they ended up arguing about, prior to settling all terms of their Separation Agreement, was the pension value. The actuary provided 3 possible values based on 3 possible retirement ages of the husband, and guess which value each spouse argued!
• Ignorance is not bliss when it comes to negotiating a Separation Agreement or a Marriage Contract! It’s easy to agree on things, e.g. “I don’t want his pension,” if one doesn’t know what they’re worth; or that “Each shall keep his/her own assets,” without knowing what they’re worth. In order to make an agreement that will stand the test of time, it must be based on the exchange of clear, thorough and complete financial disclosure, so that each party, when negotiating the terms of the agreement, will make their decisions based on knowledge and facts, i.e. informed consent.
Click here to read the rest of my article (first written in 2013 and still relevant and important today).
Many people come to Family Lawyers asking for a quick and dirty (and cheap!) Separation Agreement. Today’s question is: will such an Agreement be fair to the parties and will it stand the test of time?
I had a client – Mrs. X – who came to me several months after she had signed a (‘quick and dirty’) Separation Agreement with another lawyer. Mrs. X deeply regretted the Agreement she had signed and felt that she had settled for far less than she should have. She told me that she had separated the past fall and had signed the Separation Agreement soon after. Further questioning revealed that – in the interests of getting her Separation Agreement finalized quickly – she had asked her lawyer to take several shortcuts. These shortcuts included: not obtaining a value of the matrimonial home, not requesting a valuation of her spouse’s pension, not requiring Mr. X to provide the required full and detailed financial disclosure, and so on.
It was clear that Mrs. X had not been provided all of the detailed documents necessary so that her lawyer could do the necessary analyses to calculate Mrs. X’s legal entitlements.
It was also clear that Mrs. X had been very worried about legal fees, and hence had limited her previous lawyer’s time/work.
Now, six months later, what was Mrs. X to do? The good news is that – in family matters – a spouse can apply to the Court to set aside a Separation Agreement. However, this is an uphill battle, and the onus will be on Mrs. X to prove the necessary circumstances/elements that the law requires in order to win such an application to the Court.
The difficult part is – in addition to the fact that in Court there are no guarantees of victory – the work that Mrs. X’s new lawyer will have to do will greatly add to her legal fees, as the work will be much more complicated than had Mrs. X allowed her previous lawyer to do the necessary work in the first place.
So, today’s teaching piece is that, if you’ve decided to separate, beware of doing a “quick and dirty” Separation Agreement. While you may succeed in your goal of saving time and legal fees in the immediate present, the risk is that, in doing so, you will have likely limited your lawyer’s time and work to do her due diligence necessary to meet the long-term results you want, i.e. a Separation Agreement that is fair to you, and also that will stand the test of time.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
People think they have to do their pre-nup before marriage and it becomes a major pressure cooker amidst all the marriage preparations. In a previous article, I show that pre-nups can also be done after marriage!
Dear Readers, (originally published Jan 16, 2020)
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
Listening to this podcast I reflected on and was struck by the reality that it is rare that one finds a Family Law lawyer or Family Law Mediator who is empathic!
In the 40+ years of my profession, I have observed that there have been a very small number of lawyers and Mediators who have shown empathy in their work. On the other hand, I am pleased to say that Ms. Brown’s and Mr. Grant’s podcast confirmed to me that, indeed, I am empathic in my dealings with people and my profession.
It is a sad fact that, among many lawyers – including Family Law lawyers, Mediators and Arbitrators – empathy is not one of their skills. Instead, surprisingly, lawyers often exhibit poor listening skills (i.e. talk rather than listen to their clients), exhibit traits that include bullying, aggressiveness, ‘holier-than-thou’, braggadocio, competitiveness, insensitiveness, and telling the client what to do, including some lawyers who call themselves collaborative lawyers. This in my view is shocking, especially in Family Law matters.
In my view, Empathy is an essential trait of the good Family Law Lawyer.
Family Law, in my view, is 90% emotional and 10% legal (see my blog at www.annefreed.com/2017/09), and it’s the emotional part that causes the most complications, adversariness, and costs of the Family Law case. For example – using the fictional names “Harry” and “Sally” – Harry had a successful business, and Sally was a stay-at-home mother after the kids grew up and left the home. Sally found out that the husband was having an affair with his secretary and became furious. Sally went to a high-priced lawyer known for “winning” his cases. Sally broke down in tears when she told the lawyer the story. Sally told the lawyer that she wanted to destroy the husband because of what he did. The lawyer – known for ‘winning’ his cases – said okay and requested (and received) a huge retainer to accomplish what Sally wanted. In contrast – had I been the lawyer in this case – I would have listened carefully to Sally, shown empathy to her, and explained to her that by “destroying the husband” would destroy his financial success and thereby destroy her claim for spousal support!
A good family law lawyer must be a good listener. She listens to the clients’ words, their tone, and indeed their physical movements. Of course, this also goes for Mediation. This is necessary to help parties reach their objectives.
Listening to Ms. Brown’s podcast, it confirms what I already know, that, in fact, I am one of a small subset of Family Law lawyers who use empathy in their cases.
This does not mean that using Empathy means these lawyers are “touchy-feely” or cross the line to “therapizing” or “social working” their clients! There is a line that good Lawyers and Mediators know not to cross. However, the Lawyer and Mediator must listen their clients, and exercise Empathy. This will help the lawyer get to the heart of the matter necessary to help the parties reach a settlement that is satisfactory to both parties.
For those of you interested in using Mediation for your Divorce or Separation issues, feel free to email me at anne@annefreed.com to schedule your complimentary touch base with me.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
Happy Fall! Today’s post is “How to Ensure that You Have a Confidential Divorce.”
Most of you have heard by now about Nicole Kidman’s and Keith Urban’s Divorce. Already, social media is full of speculation about the details of their financial settlement.
Confidentiality is of particular concern for high net worth individuals who don’t want their financial affairs available to the public.
There is a way, dear Readers, of avoiding disclosure of one’s private financial affairs in a Divorce or Common Law Relationship Breakdown. See my Answers below (from my previously published February 27th, 2024 blog):
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Dear Readers,
Happy almost Spring-Time! For today’s topic, I will discuss how to have a Confidential Divorce.
In this regard, it is important that you know that, when one’s matrimonial matter goes to Court, the Court materials including Pleadings, Affidavits and – most importantly – the parties’ Financial Statements and Financial Documents will be in the Court file, and will be available to any members of the public for viewing.
Let’s return to Harry and Sally’s situation. Between them, they possess considerable financial assets, and also debts. Also, they have a complicated financial picture.
There are many processes available to Harry and Sally to negotiate their Separation Agreement and Divorce. It is of utmost importance to each that their financial records remain confidential. There are several processes that offer such Confidentiality. They include the following:
Mediation, and
Mediation/Arbitration (also called/Med/Arb).
We will assume that Harry and Sally have retained lawyers. Harry and Sally have heard from friends about these processes and are interested in utilizing them. They speak to their lawyers and their lawyers are on side. In fact, Judges at the Courts also actively encourage Mediation to be held, outside of the Court – even to happen alongside of the Court process – to try to settle all or some of the issues in the Court matter.
Harry and Sally decide with their lawyers to try a Mediation/Arbitration Process. This is a 2-stage process where the parties engage in private Mediation with their lawyers present, with a Mediator who – as the issues are financial and legal – is a lawyer. If Harry and Sally cannot resolve their issues in the Mediation, then the Mediation process will end and will be replaced by an Arbitration Hearing.
In this, the Mediator will take off her Mediator hat and put on a new hat: her Arbitration hat. The Arbitration will proceed as a Hearing – much like a Court Hearing, with witnesses and in accordance with the Rules of Evidence just like in a Court Process. At the end of the Hearing, the Arbitrator will make the Decisions, and these Decisions will be binding on Harry and Sally just as Court Orders would be.
It is important to note that, in both these processes – Mediation and Med/Arb – Financial Information and Documentation in detail must be produced, in order to have a binding Agreement between Harry and Sally, and not have to look over their shoulders in the future. Harry and Sally must lay all of their financial assets and documents on the Table. Full Financial Disclosure is a fundamental prerequisite to have a lasting and binding Settlement, as Harry and Sally each need to have all the financial information about the other on the table in order to be able to make informed decisions (see my blog on “Financial Disclosure”).
In Mediation, and in Mediation/Arbitration, Harry’s and Sally’s Financial Information will remain Confidential to the parties, their lawyers, and the Mediator.
It has been found that the “threat” of an Arbitration Process – where third parties not Harry and Sally shall make the decisions regarding their lives, often has the effect of the parties settling in the Mediation stage!
Where parties divorcing have high net worths and financial information that they do not want to be available to the public, Confidentiality considerations are especially important.
The one caveat in a Mediation/Arbitration Process is that – if Harry or Sally wishes to appeal the Decision of the Arbitration –the appeal must go before the Court. Once at Court, all the parties’ financial records will be available to the public.
In a Mediation only Process, the Confidentiality will remain.
For further information on these processes, see my blogs as follows:
My practice focus, as a lawyer and mediator with over 35 years experience and expertise, is on acting as a Mediator in a Mediation Process, or as a Mediator/Arbitrator in a Mediation/Arbitration Process. If you are interested in discussing the possibility of retaining my services in either of these processes, feel free to contact me at anne@annefreed.com.
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, Certification in Collaborative Practice, as well as over 35 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne is also a Certified Specialist in Family Mediation (FDRP Med), now changed to OAFM Accredited Family Mediator (Acc.FM).
Jerry and Sue have been married for 21 years. They have 3 children in high school. Jerry is a high-level bank executive and Sue is a high school teacher. Their relationship has deteriorated to the point where they go long periods without speaking to each other – ‘two ships passing in the night’. When they talk it invariably erupts into a shouting match. They both have had enough and have decided to separate.
They’ve heard of a process called Mediation and that it’s a positive way to divorce and much less expensive than Court proceedings. They’ve also heard that Mediation can minimize the fallout effect of separation on the children and help the parties communicate after the divorce.
They’ve also heard that Mediation only works where the parties have good communication to begin with.
Well, Dear Readers, I’m here to tell you that all of the above are correct except the last item. The premise that only spouses who have good communication can mediate their divorce is unrealistic. The primary reason why a marriage deteriorates is because couples don’t or can’t communicate with each other. For example, where one party wants to address issues as they come up and the other party sweeps issues under the rug; this will lead to an inevitable deterioration of the relationship as the pile under the rug becomes a minefield.
If Mediation is only reserved for parties who can communicate with each other, then Mediators would be out of business!
There are many Mediation models. In one model, Jerry and Sue would attend at the Mediation with their lawyers. In another model, Jerry and Sue would attend at the Mediation on their own.
For those of you interested in using Mediation for your Divorce or Cohabitation breakdown issues, press Schedule a Quick Connect to schedule your complimentary meeting with me.
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, Certification in Collaborative Practice, as well as over 38 years’ experience in the practice of Family Law, Family Mediation and Arbitration. Anne also is a Certified Family Law Mediator. In addition, Anne is a Certified Specialist in Family Mediation (FDRP Med) and OAFM Accredited Family Mediator (AccFM).
