Ronald J. Smith, QC
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Beyond Getting to Yes

September 27th. 2016 Share on FacebookTweetEmail story
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Getting Beyond Yes – The Role of the Mediator and Lawyer in  Resolution and Reconciliation , Christian Legal Journal, September, 2016, Vol.25, Issue 3.  Ron Smith QC

Those of us who practice Family Law spend our careers dealing with broken dreams, anger and grief.  The emotional fall-out of a broken relationship can overwhelm the ability of the parties  to deal rationally with their situation, and should influence how counsel engages in  the negotiation process.

Family lawyers, play a special role in helping their clients navigate one of the most difficult times of their adult lives.  As Christians, we are mandated to bring peace and reconciliation to this difficult, high conflict area of law. 

What those of us who do this work realize is that our part in the family  break up is not the end of the story.  The parties we are dealing with will most often need to deal with each other, their children, their extended families and their mutual friends long after our work is finished.  At the very least, our actions should be governed by the medical admonition, “Do no harm.”  Our efforts should not add to the estrangement of the parties in the future.

The most effective family counsel are those who understand the emotional issues of their client’s and their client spouse and are able to distance themselves from the conflict.  The effective lawyer models rational, polite, and effective communication with other counsel or the self-represented party, however  she might judge the party’s past behavior.

In a collaborative file or mediation, it is important that we, as counsel, realize that our role is to help the parties achieve resolution of the legal issues raised by the separation – nothing more.  We are not in this process to help a party avenge past wrongs, or to judge a party’s behavior – we are at the table to assist in resolution. 

The protocols of a Collaborative Family Law Agreement provide a useful example of how counsel should deal with each other and their clients to achieve a collaborative resolution.  The aim of counsel in a collaborative process is to bring the parties to “yes”.  The Collaborative Agreement to which both counsel are bound upon signing,  mandates how counsel should deal with each other in order to achieve a settlement in a non- conflictual way.

  The Collaborative Agreement requires of both counsel and the parties that,   ”Written and verbal communications will be respectful and constructive and will not make accusations or claims not based on fact.”

So how does our responsibility in effecting reconciliation fit into our role as counsel?  We would all like to be agents of restoration or reconciliation, but we come to the dispute very late in the day, often after  years of interaction – good and bad – have brought the relationship to an end.  We are not family counsellors, and even if we were, in most cases the best outcome for the parties is to move forward towards individual wholeness.  “Restoration”, in this light, can mean restoration of the individual as a functional individual, who is able to move past his or her present hurt and grief.

In my experience, the prospect of reconciliation- if it means restoration of a marriage – is a rare occurrence in a mediation or collaborative negotiation.  Sometimes, one party raises reconciliation as a genuine expression of grief or need, but it can also be used as a negotiation tool, intended to lengthen the settlement process. Counsel must take care to assess the motive behind the request to consider reconciliation when it comes from only one party.

Whenever I encounter a situation where both parties express a wish to reconcile, I always counsel them to begin the process with intensive family therapy.  I tell them that the same issues that caused their breakup today can occur in the future, and that they should deal with these issues before resuming their marriage.  With the right counselling, couples can often renew their relationship.

Whether we act as counsel or as mediator, we need to be aware of the limitations of our role.  We need to limit our behavior to “do no harm”.  We need to remind ourselves that while the parties before us have a history that has brought them to where they are today, they also have a lifetime ahead of them to deal with the aftermath and its effects on their families.   Our role as lawyers in the healing process is to walk with clients through this difficult season, helping to prepare them to effectively deal with each other and their children in the years ahead.

 
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