By John Goodwin of John G. Goodwin, Family Mediator/Collaborative Family Lawyer/Family Lawyer posted in Preserving Your Assets & Family Relationships on Thursday, October 20, 2016.
A few months ago, I got a call from a friend of mine who was concerned about his son’s family – his son’s wife had just announced that she wanted a divorce and was leaving with the two young children.
Short of recommending good marriage counselling which was too late in this case, the best advice I could give him was to encourage his son and daughter-in-law to choose a good process for resolving their separation issues. This is crucial for preserving as much as possible of the family assets and the family relationships.
We have all heard nightmare stories of cases which have gone out of control and ended up costing thousands of dollars and what remained of the family connections.
In a recent high conflict divorce case in British Columbia, the judge was so fed up with the conflict between the parents of a four-year-old girl, that he declined to hear any motions in the case unless there was an emergency and no other judge was available – he basically fired the litigants.
In another recent high conflict case, this time in Ontario, the judge noted that the father wound up spending $300,000 on lawyers and the wife more than $200,000 on her legal fees, both parents being “nice average people of modest means”. Before the litigation started, the husband had emailed the wife with the following plea:
“We are both reasonable people and I really think we can work this out without spending 40 to 50 thousand dollars a piece in lawyer fees only to have a judge tell us something we could arrange ourselves. Please I’m begging you to be reasonable.”
In conclusion, the judge wrote:
“No matter what costs order I make, the financial ruin cannot be undone. They’ll never recover. Their eight year old daughter’s future has been squandered. How did this happen? How does this keep happening? What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”
Is not difficult for this to happen – even if one of the lawyers or one of the clients is unreasonable, that person can drag the other three into expensive litigation.
How To Choose a Process
As family law professionals, we are asked by clients for advice and recommendations on choosing a process – how are they to choose?
At this point, we need to consider all the process options including family mediation, collaborative family law, arbitration, lawyer – lawyer negotiation or litigation.
All of these processes are legitimate options for separating couples and can be described as such to clients but before giving process advice, it is helpful to know from the clients:
A. the quality of the relationship (level of cooperation and respect) with their spouse,
B. the emotional state of the parties,
C. their ability to communicate with each other,
D. the complexity of the issues,
E. the urgency,
F. any difficulties experienced to date,
G. the importance of privacy,
H. their financial means, and
I. the level of responsibility and control they want over the process.
For most people, the decision, in its most simplified form, is based on how much they want their lawyer involved in the work to be done (collecting and organizing information about the relationship and the family finances, giving legal advice, the negotiations, drafting agreements, etc.).
Where there are children, it is often advisable to involve a parenting mediator (a person with mental health / family relations background or other directly related experience) to deal with the child and family relations issues. Depending on their qualifications, such a parenting mediator can interview the children if necessary. If these issues are given priority and (ideally) resolved before the financial issues are finalized, the spouses are often in a much better frame of mind to deal efficiently and effectively with the financial issues. This approach is appropriate, regardless of the process involved – whether it starts out with a financial mediation, CFL, lawyer -lawyer negotiation, arbitration or litigation.
Lawyer mediators then often deal with the financial issues and draft the separation agreement.
By following these guidelines, you can often spare your family the unnecessary financial costs that are so easy to incur with a few bad choices.