Mar 5, 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 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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Jan 16, 2020
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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Jun 25, 2019
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:
- Kawhi showed huge empathy to Kyle for Kyle’s natural upset over the trade of his best friend and fantastic player DeMar DeRozan.
- He showed understanding of Kyle’s wants, needs and interests in this.
- Kawhi “framed” his text in considerate and tactful wording.
- He included in his text both men’s common objective to pursue excellence: “Let’s go out and do something special.”
- Kawhi showed respect to Lowry by his decision to send the text.
- 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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Mar 28, 2019
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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Nov 20, 2018
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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Oct 2, 2018
Jerry and Sue have been married 21 years. They have 3 children all in high school. Jerry has a high level position at the bank and Sue is a high school teacher. Their relationship has deteriorated to the point where either they go long periods without speaking to each other – like two ships passing in the night – or 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 is a process that 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, in my respectful view, 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 mountain.
If mediation is only reserved for parties who can communicate with each other, then mediators would be out of business!
When working as a mediator, I work as a facilitator to get the communication going and continuing. I help to lower the decibel level when conflict inevitably arises, and I address “the elephant in the room.” I use empathy, active listening and reframing skills to help keep the communication going.
I also use my legal expertise as follows: I provide a wealth of legal information to the parties, information that each would be receiving from their separate lawyers. While I stop short of giving legal advice (as required by the Law Society Rules), I can and do provide a great deal of information to the parties. This results in a considerable cost savings to them. This, coupled with keeping the communications on track, provides the parties with the tools to negotiate the legal issues involved when parties separate.
As a mediator, I take into account that family law is 90% emotional and 10% law (see my blog on my web site). The mediator must be sensitive to the emotions in the room.
For an idea of how my mediation process works, I cannot say it better than two of my clients have said (see the first two testimonials on my web site’s testimonials page: the first by M. S., June 2017 and the second by his former partner A. D., June 2017). I’ve also included these below for your ease of reference:
My common-law partner and I split after a 17-year relationship. This was a difficult transition as we met in our early twenties and became adults together. In our journey, we bought a beautiful loft that we shared for over 10 years, became part of each other’s extended families, had mutual friends, and had two high maintenance dogs we love very much (W & L). We didn’t know what the future would hold, but being both respectful people we wanted the separation to go as smoothly as possible and not cause any further harm. We figured that mediation was the best choice for us as we did not want an adversarial process. After some research, we decided to engage Anne Freed to help facilitate our separation. Anne helped us identify our mutual goals and kept us focused on what needed to be done. Her friendly, fun and matter-of-fact personality helped us deal with these complex issues. Her vast knowledge of family law enabled us to feel better educated. As the high-income earner, this knowledge helped me truly understand what the law means for me. She was careful to remain neutral and to not give advice, but would present us with facts we should consider in our decision making. We had plenty of homework to complete on our own, which then kept some of the mediation costs down. At the end of the day, we had a draft separation agreement we could each take for independent legal advice to arrive at a final agreement, and have now started our new lives. That’s not to say this journey was easy; it was still a very difficult process that took a lot of time and effort. That said, we kept our goals in mind and got to the finish line as friends. Overall, I felt like we worked through the process as a team of three: Me, My Ex, and Anne.
M.S. June 2017
Anne was integral in ensuring my ex-partner and I were able to maintain clear and respectful communication with one another throughout the entire mediation process. Anne’s legal background was also key in keeping us well informed and aware of our options (and possible repercussions) regarding financial matters, which helped us in arriving at a fair agreement in the end. Lastly, she was conducive in my ex-partner and me solidifying an ongoing and friendly relationship to this day. It truly was a pleasure working with Anne, who maintained a professional, caring and considerate disposition throughout the mediation process.
A.D, June 2017
Mediation is not right for everyone, and there are several mediation models. For example, another model is where Sue and her lawyer and Jerry and his lawyer all attend at the mediation.
Divorce mediation is a process that requires courage by both parties to be able to sit face to face in a room with each other, with the help of a third party the mediator, and negotiate the hard issues. As well, for mediation to work, the parties should have the motivation to resolve matters. Jerry and Sue have both heard the horror stories from friends who’ve been in the Divorce Court process, and also of the huge legal fees they spent. This provides a strong motivation for them to try the mediation process. With the help of a strong and also empathic mediator, positive resolutions can be accomplished.
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, October 2018
www.annefreed.com
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