My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Wednesday, December 8, 2010

What will we tell the children?

Over the years I have noticed that a significant number of parents resist strongly any attempt to discuss the children with me or indeed with anyone else. Any discussion is vigorously blocked. For parents, I suspect that one of the most upsetting things about separation/divorce is the fear that children will be so fundamentally damaged that they will fail to nurture their talents or that their innocence will be compromised or taken away, their memories of childhood will be tarnished, they will become dysfunctional members of society or they will form unhealthy adult relationships. Over the years, I have found that this fear for many parents is so overwhelming they cannot even bring themselves to articulate it and so they block it out by refusing the discussion altogether. Is it inevitable that children will be damaged by separation and divorce? The good news is that it is not inevitable. Of course, children will have a problem with the separation of their parents and they will suffer. However, long term suffering and damage is something different altogether. All the latest research would say that children can come through separation and divorce in good mental and physical shape provided they are not caught up in or witnesses to a prolonged, bruising confrontation between the parents.
From the time that the decision is made to separate, the focus should be on childcare and management. Traditionally, we lawyers have tended to take the view that really the only issues that concern us are finances and property. Indeed, when I was doing my training, we were encouraged to think that way. We were told categorically that we were not counsellors and that we should only advise on the law and furthermore, that we should stay objective, professional and detached at all times. This is the way I was trained and I have questioned it for years. If we let in the emotions we might get swamped by them compromising not only our detachment but also our own health. It is true, that can and does happen but the answer is not to lose our ability to connect with the whole person, the answer is to train us in techniques that allow us to manage those emotions and to screen ourselves. Professionalism, objectivity and detachment are fine qualities in their place but not at the expense of humanity, emotional intelligence and common decency. Good family Lawyers should be able to balance all of the above. As I have said in many different articles, people come to us with emotional issues, financial issues, property issues, child issues and so on. In the midst of their trauma, we cannot expect them to compartmentalise themselves when they are speaking with us. At the very least, we need to recognize that our clients will be adjusting to relationship changes on many different levels, changes in the primary relationship between the couple, changes in extended family relationships, changes between parent and child and changes in the parenting relationship itself, social and work relationship changes, changed self perception as well as financial and property changes. Indeed, the financial and property changes may well be the easiest of the bunch. As lawyers, we cannot ignore any of the changes and serve our clients well. Since we are the first port of call for many families in trouble, at the very least we need to be up to date with professional and voluntary services in our area. However, handing out a list does not, in my view, fulfil this obligation to our clients. I am of the view that it behoves us to be able to stand over the names we give out to people and not just their qualifications. I always ask my clients for feedback on counsellors and therapists that I have referred them to or with whom they have attended without my knowledge. I am always on the lookout for new names, new skills and new services. I meet with and speak to everyone on my list. However, even that, in my view, is not enough. We, as lawyers, also need to be able to offer clients practical advice and information on all the things that concern them including their children. To do so, we need to be sensitive to the issues that clients are likely to encounter on their separation journey.
It is remarkable that while the vast majority of our family law clients will prioritise the health and well being of their children as their chief concern and primary focus, we lawyers will frequently ignore issues surrounding the children that we know exists, simply because the parents assure us that the children are not manifesting any “problems”. Just because a child is not misbehaving in school or their school work is not deteriorating, does not mean that there are no problems. Since we know that children will suffer to some degree when their parents separate then running away from that fact will not benefit anyone.
At the point of separation, clients are dealing with so much personal fallout that they may simply not want to take on board their children’s suffering as well. They are overcome and vulnerable. As lawyers, we need to offer reassurance and guidance and that means treating the client as a whole person, seeing the family relationships in context, being up to date with the latest research, having a basic grasp of the stages of separation and divorce ourselves and having a grasp of child issues in separation and divorce not to mention the ever handy list of referrals.
There are many issues that are likely to arise but one of them is “Should we speak to the children and if so when is the right time? Who should speak with them and what should they say?” This is one that comes up all the time. Even if a parent does not raise this issue, we know it exists and we know that it needs to be handled with sensitivity and so we should raise it even if the client does not. Many fine articles are written on this subject but we can certainly offer some guidelines. For example, where possible, both parents should speak to the children together having decided what they will say before hand, keeping it brief, child friendly and with no blame. Reassuring the children that the separation has nothing to do with them and that they cannot fix it is also extremely important as the research would indicate that frequently children will blame themselves for the marital or relationship breakdown. It is very important for both parents to reassure the children of their love for them and to distinguish for them the different kinds of love that exist and that the love of a parent for a child does not cease and will not cease. The children should be reassured that both of you will continue as parents and that they will continue to be loved by and to love both of you. Research shows that the self esteem of the children is bound up with their relationship with each of the parents. While emphasising them things that will continue for the children such as their relationship with extended family and friends, it is important to inform them of what will change. Where they will be living and with whom is very important information for them to have and they should not be asked to make any decisions in this regard. These are parental decisions and all the research shows that children do not want to be asked to decide these things. It is too much of a burden to place on them. Listening to them and being emotionally available to them is not the same thing as asking them to make decisions. Children need to be given all the details on where the moving parent will reside including contact details and reassurance that they can get in touch as often as they need to or if not, when they can get in touch. Sometimes it is not possible for a parent for work reasons to be available all the time to their children but setting aside a slot could be very reassuring to a child in this situation. A good parenting plan is very important for the children. Children like routines and they like to know what is happening and when. Research shows that a well thought out schedule placed where children can see whenever they need to, works best for them. Sometimes a parent will be moving away or will choose to minimize future ongoing involvement with the children. Difficult as this is, it is important to be honest with the children without being brutal and again without blaming. Finally the school needs to be informed without breaching the children’s need for privacy, about the situation so that they can keep an eye on the children. They also need to be given up to date addresses and contact numbers as well as being informed about collection and delivery from school.
Lawyers should be able to talk through these issues with their clients and offer some practical assistance and guidance as well as being able to refer problems outside their competency to good professionals who can assist. They should also be able to direct clients to articles books and research on parenting post separation. I know that many people, lawyers included, will see this as outside of the remit of lawyers. Recently I suggested to a colleague of mine also a family law specialist that we should advice on how to handle this conversation and she responded that “We are not therapists”. That is correct but we are family law specialists and if we are to call ourselves that then we have to offer more than just a bread and butter service – silver service at least!!

Wednesday, November 24, 2010

All I want for Christmas ..

More than any other time of the year, Christmas tends to pose the greatest challenge for separated and divorced parents. The biggest issue is generally – where will the children spend Christmas, followed by – who has them on Christmas eve, followed by – how will we divide up present buying and santa given that we are hardly speaking or not speaking at all, followed by – who has them for New Years. All of these issues can be minefields in the hands of warring parents. Over the years I have presided over many a Christmas access battle, the odd festive kidnapping and one memorable Christmas, my brother was on one phone to a Father for several hours on Christmas day and I was on another line to the Mother as they commenced their domestic journey toward separation– that must have been a fun Christmas for the children! I remember my own Mother being absolutely furious at the interruptions as the calls went on and on throughout the day.
For many of us, Christmas brings us back into our own childhoods, to a more innocent time perhaps and a time of anticipation mixed with comfort and security. We tell ourselves that we want to recreate that for our children and, of course, that may be true but buried underneath all that may be our own need to feel those feelings again. Apart from our own feelings, there is the potent commercial sell of Christmas. Those of us who do not have children may feel inadequate and incomplete during this season as well as those of us who are unmarried, homeless, old, widowed etc. So it is as well to understand that we are not alone. When we combine those potent feelings with a power struggle and the loss of focus that the emotional flooding of divorce or separation brings on, it is not too surprising that Christmas can become a major battleground each year. So what can we do to prevent this happening?
The first thing is to have a plan for Christmas. Don’t leave things to chance and don’t assume anything. Make sure that you have discussed things and you have a clear strategy for the Christmas period. The first thing to remember when you make your plan is that Christmas is about the children and not the adults. Therefore, the focus is not about my rights or your rights but about how we make this Christmas a good one for the children and not just this Christmas but every Christmas. For the children of separated parents, this is a difficult time as well. Since we are the adults, it is our job to make it easier on them and not the other way around. The every second Christmas routine may work well for parents but it is unlikely to find favour with the children. Children are creatures of habit and they like things to be exactly as they would expect them to be each Christmas with a little room for originality but not much. Therefore, as parents, we may have to accept that divvying up Christmas day on a turn and turn about basis may feel “fair” to us adults but may not be at all fair to the children. We need to look at these things with a fresh mind.
So maybe you won’t get to spend Christmas with your children. Realise in good time that this will be very hard and rise to the challenge. Unless you absolutely cherish being alone, plan not to be alone. One suggestion I came across was getting a few people together in the same situation as yourself and organising a dinner party. Sad as that is, it is not the end of the world, provided you do not sit at home moping all day. If you sit at home all day getting upset and morose, your children are just going to feel really bad and so are you. However, if they think you are ok, then they will be ok. Remember that your children will find Christmas without a parent challenging as well. Try and ensure that each parent allows them the time to reflect on this by talking openly about it. If you are the designated house for Christmas then include the absent parent by plotting with the children on a suitable present and taking care and time to wrap that and ensuring phone calls are made on the day. For the absent parent, why not make Christmas Eve the important day in your house if you can’t have Christmas Day? After all there are many countries where it is far more important than Christmas Day in any event. The children will be delighted to have a celebration wherever and whenever that celebration occurs and to build traditions around that. And if you don’t want to turn up like a lost soul at your family of origin, though I would say they would be delighted, then volunteer to do something on Christmas Day or make a plan for it – for example, take part in the Christmas swim and the conviviality around that and spend the rest of the day basking in your accomplishment and recovering. Whatever it is , the key is to have a plan.
It is important that while children enjoy and celebrate Christmas that parenting quality does not diminish to the extent that outrageous sums of money are spent and there is unnecessary doubling up on gifts. Where possible, as I have said before, parent on the “what if” basis ie what if we had not separated? If you and your ex had not separated , you would watch your spending and you would each contribute to the costs. Try, where possible, and do the same when separated. Sharing gift ideas and information about what each of you have planned for Christmas is both prudent and mature.
Some separated parents will manage to get together for a family meal on Christmas Day and that is truly wonderful if it can happen and happen with good grace. Obviously, it is not wonderful if it is an excuse for sniping and bickering or for other family members to have a go at the ex. Other people will divide up the day. Whether or not that is a good idea depends on how it impacts on the children. Whatever solution you and your fellow parent consider, has to be one that the children will benefit from and that is not primarily designed to make both of your feel that you have got your due. For many children, leaving their nice warm house and new toys to go off somewhere with the visiting parent on Christmas Day is not welcome. Rather than dragging them out, perhaps a fresh think might be required. Look at the holidays as they occur throughout the year and ask each other which parent tends to be more involved with the children on that particular holiday. For example, some Dads get very invested in Halloween and love the whole celebration whereas Mum may see it as an inconvenience or vice versa. Some Mums are totally devoted to Christmas and have been collecting Christmas decorations and memorabilia for years, whereas Dad can take it or leave it and even at the best of times was a 4 o’clock shopper on Christmas Eve. Some people adore New Years and others try and sleep it away. Looking at all these holidays in an honest way can quite often help us to divvy them up more realistically, ensuring maximum enjoyment for the children.
Sometimes you won’t be able to agree on how to divide the holidays and when that happens, you just have to designate. Decide which parent will have that holiday. Don’t just split them up or do a turn and turn about, because that seems like the best compromise. Be creative and look at the bigger picture. Designating specific holidays to each of you allows for you to build up happy traditions in each of your homes. Many parents will suffer from extra guilt because they will feel that their failure has brought this extra suffering on their children. Guilt is such a waste of time and serves no one. When you are happy, your child will be happy.

Friday, November 5, 2010

Difficult Conversations

Your body tells you when a conversation will be difficult. It is the tight feeling in your stomach, the slight headache that you have had all day and that jitteriness that you have been experiencing. These senses all put us on notice of a difficult conversation which has to be had but which we do not want to have. When we get those signals from our body we need to pay attention and think about what might be going on and how we are going to deal with it. The more we are in dread or feeling overwhelmed by what lies ahead the more we need to pay attention to ourselves. It could be that the imminent conversation is hitting a sore spot in our own psyche and that is causing us to be in dread rather than anything inherent in the conversation necessarily or, of course, it could be that the conversation itself will be difficult of its very nature.
The other day a friend approached me looking for help with a forthcoming “difficult conversation”. It is a conversation that many couples may need to have. My friend is divorced and in another relationship and she and her partner have different parenting styles. Recently Dad , who was absent from the scene, returned, causing my friend’s partner to become very angry and frustrated. The child who is in fear of her Dad disappearing again is now wondering if she should go and live with Dad so as to anchor him down. Partner got exceedingly angry at this suggestion and said some nasty things about the Dad in front of the child. My friend needs to have a “difficult conversation”.
How might she approach this conversation? On analysis it becomes clear that the partner has an authoritarian style of parenting. This would mirror his experience of parenting growing up and he has little experience of his own other than what he is now acquiring. My friend’s style is more authoritative or democratic. Many parents have different styles of parenting and it is not the end of the world but it does need to be recognized when it occurs. An authoritarian style sees discipline as exceedingly important and the parental word is law. An authoritative style takes account of the child’s wishes and tries to establish dialogue. It is important not to confuse an authoritative style with a permissive style. In the permissive style there is very little discipline and the demarcation lines between parent and child are blurred. That is not the case in authoritative. An authoritative parent is very clear that they are the parent but they are prepared to consult and look for consensus in a way that the authoritarian parent is not.
Once we have established where the tension lies and then looked at the particular problem that has arisen, we can look at how we might have this conversation. First of all, my friend need to remember that her partner was prepared to be a father to her daughter when her real father was not around and as such he played a vital role in helping to restore the child’s self esteem. She also needs to walk a mile in his shoes and understand why he might be feeling hurt and angry when he hears that the child now thinks she should live with her Dad. Then she needs to reflect on what happens to us when we are overwhelmed by emotions. We get flooded. The frontal lobe of our brains shuts down and we react in one of two ways, fight or flight. Literally we can attack or run away. A rational response is not possible for us when we are in that state. It is what a colleague of mine calls the primordial soup and when we are in it, we are not rational beings. A person in this position may use very intemperate language. Clearly, my friend’s partner was flooded and used intemperate language. It is helpful to understand that nature of that response so that my friend can then approach her partner from a compassionate and understanding perspective. This approach will improve the possibilities of having a successful conversation.
Should my friend try and change his style of parenting and move him to her way of thinking? She may have issues with his parenting style but it is a fact that many children grow up successfully in houses where the parents had very different approaches to parenting. What she needs to ensure is that he does not make negative comments about her Father to the child or in front of her. When my friend spoke to me about this she said that if he did not stop this behaviour then she would have to ask him to move out as she could not allow her daughter to be damaged. I was pretty sure if she communicated this to her partner the conversation would not go well. Men, in my experience, do not respond well to ultimata and women tend to be overly fond of them. Apart, however, from gender differences, people as a rule will understand requests as demands if they hear themselves being blamed by the language being used or if they suspect that if they do not comply, they will be punished. Sometimes you do all of the above and the other party still says that they think they were in the right and they are not sure they want to or can comply with what you are requesting. What do you do then? Well what you don’t want to do is challenge their failure to comply with your request because if you do, then they will quite rightly perceive that you were, in fact, making a demand and not a request. So a simple statement like, “Ok, I will leave it with you and perhaps we might talk about it again later in the week when we both have had time to digest this conversation” should suffice or if you are feeling energetic you might go right back to understanding and empathy again. Marshall Rosenberg in his book “Non Violent Communication” says that “Human beings, when hearing any kind of demand, tend to resist because it threatens our autonomy-our strong need for choice”. We all need to reflect very deeply on this statement. If you have conversations with your children which consist of demands and I know I do that myself particularly when I am stressed or in a hurry, their lack of cooperation and useful response may be explained by the fact that instinctively they feel their autonomy is being threatened. And, taking that a step further, if that is an instinctive reaction, then how much time and energy have we wasted and continue to waste on totally useless and frustrating communication? Rosenberg goes even further with this when he says that even when we talk to ourselves in the language of “should” such as “I should have known better” we are already inside ourselves reacting to the “internal tyranny” of the “should”.
In any event, I am not sure that we can ever change anyone else. The only person we can really change is ourselves but I do think if we make an honest attempt to understand another’s point of view then we can reach understandings and accommodations if not outright changes. Once she has truly listened to how he might feel and empathised with it then she might tell him that her daughter’s self esteem is tied up with her relationship with her Father and that when he attacks her Father, he attacks her. She might explain to him that even though her Dad might only spend a short time with his daughter every weekend, that time was worth as much to her daughter as a whole week spent with her Mum no matter how unfair that might seem. And finally she might look to build a fail safe device so that neither of them would fall into the trap of losing their temper around the child again and saying things that they would regret. Approached like this it is likely that her partner, while he might not initially agree, would start to hear her. A fail safe device might be something like “this is a little overwhelming” as a reminder that we are moving into the danger zone. If you can both agree something like that as an alert to each other it is a very useful safety valve for both of you both in parenting and even between each other when one of you may be pushing the other too hard without necessarily realizing or appreciating the effect you are having.
The most important thing to remember when you have to have a difficult conversation is that no matter how well you prepare sometimes things can take an awkward turn and you might find yourself locked into a row without even realising how you got there. So, give yourself a break and try again. It is not a race. These things take time and ,occasionally, you have to take the scenic route a few times before you arrive. When I was learning how to mediate it took me a while to realise that I did not necessarily have to progress nicely along a path ticking off each marker as I passed. It was very nice when a mediation went that way but the markers were essentially teaching and memory devices. You needed to know them and try and make sure you included them in the process as a way of marking progress but conversations are not generally conducted in a linear progression and sometimes the person telling their story needs to tell it more than once so that you sometimes find yourself going around in a circle. This is all perfectly normal. And so it is with difficult conversations, sometimes they won’t go exactly to plan but as long as you and your partner are listening to one another and appreciative of each other, you almost can’t go wrong.

Tuesday, October 19, 2010

Cost of Living

An impending sense of doom lies over us here like a pall as we await the budget. When we went into this recession, we were reasonably confident that we would be out of it by now or thought we would, now we are getting the truly uncomfortable sense that we are in this for the long haul. I have essentially stopped listening to the radio or reading the daily newspapers since I have to simply keep going no matter what. This is very hard for me since my favourite medium is the radio and I would have listened to radio constantly. Sitting with the Newspapers on Saturday and Sunday one of life’s great pleasure, alas now gone. Where is the point in suffering from a mixture of outrage at our politicians, bankers and developers combined with despair at our future and that of our children? Where can I go with the rage, who can I beat up and what will be the point? Everyone that we trusted was on the take or the make in some form or another. Short of a whole new set of people emerging to inject some hope into the future, people of proven standards and integrity, I just drown in a wave of despondency. That we have been ripped off on a wholesale basis I have no doubt and it continues and that there is corruption at every level seems to me to be just a fact but what exactly can I do about it? If I thought my rage and despair would do some good, I would engage actively. So instead of feeling overwhelmed , I choose to exercise optimism and hope in my own personal life. This is a very conscious decision. I use those skills I have written about in my blog to try and maintain an even keel emotionally (I don’t always succeed) and screen out the information that does me no good whatsoever. I am not running away from reality, simply choosing my own reality in so far as that is possible. Of course, I, like everyone else, have to be careful with my finances now and running the business is a white knuckle ride at times. My pension is gone belly up, any investments I have are at rock bottom and I might as well have been flinging the money under the bed. I couldn’t give away my house as nothing is selling and I have resigned myself to the fact that I will probably work till I drop and that is assuming that I can work as the insurance hikes are making it increasingly difficult. I do not mention this because I think that I am suffering more than others, far from it, I know that on the scale of things I am doing ok. I am working, I have a place to live and so far I can pay the bills, just about!
There are a lot of people out there worried about day to day finances and coping with unhappy marriages and relationships at the same time. Certainly, where there is already strain, a poor financial situation can completely unbalance things. There is no doubt that legal costs are a big issue if you are separating. Lawyers in common with everyone else have reduced their costs but going to court is still a very expensive option for any family in these straightened times. The Legal Aid Service is there to help out. It is worth noting that the Legal Aid Service will charge a fee for their service should you get money in your settlement or court order. Many people are not aware of this. Quite often the fees charged by the Legal Aid do not differ a whole lot from that charged by many private solicitors. Most family lawyers charge a first consultation fee particularly in the cities. This is because a first consultation can be very time consuming and difficult both for the professional and the client. Clients very often have little or no idea what to expect and it can take some time to focus and gather oneself. Quite often people are too upset to convey information easily at this meeting or are in great need of reassurance. All of which takes time and skill. Because many people come to lawyers for advise when they are not sure what they are doing or may want to do, many will not necessarily come back having taken a great deal of time and so we find that we have to charge for first consultations. In Cork the majority of family law specialists will charge between €150 and €250 plus vat for that consultation which can often last up to two hours.
Settling your affairs with your spouse/partner is by far and away the most cost effective and logical way to resolve a family dispute. Whether you settle by way of agreement conducted between firms of solicitors, private mediation, collaborative family law or in the courthouse, it is still less expensive financially and emotionally than having a full hearing in front of a judge. The least expensive option is a mediated settlement followed by agreement conducted between firms of solicitors and collaborative family law which on average are pretty much on a par financially though not in any other respect followed by settlement in the courthouse and last and most expensive full hearing. A full blown hearing in the Circuit Court can cost anywhere between €8K and €20K plus VAT plus outlays and any other expenses involved such as valuers, accountants etc. Some cases are more time consuming than others, they involve more correspondence, more phone calls, more consultations, briefs to various experts, interim trips to court leading up to the full hearing which all mounts up costs wise. Again remember that from a lawyer’s perspective, time is money and solicitors are looking at your case from a costs point of view in terms of billable hours. Court cases take a long time to gestate and come to term. This impacts on costs and can be very wearying for the person on the other end. Solicitors start to speak an incomprehensible language about drafting documents, briefing counsel, issuing proceedings, service of proceedings, filing, expediting, Motions, Discovery, Affidavits, Registrar’s courts, rules of court, precedents, settlement talks and hearings. None of this makes any sense to you and on top of that it is all taking an unending amount of time to come to a conclusion. You just want it finished and you don’t want to hear all this mumbo jumbo!! Then after what seems to you like an absolute hellish eternity, they slap you with a large bill for doing stuff most of which you did not understand in the first place and have no idea why it was necessary in any event. Welcome to the world of the adversarial court system! By contrast the world of Alternative Dispute Resolution (ADR) works to your pace, is at pains to speak a language you understand, makes itself as user friendly as possible and all the work being done is conducted in your presence or with your knowledge and you know exactly what you are paying for and how much you will be paying.
Negotiated settlements between solicitors leading to either a Separation Agreement or a court ruling by consent, while less expensive than a full blown hearing and preferable to going to court, are still expensive ,especially, emotionally expensive. The type of negotiation involved in solicitor’s negotiation is distributive bargaining. I wrote about this in my last blog and website posting. It involves looking for the biggest slice of the pie for one’s client and since there is only one pie one person has to take less than the other. This type of bargaining also looks at the pie in a very one dimensional way. It does not ask questions to determine the parties’ real needs so as to see how value might be created. Also distributive bargaining frequently uses gamesmanship, bullying, hiding information and other such tactics to succeed. All of which can leave a bitter taste in the mouth. The correspondence between the solicitors leading up to the court case is often a classic example of this where each party sets out their stall in an attempt to undermine or diminish the other’s confidence or simply to bully them into submission. Accordingly, by the time you arrive at a settlement a lot of unnecessary damage has been done. A Separation Agreement conducted through solicitors negotiating in the traditional way can cost anywhere between €3,500 plus vat and €8,000 plus vat again depending on the amount of correspondence, telephone calls and consultations involved with the client, settlement meetings (if any) and drafts and redrafts of the agreement. A privately mediated agreement will cost around €2000 plus vat per head on average depending on whether you opt for co-mediation, which is what I like to practice, or the more traditional one mediator model which would be somewhat less. A collaborative family law case depending on whether it is full team or just lawyers and clients, will average between €6K and €12K per head. For that you get a tailored custom made solution with a range of experts at your disposal which takes account of the family needs and not just individual members and which is future focussed and not just dealing in the now.
When looking at legal costs it is also worth noting that solicitors do not conduct their work over a few days, it can take months and sometimes years to bring cases to a conclusion. People ask us all the time why our costs are so high and the answer is very straightforward, our overheads are huge. At the moment I am paying professional indemnity insurance and an annual practising certificate fee of around 25% of my turnover. In addition, I pay all the usual business expenses, rent for my office, accountancy fees, office equipment and running costs, business loan and one administrative staff member, public liability etc.

Many solicitors will look for money on account before taking on a court case and that is not at all unusual. That money is offset against your fees at the end of your case and is not additional to the fee charged overall. It is used for office running costs in respect of bills being run up managing your case and while your case is ongoing but also to ensure payment of people retained on your behalf ie, auctioneers, doctors reports, psychologists, accountants, barristers etc. A solicitor retains these people to act on your behalf and is, therefore, liable for their fees. If, however, there is some very good reason why you cannot place any monies on account and you can give reasonable assurance of payment at the outcome of the case, most solicitors will consider your position. Another option which is finding favour now is payment as you go. I tend to favour this as do my clients. It does involve a bit more office administration but it is worth it to keep the clients happy. Generally, clients pay me every 3 or so months bringing themselves up to date so as to avoid having to put a larger sum of money on account and also having a big bill at the end of the case. Talk to your lawyer about costs, be up front and you may be surprised and how well you are understood and what he or she will be prepared to do for you. If your lawyer does not discuss costs with you or fobs you off whenever the subject is raised with platitudes, then alarm bells should go off.

I think many of us are living in some kind of suspension waiting for this to end but we shouldn’t put our lives on hold. Who knows how things will turn out. We need to move on with our lives.

Friday, September 24, 2010

Magic of Negotiation

When I was a small child aged between 6 and 12, my favourite word was “negotiation”. I loved that word with a passion. It was not the meaning that enthralled me, rather the sound. I thrilled to the way you could break it down and roll it around in your mouth. Occasionally, I would lose it briefly and would ask my Father to remind me again of my favourite word. Like the great dad he was and is, he would remember that for me and give it back to me immediately, whereupon I would savour it and hug it to me like a person recovering buried treasure. Sometimes, I would ask the meaning of the word but I would quickly forget the meaning. In time, I also lost the word’s special magic for me. Is it not mysterious then that I should have become a solicitor and even more than that a collaborative lawyer and mediator?
Now the magic is in the meaning of the word and what it signifies. Whenever we hear the word “negotiation” in the context of a war zone or a crisis, we breathe a sigh of relief. Time has been bought, we are back from the brink and the hope of peace beckons. Yet, when we consider marital breakdown, so many of us think only in terms of court, rather than negotiation. We need to reflect on that. Our lives would be unimaginable without negotiation. It informs our every day and all our relationships, business, politics, state and world affairs. There is no part of life on this planet which is not affected by negotiation. It is, therefore, extremely important that we understand the true meaning of this word, various styles of negotiations as well as the many forms it takes.
Negotiation is a dialogue intended to resolve disputes, a bargaining tool to gain advantage, a mechanism to produce an agreement, a blueprint for action or a process to craft outcomes. It can be all of the above or just some of the above. When we think about negotiation most of us think in terms of two opposite sides jockeying for advantage. As a lawyer, I would generally think of negotiation in terms of one side looking for a bigger slice of the pie over the other i.e., hard line bargaining. We refer to that as distributive or adversarial bargaining and it is generally the way that solicitors and barristers negotiate. Like everything, it has its place and is a very useful tool at times but that is all it is, a tool. Like most tools, it is ill suited to certain circumstances, people and situations. Many of us understand negotiation only in terms of distributive bargaining and are not aware of any other method of negotiation. There are many different ways and styles of negotiation. Another approach to that of distributive bargaining with which we are probably familiar, might be to hammer out an arrangement in the best interests of the parties i.e. take a more holistic approach and look on agreements from the point of view of creating optimum gain rather than maximum gain.
In many countries ordinary people are master negotiators though they may have little theory informing their practice. Generally, they are masters of distributive bargaining. I am thinking, for example, of many Arabic , Indian and Asian cultures where bargaining is a way of life. We are all pretty familiar with this way of bargaining and most of us tend to try and conduct our relationships in a distributive bargaining way. We may employ various strategies to that end but essentially we are jockeying for advantage either in our employment or at home. Distributive or adversarial bargaining is generally ill-suited as a resolution tool for personal relationships. Perhaps it is more than time that we import a more creative theory of negotiation into our everyday lives especially when dealing with relationships. How might we do this?
We might start by looking at problems as opportunities i.e., opportunities to create. We might, accordingly, agree to only accept creative outcomes for any problem, situation, circumstance or crisis. To do that we must exercise understanding. We must spend time understanding the nature of the problem in all its myriad detail and we must take time to understand ourselves as we approach this problem. What emotional baggage are we bringing to this, how is our personality informing this situation? Emotion enters into the negotiation process in a number of ways. For example, whether or not we like the person with whom we are in dialogue, what baggage we are bringing into the discussion on a particular day, for example, a stressful family or business interaction prior to the negotiation will affect the way we conduct the negotiation. Unintentional emotional triggers arising during the negotiation will also impact severely on us and unless we have a degree of self awareness such triggers will adversely affect the discussions and we will be none the wiser as to what exactly happened. Being sensitive to our own emotional baggage is very important but being sensitive to that of the other person/s is also vital. If we are paying close attention we can pick that up as we go along and doing some research prior to the negotiation may also help us to be aware of issues that might arise. Understanding the other person means a great deal of listening, clarificatory questions and feedback. Our own negative emotions can cloud our ability to hear and to be creative as well as colouring our attitude to outcomes. Positive emotions can make us confident and insightful creating more likelihood of positive outcomes. Knowing all this, could we possibly conduct negotiations ourselves for ourselves? I believe we can and some do. Some of us have a natural ability in this area but it is important for all of us to understand that with awareness and understanding all of us can learn how to do this. We need to learn how to do it and in small ways, we can practice it easily and occasionally bring it off by, for example, using relationship issues such as “who does the cooking” as an opportunity for practising such techniques. However, when it comes to major issues like separation or marital breakdown, our emotional baggage may not be so easily overcome so as to enable us to dialogue effectively. We might at that point seek the help of a mediator or a collaborative lawyer to assist us in doing this work.
When we negotiate with someone close to us, it is helpful to think carefully about the person we are negotiating with and not just concentrate on the issues to be discussed. What I am about to say is not the rambling of a tree hugger but rather a very carefully thought out way of helping us to get into the right frame of mind to negotiate. In order to enable us to be open to that person we might focus on gestures or actions that we can look back on in our relationship with that person for which we are thankful. In that mood of thankfulness we might then reflect on our overall goal in the coming negotiation. Without the capacity to extend gestures to the other and without the capacity to appreciate gestures from them, successful negotiation, particularly when it concerns relationship issues, will be well nigh impossible. When we reflect on our overall goal we can then think about how we are going to approach matters or another way of putting this would be that we can strategise. In the mindset of thankfulness and bearing in mind the overall goal, we can look at the issues from the perspective of trade off and/or creating value. We walk a mile in the other person’s shoes and we ask ourselves what will they value, what is important to them and this enables us explore the various options available to us. Then we need to reflect on what is important to us. Only then are we ready to commence the negotiation. Remember that in this context we may call the negotiation, a conversation, such as “I have to talk to John about that” knowing full well that John will be running a mile from that conversation, however, it is, in fact, still a negotiation. If you can combine the above with a nice musing tone, and you need to practice this, plenty of questions and genuine openness, you are on a winner. It is not as easy as it sounds but it is not impossible either and the essentials are the same in any negotiation. Getting into the right frame of mind is three quarters of the way. If we commence negotiations from places of fear and anger then we have no hope of achieving solutions.

The advantage of mediators and collaborators is that they can do all of the above so much more easily because they have no personal stake in the outcome. It is the personal stuff that makes it hard and that is why few of us can manage negotiation for ourselves. Essentially, however, what I have described above is the process of mediation or negotiation and it is also the bones of a collaborative negotiation which is what collaborative family law is all about. When people think about the word “negotiation” they think of something which is almost magical. Secluded armed gun men are talked out into the open and contained by the process of negotiation. Suicides are talked down from the brink, hostages are released, centuries of intransigence are overcome. No wonder I was delighted by that word as a small girl. Did I sense the power of negotiation? Who knows but I know that I also wanted to be a magician. There is a connection between the two. Now I am working with the magic myself.

Tuesday, September 7, 2010

Happy Employees - dedicated workers

It seems obvious to me that employers, particularly those in large companies, should invest in the health and wellbeing of their staff. The most valuable asset a company has is its staff. Employees are the backbone of the company. Many employers spend years putting together the right team and then invest very little time and energy in nurturing that resource. Everyone recognizes that employee morale is key to the productivity of a company but most employers do little to encourage morale. Even in good times, this is quite often the case so in these recessionary times it is even more likely to be so. I am not talking about office picnics, survival weekends and Christmas parties. These events cost a lot of money and I am not sure they yield much satisfaction to either employer or employee. Who actually likes these events? Is there anything more distressing than watching people with whom you would not normally socialise, getting drunk and making idiots of themselves and that is always assuming that it is not me making the fool of myself which is truly the most awful thought of all. Everyone seems to suffer from nerves of one sort or another on these occasions which makes one either drink too much and decide to tell a colleague the truth about something or make a pass at someone wildly inappropriate. Even if you don’t drink at all you can’t win as you will be perceived as uptight or a snob or worse. Survival weekends – don’t get me started on those! Are there ways that employers can look after their employee’s health and wellbeing without costing an arm and a leg and without engaging in enforced jollification?
One life event which many employees go through and which will impact on their productivity severely is marital breakdown. Personal or family health issues, death of family members, financial stresses, child issues and moving house are among the other predictable life issues which will occur. Employers can offer help and guidance in all of these situations without prying unduly and without taking over someone’s decision making capacities. By having information days and/or evenings for employees in general which deal with all of the above, employers demonstrate a commitment to the wellbeing of their staff. There are a number of ways that information can be packaged and delivered to staff depending on the company circumstances. One is to have an information evening once a month where different topics are scheduled enabling staff to hear about a number of important issues that will arise for them or their colleagues at some point in their working lives. Such meetings can be scheduled for lunch time or for early evening. Another way is to ensure that HR staff are fully conversant with all of the issues and research and have all the information to hand that staff may require. If there is an in house magazine or news letter then a series of articles on various topics in an informed way might be another way of getting information out there. Costs can be kept to a minimum and platforms can be shared by a number of professionals from different firms and backgrounds ensuring that it is about information and not advertising.
Divorce is ranked as the second most stressful event that a person can experience in their lifetime, second only to the death of a spouse. Divorce rates, not too surprisingly, tend to be at their highest in populated areas. Since industries and large employers tend to situate themselves in populated areas, the issue of marital breakdown is one that should concern employers. As well as the, understandable, trauma of the person experiencing the divorce first hand, it is important to reflect on the fact that divorce will impact on everyone who comes within its radius. For example, it is important to be aware that the effects of divorce-related stress are multiplied in the employee by the echo of that stress in his/her children and extended family. Also, of course, as well as an employee going through a separation/divorce, the children of divorcing parents can also be employees as can extended family all of whom will be affected. The effects of divorce as well as short term productivity impairment can also be long term depression , poor health, and in some cases suicide or premature death. In addition, employers need to be aware from a health and safety point of view as well as just staff care, of the increased risk of substance abuse before, during and after divorce. Some studies suggest that men are more detrimentally affected by divorce than women. My own experience as a family law specialist dealing over the years with men and women would be that women go through the emotional trauma of the separation while they are going through it legally and financially and that men defer the emotional aspects of it. Generally, I think men are better are compartmentalising emotional matters than women. I cannot offer an explanation for this but men seem to be able to shut things off more effectively. Over the years I have noticed this. I have often envied this capacity. However, I think, that like everything it has a good and bad side. By allowing their feelings to be part of the process of separating and divorcing women deal with their emotions at a time when their friends and family are available to help them process. Men, on the other hand, bottle up their feelings and get on with the business on hand. It is only after the event, sometimes years after the event, that the emotions will surface. Generally, because men are not used to discussing emotional or personal matters they will find it extremely difficult to enter into conversation about their circumstances with their friends. This difficulty is compounded by the fact that for people outside the situation it will be yesterday’s event and will not be present to their consciousness. Therefore, it is my experience and one that seems to be borne out by the studies, that men continue to bottle up their emotions until they result in ill health or depression. In the studies I have read, it is argued that the reason why men do worse than women in separation is the difference in how men and women interact in society. Male friendships tend to be about someone to hang around with and women’s friendships tend to be about sharing feelings. In Irish society, man men, in particular, will base their social interactions around their marriage that is socialising with other couples mostly at the instigation of their wives. As a result, when the marriage breaks down, men not only lose the company of their wives, they will also quite often lose practically their whole social network. In tandem with this, women will most often have custody of the children after the marriage breaks down so men lose their role within the family and quite often they have to completely alter the way they interact with their children as well. When you combine all this, your average divorced man is a pretty lonely, confused figure. Employers need to be very aware of all this as do work mates and indeed people experiencing divorce themselves first hand.
But apart from how recent research and experience can assist employers in dealing with employees compassionately, information can also be given to the employees to assist them in dealing with the reality of separation and divorce. I have found that being able to educate parents in what to expect from their children depending on their ages and what to watch out for is enormously helpful to them. Tips on parenting post separation are also hugely helpful to parents trying to cope with child issues arising and their own trauma at the same time. General talks on solicitors, who we are, what we do, what to expect and not to expect, what is the nature of your relationship with your solicitor and so forth are all very useful for people in sorting through that first very confused and confusing stage of marital breakdown. Talks on the different legal options available for couples separating can also be very informative and enlightening. There are now four distinct ways to deal with separation, separation by agreement but under the adversarial system, separation by collaboration, separation by mediation and separation by application to court. There are also some hybrids of these. Finding the right way for you is crucial and then matching that up with the right professional/s is a further skill and there is plenty of help to guide people in that.

Thursday, August 12, 2010

As time moves on

In the early 1990s, which heralded in the modern approach to family law in Ireland, it was commonplace for a wife to be allowed to remain in the family home, particularly while the children were young and for the property then to be sold at some point in the future. Many spouses reluctant to even contemplate moving from the family home in the face of so much upheaval, mental and physical, would seize on this option with both hands. I loathed those orders because I felt that they simply postponed the evil day. Would your average wife in her mid to late 30s raising a young family be any happier selling the house in 10 years time? Would she feel any less short changed or deprived? I doubted she would and for my money she might feel even more so that having raised her family, she was now faced with the extremely stressful scenario of moving house and very possibly location. By contrast her husband would have long since moved on and will view the impending sale as a windfall. I also felt such orders kept the wife imprisoned within the confines of the marriage, psychologically and sometimes in fact physically, with none of the advantages of the marriage. I had the same view of spousal support. Many women separating would not look for work or go to work because it would mean that they would lose the option of spousal support. Long term the person most damaged by this was the seemingly supported wife. She remained a dependent of the marriage and effectively tied to her husband but enjoyed none of the advantages of marriage. Her situation was economically precarious for if her husband decided to have a second family then the children of that relationship would almost certainly take priority over her. More fundamentally however, she never in fact, mentally, left the marriage.
Another common enough feature of those days was getting the house transferred into the wife’s sole name. This would give rise to a lot of bitterness unless there was a significant asset base. Eventually, however, with time, experience and some policy decisions (precedents) on these matters, it became extremely rare for the house to be taken off one spouse and given to another unless by agreement or in exchange for being bought out. For a woman to buy out a man she generally had to be able to get a loan and this in turn meant that women had to work outside the home in the majority of such cases.
Children generally resided with Mum and saw Dad periodically. It was very rare for Dads to get sole custody and access was parcelled out like hen’s teeth. Joint custody was rare. Most women fought like tigers to get sole custody of their children and the idea of shared parenting post separation was very uncommon . If you suggested to a woman that it was more in her long term interests and those of her children to concede equal parenting time and responsibility to the Dad she would have thought you were working against her interests. Everything was approached on the basis of sides. That is essentially what the adversarial system is all about. As we moved into the boom, it became commonplace for the family home to be sold. This was for a number of reasons, women were working and so could get mortgages in their own right, it was perceived as unfair that a man who may have been the principal earner in a marriage would walk away with nothing to start again. Increasingly, it was regarded as important that the children would see their Fathers living in reasonable surroundings. As more and more Fathers sought overnight access, it was clear that they would have to have a reasonable standard of accommodation. Now, in the middle or height of a recession (who knows?) property is not selling and what does sell sometimes will not clear the mortgage or will clear it but not leave enough to buy on. The impact of this on the orders being made is only being assessed and its long term effects are unknown.
Maybe we now have to go back to the unfortunate agreement or order to sell at a future date. However, we may do so but for entirely new reason. Indeed, more and more of the settlements I am entering into these days have that ingredient but unlike the 90s, sometimes, it is now the husband who is remaining in the family home and the wife moving on. Economic changes in the employment prospects for women during the boom have effectively given many women a wider range of options. Now more women are moving out of the home than ever before. This is particularly the case if the children are largely grown. As a result, the option to sell at some future date is made largely in the hopes of a property market rally than because of a fear of moving on after the marriage. Such decisions can be viewed by the couple as making economic sense and tend to be accepted with good grace by both parties.
Spousal support, in my experience, is largely a thing of the past except in some limited circumstances and while Judges don’t normally articulate that a woman should look for a job, their judgements make it a reality. Recently, I have started to settle cases on the basis of a built in period of support post separation to enable a wife who wishes to work but has not been doing so for a while to get back into the market without any undue economic hardship. This period could also allow a spouse to retrain or engage in a long deferred educational pursuit. Such periods could be for one year or several but they are of their nature of a limited duration. It is my experience that a husband in such circumstances will not resent the payment in anything like the same degree as an open ended payment. When considering such settlements it is important to take into account that spousal support is taxable in the hands of the spouse whereas the person paying gets relief on the payment. It is often built into such agreements that the paying spouse will not seek to reduce the spousal support during this period on the basis of the other spouse’s earnings alone. This enables a dependent or semi-dependent spouse to get on his/her feet without incurring a penalty and further acts as an incentive to earn. Frequently, we look on the 4 year qualification period between separation and divorce as onerous and unnecessary, however, we could look at that period as a hiatus period enabling us to plan effectively for the divorce. I know that is not what the legislators intended and it was meant as a deterrent to leaving our marriages rather than a planning period to exit more efficiently.
As courts get used to dealing with marital breakdown and as it becomes a reality that everyone knows someone who has a divorce or separation, then the way we manage these cases as a nation changes. Our increasing mobility as a nation affects this situation also. The option is now there for many people to get a divorce in another jurisdiction where the rules or practice might suit their purposes a little better. This is something we need to keep constantly in mind when dealing with such matters. Since Separation and Divorce were legalised the face of Ireland has changed and we are no longer the wall to wall Caucasian nation we once were and this has impacted on our cultural attitudes which in turn affects our approach to such matters.
Child support is, of course, another matter entirely. Both spouses are expected to contribute to the best of their ability for the support and upkeep of their children. Such contributions are generally estimated in line with a person’s earnings. The more you earn, the more you will be expected to contribute. Child support is not taxable in the hands of the person receiving it. Equally it is not tax deductable in the hands of the person paying. Unlike the concept of spousal support which has connotations of “foreverness” and can, accordingly, bring on a panic attack, child support has a identifiable time frame which continues up to 23 if the child is in full time education or after they complete secondary and start to work. Most parents do not resent contributing to their children’s upbringing but it is still amazing the number who have visions of their spouse having a whale of a time on the child support! Whether this is just paranoia or simply a lack of understanding as to how wonderful children are at spending all your money, I don’t know.
Joint custody is now the norm in family law cases. This does not mean that the children’s time is divided in two and each parent is given precisely half. Children have to go to school, see their friends, play matches, engage in activities, do homework, spend time with grandparents and so forth and in short be allowed to have a life. Cooperating parents can generally manage to ensure that they see both parents and still get to do those things and it obviously helps that the parents live reasonably close to one another to enable such cooperation. However, parents who live in different counties or at good distances from one another will not be able to manage these things so easily but again with open mindedness problems can be solved. We now know that it is damaging to children and their development if they do not have a proper and healthy relationship with both parents post separation or divorce. Courts have completely absorbed this message and with very few exceptions will award joint custody and give as much access as possible and practical to the non residential parent. It is still a balancing act though between the children’s needs and the parental circumstances. Judges have a limited time to go into this in any depth. Judges don’t know your children and will not meet them. It makes absolutely no sense to place such matters in the hands of a Judge and no one would be quicker to acknowledge this than an experienced family law Judge. A properly worked out parenting plan can save acres of heartache and frustration later for both you and your children. It is a fact that children love to know what is happening from week to week and will work well with carefully planned access schedules.
In the early 90s if there were child issues it was the norm to have the children assessed by a child psychologist who would then report to the court and make recommendations. While this still happens, we are less inclined to rush into this now as a “cure all”. We have learned in the intervening years how invasive such examinations can be for many children and we move at a much slower pace into this arena. Children don’t want to be asked their views on where they should live or how often they want to see the other parent. It is unfair and unreasonable to ask children to comment on such matters. Children invariably love both parents. Of course children do have views and concerns and these should be listened to but they should not be asked to make decisions that are outside their competency as children. In the past, it was commonplace for children to be asked such questions and for those views to be passed to the Judge who was, naturally influenced by them not to mention the unspeakable agony caused to the parent who had to read and listen to those views expressed in this manner. The practice was nothing short of barbaric and one can only imagine how such children must have suffered when and if they realised how their views had been reported and the effect that they had. There are still situations where the intervention of a child psychologist is required and in fairness most child psychologists have also got stronger in their approach to the courts now and will not allow themselves to be manipulated into the old style reports quite so easily. As time moves on we all gain experience and insight, professionals and public alike. Now we are aware that an experienced mediator will help us in most cases to deal with all but the most intractable of parenting plans and issues.

Friday, July 23, 2010

Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

Even the title of this Act is cumbersome and ill-conceived! I am trying to work out where I stand on this piece of legislation. I have no issues whatsoever with the sentiments behind this Act, on the contrary, looked at from one perspective it does not go far enough and frankly, even within its own terms it is not carefully thought through and will give rise to unnecessary litigation. This piece of legislation is well motivated and that makes it difficult to take a stand against it. I am essentially a liberal myself and, therefore, one of those well motivated people or just another namby pamby if you are at the other end of the spectrum. Essentially, though, I think that this legislation is misguided. Why should gay couples have separate legislation and separate arrangements? Why not treat them the same as all other couples? It is my view that same sex couples should be permitted to marry if they wish. It is ludicrous to suggest that society would be damaged by this, what on earth could be damaging about committed love relationships whatever their origin? And after careful consideration, I think opposite sex co-habiting unmarried couples should only start to have financial responsibilities to each other when they have children. I know there are arguments about people being together for 30 years and all of that but people have to be allowed some areas of personal freedom and responsibility. It is going to come as a shock to quite a few people when they discover that there are potential legal implications of a serious nature attaching to their cohabiting relationships and especially that potential obligations kick in quite quickly in the scheme of things. I am fairly sure that the vast majority of opposite sex co-habiting couples likely to be affected by this legislation have little or no notion of its impact. Correspondingly, I would imagine most gay couples are well schooled in the provisions of the act in so far as it affects them through their various organisations and because to some extent many gay people have been campaigning around these issues for many years now. I know of no campaign to regularise the affairs of unmarried cohabiting couples. It is unlikely that co-habiting couples being a disparate group will receive organisational information. The fact that the legislation allows for an “opt out” clause is probably going to escape the attention of many until it is too late.

I wrote previously about this piece of legislation when it was still a bill and that article is still accessible on my older posts. I made some criticism of provisions in the bill at that stage or lack of them. In particular, I criticised the fact that children residing with same sex couples for whatever reason were not protected by the legislation. This is a glaring omission and one which, in my opinion, is calculated to give rise to great hardship for those who are most vulnerable in our communities.

It was argued during the passage of this bill into legislation that the two parts of this act, namely, that part dealing with same sex relationships and that part dealing with opposite sex relationships, should be separated and treated under separate pieces of legislation. I agree with that submission. Regrettably, it was not picked up. Because gay and lesbian partnerships and opposite sex co-habiting couples were dealt with in the same piece of legislation, no proper thought or debate was given to the separate problems that each circumstance essentially presents. After all, opposite sex couples can marry if they wish and with divorce available, there is little reason of a compelling nature as to why they should do so if they are so minded. If they are not so minded, why are we forcing obligations on them, that the nature of their relationship suggests they do not want. Why don’t we have an “opt in” clause rather than an “opt out” clause for cohabiting opposite sex couples who want to have rights against each other in certain circumstances. Gay and lesbian couples are in a different situation as they cannot marry under current regulations and accordingly, the lack of rights accruing in their particular relationships can give rise to injustices of a severe nature.

From a gay and lesbian perspective, the Act creates a new legal relationship of civil partnership for same sex couples who choose to register their relationship. That relationship then ends only on the death of a partner or dissolution by a court of the partnership. Once the relationship is created, the Act sets out various provisions that may be availed of by the couple should the need arise. They are discussed in more detail in my previous article and they encompass property, financial provisions and other rights and entitlements consequent on civil partnership to include provision for maintenance, protection of shared homes, inheritance entitlements and pension provisions. Similarly to separation and divorce, the orders that may be made will depend on the circumstances of each particular case and what constitutes “proper provision in all the circumstances of that case. As in divorce legislation, the Act precludes “clean break” settlements. In my view, that is a mistake and I believe that there should be provision for clean break settlements just as I believe that facility should be available in marital breakdown which it currently is not. As well as being silent on the issue of children residing with and dependent on same sex couples, the Act is also silent on the tax and social welfare treatment of such couples.

For cohabiting opposite sex couples, as well as cohabiting same sex couples, who are unmarried or unregistered, the Act will impose certain rights and obligations upon those individuals unless the couple specifically choose to opt out of these protections. Choosing to “opt out” may in the first instance presuppose that such couples are aware of these issues and secondly, it may involve the expense of consulting with a solicitor in order to understand what exactly you are “opting out “of and how you go about doing just that. I personally think “opting in” is a much fairer way of doing things as people who are concerned about these matters tend to find out their situation and will willingly incur the expense to be protected. The provisions enabling the court to make certain redress, and/or provide a safety net for cohabiting couples, in order to protect an economically dependent or vulnerable party are not as extensive as the reliefs currently available to spouses and now to civil partners. They, nonetheless, mark a significant change in the current legal position. The fact that these reliefs are discretionary ie the Judge will decide what is appropriate rather than automatic, may afford some consolation though not much I should think. Those cohabitants who have resided together for 5 years come within the provisions of the Act and two years if they have children. The Act also defines what constitutes cohabitation for the purpose of the Act and recognizes officially, Cohabitant Agreements. This means that co-habiting couples can regulate their own joint financial affairs and they can specifically opt out of the redress scheme if they so wish. Provided both cohabitants have the benefit of independent legal advice then the court will consider such Agreements to be valid and enforceable.

I have come across references in many blogs and articles that many of these provisions enabling people to “opt out” and so forth are “ unromantic”. I have already expressed my reservations about the legislation and my reason but I have little sympathy with the “romance” perspective. There is not much romance either in the divorce court. Just as it is important for couples getting married to try and get a handle on each other’s attitude to children, money, property, family, friends, loyalty, faithfulness and work to name but a few things, so too must all other couples have some understanding of each other or frequently pay a very high price. Such conversations can be used to deepen rather than weaken the relationship if they are properly handled. Collaboration offers such an opportunity as it enables delicate conversations to take place by structuring the choreography of the conversation, ensuring that the conversation takes place face to face even though each party is personally represented at the table and that it is handled by trained collaborative lawyers and mediators.

Monday, May 31, 2010

Collaborate? Or Not Collaborate ...

The collaborative model, particularly the full interdisciplinary model, is such a fantastic way for families to handle themselves in separation or divorce that it amazes me that disputing couples in Ireland are not breaking down the doors of collaborative professionals to find out more about this. There are many reasons for this, I suspect, among them, the large number of people who think it is too good to be true, it flies in the face of human nature, people want the row and all that sort of rubbish. Of course, there will always be some who want the row, no doubt about that, but the vast majority of people who come in the door of my office will identify to me in that all important preliminary consultation that they are not out for blood and that they want to be fair and civilised. However, it seems to me that a much more formidable hurdle for collaboration to overcome in Ireland is the recent nature of our divorce jurisdiction and indeed, the relatively recent nature of our separation jurisdiction. People forget that in Ireland we have only had legislation allowing for judicial separation since 1987 and divorce since 1997. Compared with Britain, Europe and the States that is very new indeed. The other relevant factor, I think, is that our family courts are held “In camera” ie, in private which seems like a blessing, and is in some ways, but it does mean that people for the most part do not know what goes on in courts unlike other countries where there is routine press reporting. The “in camera” rule has the unintended effect of preventing the community becoming knowledgeable about what happens in family court and the recent nature of our divorce jurisdiction has not yet percolated into a large anecdotal body of knowledge within families of just how bad things can get. Maybe as the recession bites deeper people will start to look at the alternatives.They could do an awful lot worse than look at the alternatives of collaboration and mediation.

Wednesday, May 12, 2010

Sudden loss of Gerry Ryan..

For many of us Gerry Ryan was part of our daily lives. His death more than anything else emphasises the fragility of our grasp on life. Over the past couple of weeks there has been saturation coverage of this sad, but hardly unusual event, to a somewhat over the top degree. I am conscious of not wishing to add to that. However, I do wish to thank Gerry Ryan and his family for being the living embodiment of all that I have spoken about in my articles and on my blog.
When Gerry and his wife of many years, Morah separated they did so with a great deal of dignity which was striking at the time. Neither of them became the subject of tabloid gossip. They made a quiet announcement and no one was any the wiser as to the cause or otherwise of their split, just that it had happened. Of course, we were all bursting with curiousity, I was no exception,as is always the case with celebrities, but Gerry and Morah managed to keep the whole sad business private and within the domain of their own family and perhaps close confidantes. That is some feat in a country as small as Ireland. Gerry had spent all those years talking about “Mrs Ryan” on the airwaves so that we all felt we knew her rather more intimately than I gather she liked or wanted though she seemed good humoured about it. It was quite clear that he loved her and was devoted to his children. Bearing that in mind, the separation must have hit his family hard but they kept their counsel and their dignity.
After he left the family, Gerry started a new relationship. He appears with Morah to have managed this with great delicacy to a point where after his death, his children visited with his girlfriend, Melanie, for lunch and she was subsequently welcomed into the family home for his wake. Everyone behaved with impeccable decency and it is to their great credit. Many were also struck by Morah’s mention of Melanie in her tribute to Gerry at his funeral.
It is precisely this dignity and civility that we are striving for in the collaboration process. Everyone wants their children to come through the process of separation and divorce without any long term damage. We know that heightened conflict has disastrous effects on the long term well being of children. We also know that heightened conflict will make future co-operative parenting nearly impossible and that like it or not the children will be caught in the middle. Therefore, if we want our children to come through the separation undamaged we have to choose a process that has some hope of delivering that result. The collaborative process emphasises the importance of communication between the couple going forward. Uniquely the process utilises the services of communication specialists or collaborative coaches who have a two- fold role. They help to re-establish good communication to enable co-parenting now and going forward and they help to balance the emotions so that each party is empowered sufficiently to deal with the decisions, financial and otherwise that need to be made in order to move forward. When parents are wrapped up in their own emotions, as they will quite naturally be, during the painful process of separation, the children’s emotional needs can often be overlooked. Quite often parents are not even aware that this is happening. In the collaborative process we employ the services of a child specialist who is a neutral, that is not aligned to any particular parent, and whose function it is to deliver the voice of the children into the process and to assist the parents by providing appropriate developmental education. The child specialist can also help the parents and the collaborative coaches when requested to formulate a parenting plan. The process is all about moving forward and no one is there to apportion blame or judgement.
I have been blathering on about this way of working and what it has to offer for some time however, many people have told me that it is too difficult or simply pie in the sky. Those who engage with this way of working often find it tough going. That is not to say that going to court is any easier, it is not but when you “do the right thing” you sometimes have a feeling of entitlement. Nothing works like a real life example. Now I can point to Gerry and Morah and say “See, it is not impossible. It may be difficult but it is not impossible.” Thank you Ryan family most sincerely on behalf of the collaborative process in Ireland!*

• Nothing in the above should be taken to mean that I believe that Gerry and Morah separated collaboratively. I don’t know how Gerry and Morah separated nor is that my point.

Friday, April 23, 2010

The place of grandparents in family breakups.

When parents are locked in dispute and/or separating the support of extended family can provide enormous comfort to the children and support for the parents. Grandparents, in particular, can be a great resource in this situation especially for children who are close to them. Children caught in parental conflict can be extremely disturbed by the withdrawal of their parents from them. This can happen simply because the parents are locked in their own misery and cannot see beyond it. From the child’s point of view this can sometimes mean that not only do they lose a parent to some extent when that parent moves out but the other parent may be so preoccupied in their own emotional trauma that they are virtually lost to the child as well. Often the parents themselves have no conscious awareness of this and can be overcome with guilt in later years when they realise that is what happened. Parents who are aware that this is a possibility can put in place certain safeguards such as the support and help of valued extended family to bring the children safely through this period.
For grandparents to be truly effective in such circumstances, it is important that they do not lock themselves into the conflict on one side or the other. This is difficult but not impossible. The reality is that the less invested they are in the marital or relationship breakdown the more likely it is that their role as grandparents will continue uninterrupted. Support does not have to involve taking sides. It is amazing the number of people, particularly women, who comment to me that they never so much as received a call from the partner’s parents to ask how they were doing or to enquire about taking out the children or otherwise. The hurt that this causes , especially where there has been a long relationship, is immense. A simple phone call of enquiry and support does not amount to betrayal of the other party and is a long term investment in the welfare of grandchildren.
Many grandparents lose contact with their grandchildren as a result of separation and divorce. This does not need to happen. Grandparents have the right to go to court and seek contact with their grandchildren if they are not being allowed to see them. However, going to court to assert their rights as grandparents is an answer but not necessarily the best one. Sometimes, it may be the only option but mostly, that is not the case. If you have to go to court relations are most likely broken down with the custodial parent and any future relationships are going to be too strained for any except the most determined grandparents to sustain. Fights about children can be the most bitter and poignant all at the same time and tear everyone apart. Far better if you are a family member or grandparent to think carefully before getting stuck into the row and that is so whether you are the grandparent of the custodial parent or the non-custodial parent. Parents reconcile and if you have gone in for one side over the other, guess who will wind up losing? Sometimes, children vote with their feet and change where they live, sometimes courts make different orders than the ones originally made, sometimes people move away or decide to return to work or study and either share or change custody. All or any of the above could wrong foot you. Apart from those realities though there is the reality that all relationships if they are to be of any use are founded on trust and once lost it is very hard to regain. If you take a side you will lose the trust of the other parent. Realising how important trust is you should encourage everyone to try and resolve their issues with dignity and fairness and lead by example. Remember, the children won’t know why you have stopped calling or visiting or remembering their special occasions, they will just feel the gap in their lives and the attendant hurt. Think what you can do to help, focus on how you can be of use and concentrate on the most vulnerable people in a family breakup, the children. Doing this will keep you on the right side of everyone and don’t leave it too long to offer to help!

Monday, March 29, 2010

Horses for Courses.

Who are the people in our communities engaged with matrimonial breakdown? In general it is the therapist/counsellor and the lawyer. In Ireland, the lawyer is still the first port of call for the person in trouble and in Ireland, while we are suspicious of lawyers as a breed just as in other countries, we tend to trust our own lawyer. In Ireland, we are also wary of the whole therapy thing seeing it as an import from America and only for people who are a little mad which we certainly are not.
Lawyers and Therapists are, therefore, the people in our communities who have training and experience in family breakdown and who are the custodians of a great deal of knowledge in this area. Is it not, therefore, blindingly obvious that the public would be better served at this crisis point if both professions were to combine their knowledge and experience? Would that be possible and if it was how would it work? Would these two groups be able to talk to one another? With the goal in mind of combining our knowledge and experience lawyers and a variety of mental health professionals (psychologists, therapists, counsellors, psychotherapists, and mediators) attended a training led by Dr. Susan Gamache from Vancouver, Canada in Dublin recently. One of our first tasks was to overcome what each group thought about the other because such assumptions tend to blind us to possibilities.
The Therapists thought that the lawyers were task driven, aggressive, obsessive, money orientated and arrogant and the lawyers thought that the therapists were airy fairy, tree hugging, vegetarian yogis. The purpose of the three day training was to dismantle these assumptions and to provide both groups with a new language that would enable them to communicate with one another. That first exercise – what we each thought about the other – caused much laughter and broke down some barriers. Over the remaining days, we worked together so that we could supply the professional members of the collaborative team and having done so that we had a common language and goals enabling us to gel together as a team.
The collaborative process is extremely flexible. On one end of the scale, it allows lawyers and clients to work together to find solutions outside of the court system. In the middle of the scale, it allows for coaches (mental health professionals are called coaches in collaboration) to be brought into the process as needs be and the clients will work with those coaches to assist their communication and to manage emotions enabling them to work more effectively with the lawyers. Similarly in this model, financial specialists, or child specialists can be referred to when necessary. On the further end of the scale, all professionals work together at the same time to deliver resolutions to a family in crisis. It was to enable us to work in the middle to the end of the scale that we attended the training.
Different clients will have different needs and all three models are viable ways of working. The full team way of working is, however, very exciting in its possibilities for families. First of all, it enables us to work with families whose communication dynamic is very fractured or where there are some serious difficulties. Such family situations would be very difficult to manage with just lawyers and clients as lawyers are not therapists and will find it extremely difficult to manage highly charged emotions. They may unwittingly inflame them rather than dampen. Where there is a large amount of suspicion and positioning between the couple bringing everyone into the room and doing all the work together enables everyone to see what is happening at the same time and reduces the possibilities of misunderstandings. When a range of people work together sharing a common language, (the language of collaboration) and common goals, a synergy comes into play which inspires a kind of creativity that is not available in any other way of working, in short the team is greater than the sum of its parts. Finall, when a team works together from their diverse professional backgrounds they demonstrate communication at its most effective and this is enormously empowering for the couple in transition.
The team model allows lawyers to offer collaboration to a broader range of clients than we might otherwise feel competent to do. And even though having a full team complement is going to prove more expensive than say lawyers and clients working together, it is still more cost effective than going to court and that includes financial as well as emotional costs.

Tuesday, March 23, 2010

Taking the War Out of Our Words by Sharon Strand Ellison: A Review.

We say that we won’t allow words to hurt us and yet they hurt us all the time. Sharon Strand Ellison in her book Taking the War out of our Words says “I was appalled by the amount of needless conflict and pain in people’s lives”. This was the motivation for her to write this book. In doing so she offers us a new way for people to talk to one another and she calls that Powerful Non-Defensive Communication (PNDC). The first one third of the book is devoted to an exploration of how we actually speak to one another. Her thesis is that we communicate on what she calls a War Model. She maintains that most if not all of our communication is on this footing and this is the explanation for all the conflict we have in our lives.
Sharon believes that we operate from a position of Defensiveness because we believe that we need to protect ourselves all the time even from our friends and family. Our defensiveness is our way of protecting ourselves. We believe that to be open is to show vulnerability and to show vulnerability is to be weak. Sharon identifies this as our War Model of Communication. She maintains that this mode of communication is virtually global. All our communication with few exceptions is modelled on War ie attack, defend, retreat, protect, counter attack and so forth. She proposes a new model namely PNDC. In proposing this she says that she believes that we have the capacity for phenomenal change as beings and in that regard she comments on our Technological Advancements. The question she then poses is do we have the wisdom to contain the destructive potential of our technology? She believes as the says in her introduction that learning to communicate non-defensively is our next evolutionary step, an essential key to our survival.
Her book is peppered with anecdotes and powerful examples of how we might change conversations that we frequently have. She identifies 3 forms of communication
1. Questions
2. Statements
3. Predictions.
Sharon says that our questions are very seldom asked from a position of genuine curiosity or openness. We usually ask questions to catch people out or as covert statements, to make a point indirectly or to attack? Seldom do we actually ask for the joy of learning the answer. We lawyers can identify with this given our training,which is to never ask a question to which we don’t know the answer. She suggests that we try asking questions about the topic under discussion, genuine open questions of enquiry, so that we can get the story straight. Questions should be innocent open and neutral and inviting. A non defensive question helps people to crystallize what they think, feel and believe. A genuine question is disarming. Enquiry or content questions which are questions asked to get the story straight, would usually start with Who What When, Where, How and Why. However, the questions need to be framed in a particular way to make them non defensive. We also need to enquire a particular tone and to ensure that our body language does not send a contrary message to our professed intention. Sharon suggests what she calls a musing tone and dropping your voice down slightly at the end rather than raising it which can sound querulous. Looking at the way of framing questions , if we ask “Why didn’t you do that”? it is likely to sound accusatory as opposed to “Why did you decide not to do that “? Of course the tone has to managed in asking this question too. Because tone and body language is very hard to convey in a book, I would recommend that those of you interested in this, should listen to the book in CD form as well as having the hard copy which is a very useful reference book for your library. To make a question sound clear, gentle and non-judgemental she suggests that we might use “what” instead of “why” depending on the circumstances and so “What made you decide not to do that”? Of course speaking like this and thinking about how you are going to ask things, adopting a particular tone and so forth takes enormous practice. There is a great deal of information and analysis of different types of questions and how to ask the questions to elicit genuine honest information and so respond accordingly. At the end of each section there are handy summaries which are very useful as references and also help to imprint the ideas and information into your mind.

The second broad category of questions are process questions ie looking behind the scenes. These focus on a person’s involuntary reactions which they may be having quite apart from the content of what they are saying eg tone of voice and body language. For example, Why did you grimace when you said “Ok”? Secondly there are questions about attitude. For example “Do you believe you know how to do this better than I do? There are also questions about motivation and intention ie what caused a person to react in a certain way or what the person is seeking to accomplish in the interaction.

As well as question, there are statements. Statements should be open and direct. A fully open statement is vulnerable and unguarded and has no hidden facets. Directness means that we state needs goals and desires directly. Statements should also be subjective. Expressing ourselves through non defensive statements is a very different way of living from concealing information as if we were holding back a trump card. With non defensive statements we gain power by providing as much information as possible. Formats for making non defensive statements are:
a. Describe in your own words the speaker’s conscious or over message. She criticizes the use of “I hear you saying...” She says that many people use this phrase as an automatic response to what someone else says, rather than first asking sincere questions. She believes that our feedback sounds much more natural when it uses phrases like:
What I think you are telling me is....
It sounds like you are saying
It seems to me you are saying
How I understand what you are telling me is
She says that when we initially begin our feedback format we should focus solely on the overt statement rather than address any covert or double message. When we react to covert messages we just respond to the covert message and often ignore the overt one.
b. Share covert messages – your perspective. This would include discrepancies between his words and non verbal communication and behaviour. When describing a person’s covert message we are better of with
I see
When I look at you
It seems to me
What I perceive
I notice that
c. Describe what you perceive as the cause or motivation for other person’s reactions ie your interpretation. Stating our interpretation of another person’s motives aloud can be difficult. Even when we do so meticulously and sincerely we are taking the risk of exposing our misunderstanding. However if we do not verbalise directly, we may do so covertly. We should present the interpretation respectfully. To do this we should speak only in terms of the specific issue at hand rather than making a generalized statement, avoid repeating yourself and if the other person does not want to hear, stop.
d. Describe your own reactions, thoughts, feelings, beliefs and behaviours. This should be done with integrity and passion. We need to stay focussed on ourselves because when we emotionally focus on the other person we usually become defensive and attack. The initial goal is clarity and not solution.

Predictions. The nature of this is protective and firm. They are foretelling and neutral. They create security through predictability, establish clear boundaries.
Third category. Using “if-then” construct which tell the person how you will respond to various choices he or she might make in a given situation (ie limit setting)
Using “if-then” to tell the person what consequences you believe he or she will experience in live as a consequence of certain choices (challenge- choice).
Using a variety of examples and situations she demonstrates how to use these formats. She acknowledges that the use of these skills may be time consuming and awkward at first but suggests that the time investment is much less than time spent in conflict.
Sharon says that the Non Defensive mindset is consistent focus on being more sincere and open. The most difficult part of the practice is to unlearn old habits. We have to recognize and understand our own reactions. She suggest that we should slow down and pace ourselves and remember that learning how to recommunicate may be a life long process “one that will result in less suffering and more clarity”.