Mandatory Marriage and Divorce Counseling?

Divorce rates in the state of Wyoming are among the highest in the U.S., and legislators there have come up with a strategy they hope will change that. If a proposed bill is passed, couples who plan to marry or divorce will have to attend three hours of counseling at their own expense. Couples who refuse counseling will have to wait a “cooling off” period of one year before being granted a license. Judges will have the right to waive the divorce counseling requirement in situations of domestic violence. The Catholic Church and some other religious institutions already insist that couples who plan to marry in the church receive premarital counseling. Yet while couples who didn’t want to go through such counseling have always had the possibility of opting for a civil ceremony, a marriage license is a requirement for any kind of ceremony. Is Wyoming’s proposed legislation an inspired response to a difficult social problem, or an unacceptable intrusion by the state into the private lives of its citizens?

Critics of the bill have been quick to argue that marriage is a personal decision, between two free individuals, and that “big government” has no place butting in. But this criticism won’t fly. Whether we like it or not, the state is already firmly involved in the institution of marriage. Marriage may be a personal matter, but it isn’t a private one. In choosing to marry (rather than co-habitate) individuals ask the state to recognize their union. Furthermore, many costs of a high divorce rate – in adult and child poverty, strain on the legal system, and higher bankruptcy rates – are borne by the state. The sponsor of the bill, Representative Ed Buchanan (Republican), says that it should help people understand the consequences of life-changing decisions. If internet family law forums are a valid indicator, many people contemplating marriage or divorce have very little understanding of their legal rights and obligations. Helping them to become more aware can only be a good thing.

Right now, there are very low barriers to marriage in Wyoming and its neighbouring states. Obtaining a marriage license will set you back $25 in Wyoming, $30 in Colorado, and a measly $15 in Nebraska. (For comparison, in Ontario a marriage license costs $130.) Making marriage and divorce more difficult might encourage some people to consider their decisions more thoughtfully, and this in turn might affect the divorce rate. Yet despite the good intentions of those who support the bill, I can see a few problems. First, there is nothing to stop couples in Wyoming from crossing the border to get married in another state. Second, I don’t know how strictly the counseling profession is regulated in Wyoming, and it isn’t clear what requirements marriage counselors would have to fulfill and what kind of expertise they would be expected to have. For example, would counseling by members of the clergy be acceptable? The issue of counselors’ training and expertise is all the more pressing when you consider that the issue of whether marriage counseling works at all is controversial. (Click here for an article from the New York Times Magazine that surveys some of the evidence for and against the effectiveness of couples counseling.)

If the bill passes, I hope that someone will do follow-up research. How many couples who receive mandatory counseling will revisit their decisions to either marry or divorce? Will the change have any effect on Wyoming’s divorce or marriage rate? Perhaps the idea will catch on, and mandatory counseling requirement for civil marriage will one day come to be seen as unremarkable as the requirement to undergo a blood test once was.

When to hire a mediator (rather than do nothing)?

People often ask me in what circumstances they would need a mediator. Mediators are experts in conflict resolution, and mediators work in many different settings. There are mediators on the international stage, mediators in family courts, schools, workplaces, prisons, and out on the streets. But when should you hire a mediator rather than doing nothing? I think that there are two basic factors:

1. A decision needs to be made.
2. Something of value is at stake.

Let me explain: We all have conflicts with others. Many of these, thankfully, have little effect on our daily lives. We can avoid the neighbour whose early morning leaf-blower is a weekly annoyance. We can change the subject when our brother-in-law brings up politics or the economy. We can agree to disagree with the other parents in the playground when the topic of our children’s “screen time” comes up. But sometimes we have to co-ordinate and work together with others and conflict becomes unavoidable. And sometimes, despite conflict and differences of opinion, decisions have to be made. For example, will the children of divorced parents spend the weekends with their father or mother? Will they continue to attend the neighbourhood school or transfer to a private school? Where will they spend the holidays? Who will be in charge of their religious instruction?

It isn’t only divorced couples who need to make decisions together. Mediators also work with couples who plan to marry, to help them frankly discuss and then plan for the financial and “business” aspects of their relationship. They help married couples who plan to stay together, but need assistance to communicate effectively. And a whole range of potential conflicts can arise among adult siblings. When an elderly parent can no longer live independently, who will decide the best course of action? Who will take away grandpa’s car keys if his driving is putting others at risk? What is to be done if the family farm or business is no longer viable in its present form?

What all of these different situations share is that a decision needs to be made, and there is something of value at stake. The question of what counts as “something of value” is in the end a personal matter. I’ve seen families nearly torn apart over the issue of who will host Christmas dinner! While this isn’t something that I personally would seek help with, I know others for whom a couple of hours with a mediator to resolve this issue would be a sound investment in future family relations and personal happiness.

In general the cost of mediating a particular conflict can be weighed against the cost of doing nothing. Sometimes, if we’re fortunate, the cost of doing nothing is low. But the costs of inaction and indecision are sometimes very high. Failing to act can allow conflict to fester and can end up costing as much or more than taking action. And it has to be remembered that the costs of many conflicts are both financial and emotional – with the emotional costs being much harder to calculate.

Conflicts that Should have been Mediated: (1) The Judge’s Dog

Every now and then I hear about a conflict that wasn’t mediated but should have been. Mediation would have saved the participants time, money and aggravation.

Judge Beatrice Bolton and the Malia family had been neighbours in the north of England for years when the judge acquired an Alsatian puppy. I don’t know how exactly it all started, but the Malias and Georgina, the dog, did not hit it off. The family say that they lived “in terror” of the dog, and demanded that Judge Bolton keep her chained up. Apparently the police were called several times, and the Malias resorted to installing CCTV on their property and keeping a “dog log” of incidents. The conflict came to a head at the end of May, when Georgina bit the Malias’ son, Frederick, who was home visiting from university. The bite did not require medical attention; the judge apologized. On December 13, 2010 she was convicted of allowing her dog to enter a private area where there was a “reasonable apprehension” that it would bite someone. She was fined £2500 and ordered to pay £275 to Frederick, £930 in court costs, and a £15 victim surcharge. The case has received a fair amount of press coverage in the UK because the judge was heard swearing loudly (calling the decision “a f****** travesty”) outside the courtroom after the verdict. She was also heard to yell, “I’ll never set foot in a court again!”

I know about the case only what I’ve read in published reports and many details are hazy. Judge Bolton’s legal counsel said that relations between the neighbours had deteriorated before and since the dog attack. At some point, Judge Bolton had attempted to mend the relationship by offering to introduce the dog to the Malias and to build a fence between the properties, but the Malias had refused both. It isn’t clear why the Malias refused the fence, and it isn’t clear whether the Judge allowed her dog to run free or whether she simply lost control of it on the day it bit Frederick.

The Judge plans to appeal the decision and is “considering her future.” Her behaviour outside of the courtroom will be referred to the Office for Judicial Complaints. Georgina the dog is being trained. The Malias have the satisfaction of having been vindicated in court; their son will live with what must be a frightening memory. Relations between the neighbours can hardly be comfortable.

Reading about the case, I wondered whether the police, on any of their numerous visits, had suggested mediation. A mediator would probably have met separately with both parties. (A meeting with Georgina the dog would be strictly optional.) He or she would have asked some probing questions to better understand the situation. Why did the judge acquire a dog? For companionship? For protection? What did the dog mean to her? What were her long-range plans with regard to training the dog? Why were the Malias afraid of the dog? What kinds of previous experiences with dogs, good and bad, had either of them had? Why did they refuse the Judge’s offer to build a fence? Depending on the answers, the mediator might shift strategy and ask questions that would help each party to start thinking about the situation from a different perspective: Had the judge ever considered what might happen if her dog bit someone? Did the Malias think a large playful dog would be content to be chained up for long stretches of time? Had they ever heard of a situation in which a dog-owner gave up their pet at the neighbours’ behest?

At some point, the mediator would have probably got the two parties to sit down together and listen to one another. Judge Bolton would hear about the Malias’ fear of Georgina and how having a dog next door affected their lives. The Malias would hear about Judge Bolton’s affection for the dog, and her hope for continued good relations with them. Then the mediator would move the parties towards thinking about the future. How could they ensure that the Malias didn’t have to live in fear of the dog, while at the same time allowing the Judge to care for her pet in the most suitable fashion? While it wouldn’t be easy or necessarily quick, the parties working together with the mediator would likely be able to come to a solution. All for much less than the price of CCTV installation.

A final note: As a North American, I found it a little dismaying that both the Daily Mail and the Telegraph felt necessary to refer to Judge Bolton as a “woman judge.” (Anyone not sure why might check out this nice posting on gratuitous modifiers.)

Should Artists Give Away their Work – Even for a Good Cause?

I was chatting with an artist friend the other day, who told me how frustrated he gets when he’s asked to donate his artwork to various causes. Apparently a number of arts organization have a similar fund-raising model. They persuade artists to donate their work, which they sell and then use the proceeds to support the work of the organization. My friend, by no means in the “Damien Hirst” category of rich well-known artists, tells me that he receives four to five such requests a year.

Now, this might not seem like such a big deal. Most of us are regularly solicited by various charities, whether through mailings, emails, telephone calls, appeals at work, even requests to pitch in to various good causes while paying for groceries. And my friend is no Scrooge – he supports the arts and wants to help the organizations that approach him. But consider this: He provides for himself and his family with a full-time job. The time he has to make art is therefore limited to evenings and weekends. Some of his artwork is already promised to galleries, etc. He simply doesn’t have much time to produce “extra” work that he can donate. In asking for his art, these organizations are asking for something that is in many ways more valuable than a straight-forward cash donation.

But there are other reasons, aside from the time constraints, that artists should think carefully before giving away their work. Reflecting on my friend’s situation got me thinking about philanthropy and volunteering more generally. (Volunteering one’s time and giving money are of course different, but they are structurally similar enough to discuss together here.) Economists and other social scientists have paid surprisingly little attention to the charitable sector, and to uncovering the reasons why people give and why they give what they do. Some people help others out of a sense of obligation. They simply feel that it is the right thing to do. Others give because they support the goals of a particular organization and want it to succeed. Much political volunteering is like this. Still others help because it makes them feel good – sometimes called the “warm glow” factor. There can be other, more tangible benefits to volunteering. It can be a way of gaining experience and knowledge that one could not otherwise get, and it can be a form of networking. Of course, these reasons are not mutually exclusive, and any one person might volunteer or donate from any number of motives.

There is another reason why people give. We sometimes give what we have too much of, or what we don’t ourselves value or no longer value. I think of this as the “zucchini paradigm.” If your neighbour has an overabundance of zucchini in her garden, she might give you some. It doesn’t mean she doesn’t value the zucchini as such, only that she currently has so much that the zucchini she gives away has little value. And her motives might be mixed. She may feel good when she gives away produce, and she might secretly hope that you will reciprocate with some tomatoes. Now think of volunteering. Have you noticed that all too often the same people end up giving their time again and again? Is it just that they can’t say no? I don’t think it is so simple. Unfortunately, when people generously give a lot of their time to help others, they risk sending the message that, “My time is not so valuable to me.” I was reminded of this the other day in the schoolyard, when I overheard a parent complain that the principal had asked her to drive the swim team to their next meet – this after she had helped out all day at the Terry Fox Run, and was also organizing the bake sale! Sadly, the principal seemed to have made the inference that it was OK to approach this woman with yet another request because her time was not so precious to her.

So to answer the question I posed in the title – should artists give away their work for a good cause? The answer is yes, but only after they have carefully reflected on its value in terms of materials, time and opportunity cost. If they do this, then I suspect that most artists will choose to donate their work fairly rarely. And arts organizations might also start to think about different ways of raising much-needed funds. Artists and arts organizations need to beware of the zucchini paradigm. When artists give away their work too freely, and when arts organizations ask artists for their work, they risk inadvertently sending the message that art in general – and their work in particular – is not something to be treasured. They risk undermining the very foundation that they are trying to construct.

Conflict Resolution and Anger

Anger can make us do and say things that we later regret. It can make a person do and say things that they would never do or say in normal circumstances. Most of us know or have known someone who became angry over trivial matters, or whose anger was detrimental to themselves and their relationships. There is a Buddhist saying that I think perfectly sums up the self-destructive character of anger: Holding onto anger is like holding a burning coal with the idea of throwing it at someone else; you are the one who gets burned.

Yet there is another side to anger. Anger or indignation can also be tied to our sense of justice and injustice. When we believe ourselves or others to be the victim of an injustice this can make us angry. The philosopher Aristotle thought that the ability to feel anger to the right degree, at the right times and for the right reasons, was a characteristic of a virtuous person. He thought that there was something flawed about a person who would fail to become angry over a serious injustice to himself or his friends. And later feminist thinkers have linked the ability to feel anger to proper self-respect. This is why to tell a woman that, “You’re cute when you’re angry,” is demeaning. It suggests that the individual expressing anger (and the slight that caused it) are not to be taken seriously.

So while the expression of anger can be both damaging and self-damaging, it is not necessarily an emotion we’d be better off without. Sometimes we feel driven to express anger, as Shakespeare’s “shrew” Katherine tells us:

My tongue will tell the anger of my heart,
or else my heart concealing it will break.

Yet at other times the expression of anger would be self-indulgent at best, and have serious harmful consequences at worst. I have in mind here occasions like expressing anger towards a boss, co-worker or a customer, or having an angry exchange with one’s partner (or ex-partner) in front of the children. Even if the capacity to feel anger is tied to self-respect, sometimes the ability to suppress the expression of anger is a sign of mature self-restraint.

In modern society we’re often encouraged to express anger. However it is worth noting that the available empirical evidence does not support the view that the expression of anger is always beneficial. In fact, recent research suggests that the expression of anger is helpful only if it is accompanied by constructive problem solving designed to address the source of the anger. [See Littrell, J. 1998. “Is the Re-Experience of Painful Emotion Therapeutic?” Clinical Psychology Review, 18, 71–102; and Lohr, J. M., Olatunji, B. O., Baumeister, R. F., & Bushman, B. J. 2007. “The Pseudopsychology of Anger Venting and Empirically Supported Alternatives,” Scientific Review of Mental Health Practice, 5, 54–65.]

Mediators have different views on the expression of anger during the mediation session. While mediators are trained to diffuse anger and other negative emotions, they don’t always choose to do so. I’ve heard experienced mediators say things like, “My clients were really screaming at each other – that’s when I knew we were getting somewhere!” I find it interesting that these mediators link the expression of anger with the work needed to resolve a dispute. It has been known for some time that attempting to solve disputes through a confrontational process such as litigation tends to make individuals who are already aggressive even more so. Furthermore the expression of anger in litigation is unproductive; it is not tied to any work or to any eventual solution of the dispute. The very nature of litigation is that someone else has the responsibility for solving the dispute. The expression of anger in a mediation session is a different matter. It has the potential, at least, to be real constructive work. An angry exchange in the privacy of a mediation session might be part of the process that leads to a satisfactory resolution for everyone involved.

Note: I’d like to thank my friend Jim Davies, cognitive scientist at Carleton University, for telling me about the research mentioned above. Check out his blog posting on How to Deal with Anger.

Bad Arguments Against "Droit de Suite"

When I teach critical thinking and argumentation, I often tell students that nothing bothers philosophers more than bad arguments in support of positions they agree with. Well, bad arguments against positions one cautiously supports can also be pretty annoying. A couple of weeks ago I discussed droit de suite – a royalty that visual artists or their heirs receive when their work is resold at auction. Since then I’ve tried to learn more about droit de suite and I’ve come across a few persistent bad arguments against it.

1. Droit de suite benefits established, older artists, not the young and struggling artists who really need financial support.

Any policy will benefit some people more than others. That, in itself, is not a reason to be against a particular policy. This objection would only have force if we were choosing between droit de suite and some other policy that would in fact benefit younger artists. But so far I’ve heard nothing about a possible alternative.

2. Droit de suite is not a substitute for a proper retirement plan.

The folks at Fidelis Art Prints in Vancouver make this objection in an article on their website. They make some excellent points about the importance of pricing one’s art properly and about financial management for artists. And they’re right – droit de suite is definitely not a substitute for a proper retirement plan. Neither is winning the lottery. But it simply doesn’t follow that the Canadian government should resist efforts to institute droit de suite here.

3. Art collectors have a right to make a profit from their investments.

Art collectors are an important part of the art world. When collectors purchase works, they help support artists and galleries. Some collectors generously lend or donate their collections to museums where they can be viewed and enjoyed by everyone. Collectors most definitely should have the chance to reap a financial gain if they choose to sell. In countries were droit de suite is the law, the amount of money that goes to an artist when a work is resold is quite small – usually four to five percent of the resale price up to a certain maximum. No one is asking collectors to stop making a profit, only to make a somewhat smaller profit.

4. Why should droit de suite apply to artworks, but not to works of fine design?

Perhaps works of fine design should also be included in resale royalty schemes. I tend to think that there are important differences between artworks and design objects that would make droit de suite inappropriate for design objects. Yet whether I’m correct about this or not has little bearing on the main question: Would droit de suite be a good thing for Canadian artists and the Canadian art market, or not?

5. Droit de suite is difficult to administer and enforce.

Again, this is probably true. Yet many other jurisdictions have found a way to administer droit de suite. Canada might learn from their experiences. Also, the fact that a policy is difficult to enforce is not necessarily a reason to reject it. The administration and enforcement of child support payments by non-custodial parents can be extremely difficult; yet this is not given as a reason to change existing family law.

These five arguments against droit de suite are low-hanging fruit, so to speak. Most of them are “fallacies of relevance.” Even if the point they make is true, it is of little or no consequence for the issue at hand. I don’t mean to suggest that all arguments against the policy are bad. In fact, some of the arguments against it, such as those raised in an article by Jonathan Tepper, are very subtle and complex, and would require a lot more attention that I can give them here.

One final thought: Some of the more legally sophisticated arguments against droit de suite turn on the objection that it would be a mistake to treat artworks differently from other types of property. But it is worth noting that we do, in fact, already treat artworks differently, both as a matter of practice and in the law. For example, many countries have laws and regulations against exporting certain kinds of artworks, laws and regulations that do not apply to other kinds of property.

Mediation as a Substitute for Justice?

“Mediation is a complement to justice. It cannot ever be a substitute for justice.”

These are the final words of the Gordon Slynn Memorial Lecture 2010, given by Lord Neuberger of Abbotsbury, the Master of the Rolls. (The “Master of the Rolls” is the Monty-Pythonesque title given to the second most senior judge in England and Wales. He is the presiding officer of the Court of Appeal, Civil Division.)

Lord Neuberger assures his audience that he is a “keen supporter” of ADR; his worry is that the tendency to treat mediation as good and litigation as bad may be inconsistent with a commitment to equal access to justice. His argument goes like this: Equal access to the law is a fundamental component of democracy. The civil justice system is not merely a service offered in the marketplace; to regard it as such is to misinterpret its constitutional function. Mediation and ADR, in contrast, are not part of the state; they are services offered to those in dispute. To insist that disputants try mediation before litigation places an additional financial barrier to the justice system, thus compromising the principle of equal access to the courts. Disputants may accept a mediated solution that does not reflect their legal rights because they cannot afford both to mediate and to litigate.

Lord Neuberger gave this lecture on November 10, just days before the British government announced cuts to legal aid for civil cases and increased support for mediation and ADR. His remarks have to be interpreted in light of the current political situation in the U.K.

What does Lord Neuberger mean when he claims that mediation is not a “substitute” for justice? It sounds like he means that mediation is something different from and inferior to justice, the way a baker might caution one that nutrasweet or sucralose would not be adequate substitutes for sugar in the chocolate chip cookie recipe. And I fear that this is the meaning that will be assumed by those who hear this remark out of context and fail to read his entire lecture. I think it is fair to say that Lord Neuberger means that ADR is not a substitute for the justice system. He is using the word “justice” to mean something like “those decisions that are handed down formally through the legal system.” Now, while it is legitimate to use the word “justice” in such a way, this is probably not the meaning that most people have in mind when they use the word. We allow for the possibility that certain laws may be unjust and that the administration of the law itself may be unjust. Of course, Lord Neuberger recognizes this too. He even quotes Sir James Mathew’s ironic remark that, “In England, justice is open to all – like the Ritz Hotel.” Yet while Lord Neuberger acknowledges that equal access to the law is far from being a reality, I don’t think he makes enough of existing barriers – ones that have nothing to do with the proposed expansion of ADR.

No one would disagree that mediation is not a substitute for the civil justice system. Even the most enthusiastic ADR supporters recognize that some disputes are inappropriate for mediation. There are other reasons why “mediation” and “justice” should not be opposed to one another. Justice can be a quality of processes or of outcomes. Mediation and litigation are both processes of dispute resolution. As such, each can be conducted fairly (justly) or not. Litigation and the formal legal system do not have a monopoly on fairness. Similarly, the outcomes of either of these processes might be fair or not. The fact that a settlement has been voluntarily assumed or forced upon disputants does not tell us whether or not it is fair. Finally, mediation and the legal system need not be seen as in competition with one another. A mediated settlement may be formalized as a contract, a document with the power of the courts behind it.

Ethics and Insider Trading

This morning’s Globe and Mail brought the news that Mitchell Finkelstein, a partner in a prominent Toronto commercial law firm has been accused of “tipping” – passing along sensitive confidential information to an old friend from university, who in turn profited from the information. The friend, Paul Azeff, works for the Canadian Imperial Bank of Commerce in their “World Markets” division. He, along with Korin Bobrow (a high school friend and colleague) have been accused by the Ontario Securities Commission of insider trading and suspended by their employer. Two employees of TD Waterhouse were also charged by the OSC in connection with the investigation and have been suspended by the bank.

It is important to note that none of these allegations has been proven.

Insider tipping and trading are both immoral and illegal and certainly no laughing matter. Still, I couldn’t help smiling as I read the Globe’s earnest claim that:

“Nothing in Mr. Finkelstein’s background would have suggested this turn of events.”

Now, insider tipping and trading are, by definition, crimes committed by insiders. That is, by people with access to information that is not yet public knowledge. People without access to privileged information – outsiders – are unlikely to run afoul of the law here. So the very “background” that made Mr. Finkelstein an insider – his private school education, his membership in the same fraternity as Mr. Azeff, and his position of trust in a prominent law firm – are the same things that made possible the accusations against him.

The Globe’s claim is also naïve in its implication that we should be able to find something in Mr. Finkelstein’s background that would allow us to make sense of the allegations. Surely, the reasoning goes, there must be some character flaw or formative experience that separates the vast majority of honest and rule-abiding lawyers and brokers from those who seek to profit from insider information. This idea is comforting, because once we have figured out what that difference is, we should be able to protect ourselves from the cheaters and fraudsters of the world. It hardly needs to be said that the idea is dangerous as well. Men like Bernie Madoff and Earl Jones were able to dupe as many as they did just because there was nothing in their backgrounds to indicate that they would engage in criminal acts.

If an employer can’t tell from a person’s background whether he or she is likely to commit an immoral act or a crime, what is to be done? One answer is to reduce the opportunity that any employee has to get their hands on information that might be profitable if passed along. This passage in another article about Finkelstein jumped out at me:

“In the report the OSC alleges that between November 2004 to May 2007 Finkelstein “actively sought out and acquired” non-public information either through his role as counsel with Davies or by conducting searches on company system.

If the allegations are true, then Finkelstein was able to gain access to sensitive information that he strictly had no right to have. Reduce the number of people who have access to such information, and the potential for insider tipping and trading will also be reduced. Furthermore, taking a leaf out of the Security Services book, every deal file that is of potential value should be marked as such and then meticulous track kept of every person who reads it.

"Droit de suite" and the Canadian Art Market

A composer receives a royalty when her work is played over the radio. A writer whose articles are reprinted is paid a fee. A painter whose work is re-sold at a profit receives….. nothing.

This is the current situation for visual artists in Canada, most of the U.S., Asia, and New Zealand. However things are different in the countries of the European Union, Australia, and California. There artists receive a percentage of the re-sale value when their work is sold at auction. If the artist is deceased, his or her heirs are paid until copyright is expired, usually in seventy years. This fee, called “droit de suite,” is a way for artists and their families to benefit from the increase in value of their work over time. It is different from copyright, which visual artists usually retain over their work. Droit de suite originated in France in the years after WWI as a way to help the widows of artists killed in the war. The amount received by an artist depends on the price of the work at sale, but usually amounts to about four percent. The maximum royalty payment an artist can receive for each re-sold work is 12 500 euros, or about $17 500 Cdn.

The EU agreed on the adoption of droit de suite in 2001, although it was only put into effect in the U.K. in 2006. Australia adopted the Resale Royalty Right for Visual Artists Act in 2010, with the exploitation of aboriginal artists particularly in mind. Here, the Canadian Arts Representation (CARFAC) has been lobbying politicians to add a resale right to Canada’s copyright legislation. As European countries pay resale fees to artists of all nationalities, they would like to see Canadian auction houses respond in kind. The Globe and Mail recently discussed the issue of droit de suite with an article featuring the painter Mary Pratt. A painting she sold for $50 in 1966 is expected to bring between $10 000 and $15 000 at Sotheby’s auction of Canadian art later this fall. Pratt is now 75 and suffers from health problems; I imagine she might appreciate a financial windfall.

There was a lot of controversy in the UK when a harmonization of droit de suite across Europe was first suggested. Because few wanted to be seen as arguing against a measure that would benefit artists, most of the arguments put forth against resale royalty rights tended to be practical or pragmatic, rather than strictly moral. For example, it was said that the fees would be difficult to administer, and that the payments would tend to benefit the heirs of established dead artists, rather than impoverished living artists. It was also suggested that artists already benefit from higher re-sale prices for their work, as they tend to push up the prices for new work as well.

The strongest argument offered in the UK against the adoption of droit de suite came from the auction houses, who argued in effect that it would create an un-level playing field for them in comparison with auction houses in the U.S., Switzerland, and Asia. If the transaction costs for selling a work are higher in the UK than in these other markets, then collectors would be likely to move to these other markets. Imagine a Japanese collector with a Picasso to sell. If it would cost him an extra $17 500 to sell the work in Paris or London as opposed to New York, it is not difficult to imagine that he would opt to sell the work in New York.

It is too early to tell in what ways the adoption of droit de suite in the U.K. has affected the art market there. What would be the effect if Canadian politicians voted to adopt some form of droit de suite? It would be very interesting to see some industry projections. How much would living artists benefit? What percentage of the art market in Canada is made up of Canadian works, and how much is international? If the auction houses do most of their business with Canadian works, then droit de suite might have only a minimal effect on their bottom line.

Read This….. or Else

Ontario Superior Court Justice David Price has ordered an estranged couple to read three books on communication and parenting and to report back to him on what they have learned at their next court appearance. The books are: Difficult Conversations by Douglas Stone, Bruce Patton and Sheila Heen; Parenting After Divorce, by Philip M. Stahl; and Parenting from the Inside Out, by Daniel J. Siegel and Mary Hartzell.

As an educator, I’m a little uncomfortable with anything that might smack of reading as punishment. Family lawyers contacted by The Toronto Star and The National Post noted that the ruling was unusual and disagreed as to whether the “homework” assignment would have its desired outcome.

It is not difficult to understand why Justice Price might be frustrated with the couple. Their disagreements – over money and access to their twin sons – seem both intractable and unremarkable. I imagine that similar disputes play out in family courts on a daily basis. The mother is asking for her former husband’s share of the proceeds from their matrimonial home, and to deny him the right to see their children. The father is asking his estranged wife for $12 000 and accuses her of already denying him access to the children. She in turn says that the children are reluctant to see their father; while he seeks to end her sole custody of the boys, and prevent her from taking them for counseling to an abused-children’s group. Along with the reading assignment, the judge ordered the mother to provide make-up days for the denied access, the father to undergo an assessment for alcohol and drug dependency, and for both of them to seek counseling on communicating with one another.

The estranged couple in this case have at least one thing in common: neither was represented by a lawyer. So neither has the financial incentive to settle a case that is provided by the specter of imminent and increasing legal bills.

There are many different ways to solve disputes. When you elect to solve a dispute through litigation, as this couple has, one advantage is that there will be an eventual clear resolution. But going to court means giving up control over the outcome of your dispute, and the resolution imposed by the courts might not be to your liking. Perhaps people lose sight of this possibility, or are simply unable to imagine a court not seeing the situation exactly as they do. So they may refuse to comply with court orders they dislike, only to find themselves back in court. And on it goes. The law is a blunt instrument, as it is often said, and it is interesting to see Justice Price try something new, whether or not his measures have their desired effect. Just as a good mediator might, the judge is appealing to the couple’s better instincts, and trying to get them to see that they have a shared interest in the well-being of their children, and that they may even continue to share some important values related to their children’s upbringing.

There is also the slightest hint of public shaming in the judge’s order. In demanding that the couple read up on parenting, the judge makes a clear statement as to what he thinks of their behaviour and their parenting skills up to now. It can be uncomfortable to realize how others see us, but it might be the beginning of some positive change.