Tag: collaborative family law
On November 19 and 20, 2018, the Family Dispute Resolution Institute of Ontario (“FDRIO”) will be holding its 2018 Family Dispute Resolution conference. As you can guess from its name, the conference will be addressing topical issues in family law and family dispute resolution. From workshops on financial topics common in family law, effective arbitration, and the use of interdisciplinary teams to resolve issues with high conflict clients, the conference offers a variety of practical seminars.
The FDR conference brings together a wide variety of professionals engaged in family dispute resolution from lawyers, therapists, family coaches and parenting coordinators, and business valuators. As described on their website, FDRIO serves as an organization to bring together multidisciplinary professionals who facilitate family dispute resolution.
Of course, why discuss such a conference in a blog relating to estate and trusts law? Unfortunately, family drama, difficulties, and legal issues don’t end upon the incapacity or death of a loved one (indeed, they can often get worse). We regularly see claims brought regarding or against Estates that bring up a myriad of family law issues. From preparing financial statements as part of dependant support claims and handling claims for equalization of Net Family Property to engaging with high conflict clients who are mired in the turmoil of family difficulties, it’s important to understand the family law issues that may affect claims relating to estates. Even better, however, is learning the tools and tips of family dispute resolution professionals who have accumulated a wealth of knowledge as to how to navigate the difficult family relationships that affect their clients. While we may be focused on the legal issues involved in any particular matter, we often see clients who are instead focused on the issues that we can’t assist with such as siblings rivalries and tension resulting from the breakdown of a marriage. It’s always helpful to learn from those in the trenches of family law how to better handle such situations and best assist our clients.
Hull & Hull LLP is proud to be a silver sponsor of the 2018 conference and is looking forward to learning all the latest on Family Dispute Resolution on November 19 and 20, 2018.
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We were proud to support the second annual Family Dispute Resolution conference, “FDRevolution,” held by the Family Dispute Resolution Institute of Ontario (FDRIO) last week. The FDRIO mandate includes providing information for the public and legal professionals about family dispute resolution (FDR) processes and options.
The primary focus of the FDRIO is, unsurprisingly, family law. There is a lot, however, that those of us who practice in estates can learn from FDR. We have blogged many times about the importance of family dynamics in resolving estates disputes. Last week’s conference provided a lot of valuable information about managing family relationships and effectively avoiding and resolving family disputes.
Remember culture affects everything
Baldev Mutta and Amandeep Kaur of Punjabi Community Health Services, Peel Region gave a presentation on cultural competence. They reminded the audience that culture affects decision-making, communication, and social interactions.
Legal practitioners must be aware of how culture affects their own perceptions and a client’s perceptions of a legal issue. It is important for lawyers and mediators to suspend judgement and recognize how a client’s cultural lens is different from the dominant “Canadian” culture. FDR practitioners can better help clients by asking clients to identify and describe their perceptions of the conflict or issue and then determining what values and beliefs led to that perception. Understanding how and why a client is making certain decisions can help lead to a successful resolution.
The importance of Emotional Intelligence
The keynote speaker Karen BK Chan spoke about the importance of emotional intelligence (EI) and provided some practical tools to use in dispute resolution. Chan suggested that EI is twice as important as IQ or technical skills, which she described as “threshold capabilities.” A high EI can help lawyers and mediators manage tense situations. Some practical tips for strengthening EI include: listen to , ask for, and reflect on feelings; promote empathy between parties in order to facilitate dialogue; and to name and normalize strong emotions.
For information about the FDRIO and news and events, see their website.
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Estate litigation often involves not only financial, but emotional issues. Among the most common disagreements are those between family members, whether amongst siblings, or between siblings and a surviving spouse. In some cases, the parties cannot get along and they may require that the Court determine the matter in dispute. However, there are also situations where the disagreement can be worked out between the two sides, such as through an Alternative Dispute Resolution (“ADR”) process like mediation, without the extra time and expense that comes with a Court proceeding.
Another form of ADR used primarily in the family law context is Collaborative Family Law (“CFL”). CFL is structured in a series of four-way meetings between the parties and their lawyers. There is no mediator, arbitrator, or judge present, so CFL requires a high level of trust between the lawyers and clients. Candidates for this collaborative approach to dispute resolution are often parties who still get along reasonably well, and who are willing to cooperate with one another.
Based on the frequently emotional and familial aspects of estate litigation, it seems that CFL, or a form of CFL, could be applicable in the estates context. Back in 2010, as noted by this prior blog post, there seemed to be some interest in applying the CFL model to estate Law. This article in Canadian Lawyer from later that same year discussed why collaborative estate law didn’t seem to be catching on.
One of the key features of CFL that seems to make it unattractive in estate law is that, if after the series of four-way meetings, the parties cannot agree between themselves, they must start from scratch. The lawyers who participated in CFL cannot continue to represent the same client in court proceedings. All information produced in the CFL process has to be reproduced, including financial statements, expert reports, appraisals, etc. Although the best case scenario in CFL involves saving money as well as preserving relationships, the worst case scenario could possibly involve additional expenses and harm to relationships in any event.
However, perhaps the clause that restricts a lawyer from staying on the file after unsuccessful meetings could be removed, or at least modified. One possibility considered is to disqualify only the individual lawyer who worked on the file, and not the entire firm. This may make it more accessible to parties who would otherwise be good candidates for resolving their problem in a collaborative way, as opposed to an adversarial one.
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