Many of you watched the recent Canada/U.S. Olympic Hockey Gold Medal game. As you know, the U.S. team won Gold and our Canadian team won Silver.
We all saw the sadness etched on the faces of our young Canadian hockey players, and their bewildered “Huh? What’s this?” looks when receiving stuffed animals in the midst of their grief!
Many of you also watched the amazing performance of the young figure skater Alysa Liu, who won gold in Women’s Figure Skating competition. The joy and elation she expressed during her performance will remain in my mind for a long time.
Alysa said, in her interviews, that she didn’t care about winning the Gold Medal; that all she wanted was to skate on Olympic ice, to enjoy her performance and to bring joy to her audience. And yet, despite not caring about the result, she won the Gold!
In contrast, Ilia Malinin – whom many regard as the world’s top figure skater – fell and lost in the most important skate of his life: his skate for the Gold Medal.
The following are my reflections on these events:
Instead of appreciating their great accomplishment of winning the Silver Medal, Canada’s hockey players didn’t appreciate all the steps they had taken and games they had won against world hockey teams, to get to this final game. They didn’t appreciate that their Silver Medal was indeed a win.
Ilia, the skater whose face showed from the start of his performance the stress of his goal to win Gold and his focus on this objective, fell and lost.
Alysa – in contrast – smiled and laughed from the start of her performance and throughout. It was clear that she enjoyed every minute, and, as a result, so did her millions of viewers from all over the world.
The Differences:
In her performance, Alysa focused on the process, rather than on the result.
In his performance, Ilia focused on the result rather than on the process.
Canada’s hockey team focused on the result rather than on the process – i.e. all the steps they had taken and all the wins they had had, to get to the Olympic stage and to win the Silver medal. For them, the only important thing was to win Gold.
How do these lessons apply to Family Law and Family Mediation?
Jane and Ted (hypothetical names) have made the decision to separate. In their first meeting with their lawyers, each of them state, “I want a Divorce.” The focus of each was on the result.
Note: the most important document in Family Law is the Separation Agreement, as their lawyers will explain to them, as it sets out their respective rights and obligations. The Divorce is secondary.
Similarly, in Family Mediation, Jane and Ted, when asked at the first meeting what their objectives are, both state to the Mediator that they want a Divorce.
In this, both Jane and Ted are focusing on the result, rather than on the process.
Mediator Approach 1:
Many Mediators, when mediating family cases, focus on the win. Their predominant goal is to have a result at the end of the day, i.e. a final signed Separation Agreement.
Such Mediators often speed over the necessary steps to get there.
In the result, when the Mediation ends and the Separation Agreement – the final step – is signed by all, the parties are “happy” and the Mediator’s ego is assuaged – as he has added one more notch to his collection of “wins”.
The problem is that, in these kinds of Mediations, in the days and weeks that follow, parties often have regrets about the Agreement they signed. Query whether the terms were what Jane and Ted really wanted, or whether had they been pressured by the Mediator to settle at the end of the day, no matter what!
Mediator Approach 2:
Other Mediators focus on the process. In this, they diligently work through each of the necessary steps with Jane and Ted. Using this process approach will ensure that the final Separation Agreement – the result – will be terms that both parties understand, agree with and are good with. These cases don’t necessarily settle by the end of the Mediation. However, they often settle soon after, as the crucial groundwork has been done in the Mediation. In my Mediations, I use Approach 2.
The Mediators who use Approach 1, often use pressure, intimidation and, sometimes, unfortunately, bullying of the parties in order to get to the result – i.e. a signed Separation Agreement by the end of the Mediation day. The result will be an agreement which one or both of the parties may well ultimately regret.
In my view a successful Mediation requires that the Mediator works with the parties carefully and diligently through each step of the process. In so doing, the result will come – if not by the end of the Mediation meeting – then subsequently in the days and weeks that follow.
Mediator 2’s objective is not to ensure that the parties sign a final Separation Agreement that day, but rather to work with the parties to ultimately sign a Separation Agreement, when they are ready.
With my clients I use the analogy of building a house. The house is built brick by brick, frame by frame. To do otherwise will result in a house that will eventually collapse, as it does not have the necessary strong foundations.
Going back to my Olympics example, a good Mediation is when the Mediator works with Jane and Ted through the Process, step by step. In that way, just as for Alysa Liu in the Olympics, the Result will follow.
When the Process is successful, the Result – a Separation Agreement that both parties feel is their own, can live with, can move forward without regret, and which will stand the test of time – will most likely be accomplished.
In this way, while it may take more time, the foundation will have been built for a strong and lasting Separation Agreement so that Jane and Ted can move on to the rest of their lives with a clean slate (‘tabula rasa!’).
Feel free to contact me if you are interested in using my Mediation services.
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 an OAFM Accredited Family Mediator (AccFM).
Getting married is easy; Getting divorced is hard, as those who have undergone these experiences will attest to!
I have long reflected on this contrast. I see these over-the-top weddings, and magical fairytale weddings happening frequently – especially in June.
The statistics are that approximately 50% of people divorce. As such, 50% of those participating in their fairytale weddings will get divorced!
I also think about the sadly large statistics on family violence occurring in marriages and common law relationships. I reflect on: How many of these people had fairytale weddings?
In my 40-year career as a Family Lawyer and Mediator, I have been and remain convinced that a fundamental key to a good marriage is very good communication skills utilized between the parties.
I wonder how well Jane and Bob (fictional names of course!) – who just had a fancy, fairytale wedding – communicated, and/or learned to communicate effectively, before their marriage?
By communication, I mean not just the wonderful exchanges between Jane and Bob when in the throes of first love and passion, but, most importantly, how will Jane and Bob communicate when times get tough, and when problems and challenges, inevitably, will occur?
It’s extremely easy to get married in Ontario.
On the other hand, as those who have experienced Divorce know, it is difficult, and often a lengthy, expensive and frustrating battle – both financially and emotionally – to get divorced.
In my view, it would be a great idea and important, for couples – before they marry or move in together – to have sessions with a marriage counsellor prior to embarking on this hugely important step.
Sessions with an excellent communications specialist or therapist could go a long way to help couples ‘set the table’ for a good marriage.
I wonder if – instead of engaging in the huge cost of the over-the-top marriage celebrations we see today – parties would instead invest these funds in good counselling before they marry?
Another safeguard would be the negotiation between Jane and Bob of a Marriage Contract[1] or Cohabitation Agreement before embarking on the road of marital bliss. In such a Contract, Jane and Bob could discuss anything, including how they will deal with disputes and differences as they come up. The Contract could also include what they would want to see happen if the parties separate or divorce.
Although these discussions will not be easy, they will be a ‘reality check’ and may well assist Jane and Bob to establish the beginning of – or refinement of – an honest, thoughtful and comprehensive communication that will stand them in good stead on the challenging road ahead.
Feel free to contact me to inquire about my Mediation services, in helping parties negotiate their Marriage Contracts or Cohabitation Agreement.
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 an OAFM Accredited Family Mediator (AccFM).
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).
