Grandparents, Children and Divorce

Grandparents for Grandchildren

Among the current proposed changes to family law in England and Wales is a plan to grant access rights to grandparents in the case of family breakdown. (Here is an article about the proposed changes.) In Ontario, a private member’s bill (no. 33) with a similar aim is currently being reviewed by the standing committee on social policy.

Grandparents often play important roles in the lives of their grandchildren. They help out with childcare, provide a sympathetic ear, and share their life experience. There is good evidence that children benefit from having a close relationship with their grandparents. When a child’s parents have separated, the grandparents’ role is all the more crucial. A grandparent’s home can be a place of peace and stability. This is especially true if the parents are angry or upset with one another, or there is a lot of upheaval in a child’s life.

Sadly, many grandparents have reported that they have found it difficult to remain part of their grandchildren’s lives after the children’s parents split up. Paternal grandparents are especially likely to report feeling shut out. While there is support in both England and Ontario for improved legal rights for grandparents to see their grandchildren, it is easy to see that changing the current laws cannot be the whole solution. For one thing, many seniors are on restricted incomes and may not have the means to hire lawyers and have their day in court.

Why would a parent make a decision to restrict the time that their children can spend with their grandparents? A mother might feel that her former in-laws never accepted her or never liked her. She might feel that they contributed to the breakdown of her marriage. A father might fear that his ex-wife’s parents are going to put him down in front of their children. If one of the parents does not share the same religious or cultural background as his or her in-laws, that parent might be concerned that the grandparents will not respect these different cultural traditions, and this in turn might be confusing for the children.

I predict that many conflicts between parents and grandparents over the right to spend time with their grandchildren will end up in mediation. A mediator can talk to all of the parties involved and work to keep everyone focused on the best interests of the children. Children do benefit from having their grandparents in their lives, but it is also important that grandparents are respectful of both of the children’s parents. One of the greatest gifts that grandparents can give to their grandchildren is a stable and peaceful setting where they can get away from their parents’ conflicts and problems. It might not always be easy for grandparents to set aside bad feelings about one or other of their grandchildren’s parents. But refusing to do so can only make a bad situation worse.

Mediation and “Bad Faith” Bargaining

Mom buys fish for dinner
I remember, during my mediation training, asking for a clear definition of “bargaining in bad faith” and being disappointed not to receive one. Having now myself done a little research I can understand why the concept is so hard to define, despite many people’s claim to “know it when they see it.”

Most of the legal discussions of bad faith bargaining that I have seen come from the area of labour relations. For example, the Alberta Labour Relations Board advises that, “parties must make every reasonable effort” to reach an agreement. They also list some examples of bad faith bargaining techniques, including refusing to meet the other party, refusing to respect the other party’s representatives, reactivating proposals that have already been settled, adding new areas of discussion late in the dispute, and “surface bargaining.” I would guess that “surface bargaining” is what most people have in mind when they think of bad faith bargaining. It is basically a form of stalling. In surface bargaining one of the parties “goes through the motions” of bargaining, but has no intention of ever coming to an agreement. The BC Labour Relations Board defines bad faith bargaining somewhat more strictly, saying that it is the “deliberate strategy by either party to prevent reaching an agreement.”

Bargaining in bad faith is not the same as “hard” bargaining, but the two can be very difficult to tell apart in practice. Imagine a dispute in which party “A” has made what they consider a reasonable offer to settle. Party “B” refuses to accept it and has not moved very far from their opening position. Did party B never intend to settle, or are they simply convinced that party A’s offer isn’t yet good enough? How would a mediator (or anyone else) be able to tell, short of a private confession by party B? Or imagine a dispute in which party A spends a lot of time going over relatively trivial yet highly detailed matters. Is party A deliberately stalling, or taking reasonable care to protect their interests? And who is to say what counts as a “trivial” issue?

Yet despite the difficulties in characterizing bad faith bargaining, it represents a real problem for mediators and for the mediation process. It is a particularly troubling possibility when one of the parties has greater resources (time, money) than the other. The more powerful party can stall, drawing out the process and using up the other party’s time and money. When the mediation process is declared a failure, the stronger party is in an even more favourable position. The weaker party, having depleted their resources, may agree to an unreasonable offer because they no longer have the money to defend their rights in court.

What should you do as a mediator if you suspect that one of the parties is bargaining in bad faith? I don’t think that there is any way to be sure that parties intend or do not intend to come to an agreement, and it is important not to jump to conclusions. If one of the parties won’t move from what looks like an unreasonable position, try to find out why. Their view of the dispute may be such that their own position is reasonable. How does it differ from your view, and from the other party’s view? But there may come a point in a mediation when the mediator begins to suspect that the process is not serving either party and that prolonging it would not be a good use of their time or money. In this event, the best thing for the mediator to do may be to explain their concerns and then exercise their right to end the mediation.

How to Write a “Code of Conduct”

Beating around the Bush

Recently I’ve been working with a client on a project that involves codes of conduct, and I’ve reviewed a number of such codes within a specific industry. A “code of conduct” is a set of rules or proper practices that regulates behaviour within an organization. Many large businesses and organizations have codes of conduct, as do armies, street gangs, criminal conspiracies, and groups of professionals. Even pirate ships, often a byword for lawlessness, had codes of conduct to regulate discipline, division of spoils and compensation for the injured.

Here are some of the things I have found about crafting an effective code of conduct, no matter what kind of behaviour or organization is to be regulated:

Purpose: It is worth spending some time thinking about why you need a code of conduct before starting to write. What kinds of activities need to be regulated and why? What values do you want to promote? What kinds of practices do you want to discourage?

Content: The most effective codes I have seen contain both abstract language about values and some clear, concrete guidelines. It is fine to say something along the lines of: “Members of the organization will be honest and scrupulous in financial dealings.” But you might also want to say, “Employees will neither accept nor offer bribes.”

Scope: Don’t try to be exhaustive. The idea is not to regulate every aspect of an individual’s life, or even every aspect of working life. Focus on what you believe is most important.

Consult: Talk to the people who will be using the code. What kinds of ethical challenges do they face? Which work-related situations do they find most troubling? If the code is to be effective it has to be relevant to the experiences of those who are expected to abide by it.

Length: If you want the code to be a document that people refer to and consult on a regular basis, it should not be too long or complex. A good length to aim for is one page, maximum.

Style: I’ve seen several codes of conduct that were all too obviously written by lawyers. While it is a good idea to have a code vetted by a lawyer, it should not require a law degree to understand it.

Keep it current: As your organization develops and grows, members will face new challenges. And technological advances bring their own ethical challenges. Ten years ago, no one needed a company policy about employees’ Twitter activity. Today, it might be quite relevant. Be sure to review and update your code of conduct periodically.

Cohabitation Agreements

Cohabitation

In my previous post, I mentioned a recent decision by the Supreme Court of Canada that is likely to change the way that the courts deal with support and property conflicts between unmarried partners. There’s speculation among lawyers that the decision will lead to an increase in cohabitation agreements. So I thought it would be useful to say something about them here.

A “cohabitation agreement” is a contract between unmarried partners who live together, and it can be signed before the couple move in together or after. It usually specifies things like the rights and obligations of each party during the cohabitation, and what will happen if the relationship ends. For example, who will own property acquired during the relationship? Will one partner be obliged to support the other, and for how long? Who will move out of the shared residence, and how soon after the relationship ends should that person be expected to find a new home? For a cohabitation agreement to be legally binding the parties must sign it in front of a witness (who also signs); each must make a full and frank financial disclosure; and the parties must sign voluntarily.

There are good reasons for couples to work out a cohabitation agreement before moving in together. Working together on a cohabitation agreement can give each person some idea of how the other deals with conflict, and if they are able to have together what mediators like to call “difficult conversations.” For example, many couples avoid talking about money and realize only too late that they have different values around it and different spending habits. Having an open and honest discussion about each other’s financial situation and financial goals early in the relationship can help avoid conflict and misunderstanding later on. Another good reason to have a cohabitation agreement is that, if the relationship does break down, a legally binding agreement can provide some predictability about property rights, and it can help protect against unnecessary cost and litigation.

But do you really need a cohabitation agreement? A lawyer who specializes in family law can advise you about your particular situation. Likely, the answer depends on how much property you own, and how complicated your life is. If the only discussions you and your partner need to have are over who unloads the dishwasher and who pays the extra cable charges, probably a formal agreement isn’t necessary. But if one or the other owns a home or other substantial assets, or has children, a cohabitation agreement might be a good idea. Another factor to consider is whether the shared living arrangement is meant to be temporary or long-term. If the arrangement is meant to be long-term and indeed to take the place of a marriage, then having a formal agreement is probably advisable. I should also note that, ordinarily, a cohabitation agreement remains valid if the couple marries.

If you do decide that you and your partner would benefit from having a cohabitation agreement, then do it properly. Meet with a mediator if you find it difficult to discuss money or other sensitive subjects. Most importantly, each person signing the agreement needs independent legal advice. That means that both you and your partner should go over the agreement with your own lawyer. It is better to spend the money at the outset to make sure that you have a durable agreement, than to find out later (and at much greater expense) that your agreement won’t hold up in court.

Marriage, Cohabitation, and the Law

Two parts, one heart.

When a couple moves in together, along with good wishes, they are likely to receive misinformed advice. Contrary to what many seem to believe, there are important legal differences between living together and being married. Just what these differences amount to depends on where the couple lives. (I will avoid using the term “common law marriage.” Not all jurisdictions recognize common law marriage, so using the term where it may not be appropriate is misleading.)

Below I’ve outlined some of the main differences between married and cohabitating couples in Ontario. The key difference is that married couples are treated as an economic unit, while cohabitating couples are not.

Primary Residence: When a married couples divorces after three years or more, both have an equal claim to live in the family home. This is regardless of whose name the property is in. Cohabitating partners do not automatically have this right.

Other Property: Unless they have previously agreed to do otherwise, married couples who divorce share the value of the property acquired during the marriage, as well as any increase in the value of the property they brought into the marriage. For example, Jim has owned a vacation cottage since before he married. If it goes up in value by $20,000 while he is married to Jane, then Jane is legally entitled to $10,000 upon divorce. If Jim and Jane were cohabitating, she would not be entitled to any increase in the value of the cottage. Similarly, cohabitating partners do not share any property that either acquires during the time of cohabitating. If Jane buys an artwork while living with Jim, she does not have to share it with him if their relationship dissolves. If they were married, Jim would be entitled to half of the value of the artwork. But note! Even if they are not married, if Jane contributes financially to the upkeep of the cottage, or Jim contributes some funds to purchase the artwork, the situation may be different.

Child Support: Children have the right to a relationship with both of their parents, and children have a right to be financially supported by their parents. This is true whether their parents are married or not. In some cases, the courts have ruled that if a cohabitating person has treated a partner’s child as his or her own, the child may be entitled to support from that partner.

Spousal Support: This is probably the trickiest area of all. Both married and cohabitating partners who break up may be entitled to support. A recent decision by the Supreme Court of Canada has set out a new framework for resolving property and support disagreements between formerly cohabitating partners. The case in question centered on a woman who moved out of the province to be with her partner and left a job to raise their children. Although the couple was not married, the court decide to treat their economic activities as a “joint family venture.” She was found to be entitled to half the increase in value of the couple’s assets, which amounted to about $1.5 million.

Inheritance: If a married person dies without a will, the surviving spouse is ordinarily entitled to part of the estate. If the couple is not married, the surviving partner does not have an automatic claim on his or her partner’s estate. If the surviving partner has helped pay for property that is in the deceased partner’s name, he or she may have to go to court to prove this before the estate can be settled.

I have taken most of this information from What You Should Know About Family Law in Ontario, a publication of the Attorney General’s Office. I am not a lawyer, and I don’t intend for this posting to be taken as legal advice! Family law is incredibly complicated. I’m told that even lawyers who work in other areas of the law find family law to be difficult. To find information relevant to your particular situation, you must consult a lawyer.

Next time: I’ll write about “cohabitation agreements” for unmarried couples.

Conflict Resolution and Business Ethics

Elemental weights
Photograph by Mike Smail

Conflict resolution is an ethical issue because how we treat one another, including how we treat others with whom we are in conflict, involve ethical considerations. In business, conflicts and the ethical and management challenges they present can arise in a number of areas:

Between two or more organizations: Between a business and its suppliers – who absorbs the extra cost when a shipment is delayed because of an unexpected storm?
Between a business and its sub-contractors – what to do when the terms under which contracts were written no longer apply?
Between business competitors – how to resolve intellectual property disputes?

Within an organization: Between employees and management – over wages, benefits, working conditions, and everything else.
Between different divisions of an organization – what should be done when the “creatives” disagree with the “suits” or when the sales team is frustrated with the software engineers?
Between two or more employees. (See my earlier post on microwave ovens as a major cause of inter-employee strife!)

Between a business and its customers: What counts as a “fair” policy in the case of unsatisfactory products? Does caveat emptor apply across the board?

Between a business and the community: What is adequate compensation for environmental damage? (Remember the BP oil spill?)
How much should a profitable company give back to the community?

For many of these issues, the initial response might be, “Call in the lawyers. Find the extent of our legal liabilities or entitlements.” Or: “Look up the company policy. What are rules around this?” For some issues, this kind of information will be crucial. But what an organizations does with this information and the response it makes will be crucially important. For some, the default response is an adversarial, hard-nosed, “take no prisoners” approach. What are the likely consequences? One of the parties in the dispute might win big; the other might have to make concessions. It is more likely that neither of them will get everything they sought. In any case the relationship is probably finished. Each party will then have to expend time and effort building new relationships, probably at great cost.

A less adversarial approach to conflict resolution can help preserve and even strengthen relationships. A great example of this was the intellectual property dispute between Digital and Intel back in the late 1990’s. Digital filed a patent infringement suit against Intel; Intel filed a lawsuit seeking the return of crucial documents from Digital. Claims and counter-claims went back and forth and both companies saw their share prices fall. Luckily, while lawyers for both companies were preparing to bring the various matters to court, the directors of Digital and Intel kept meeting and talking. Eventually, working together, Digital’s president Robert Palmer and Intel’s COO Craig Barrett worked out a preliminary agreement that was acceptable to both companies and advantageous to both. I believe that the case is still studied in business school as an example of creative problem-solving and skillful management.

There’s a saying in business that, relationships are worth more than gold. I think that sums up why effective conflict resolution in the business context is both an ethical issue and a management issue.

No Girls Allowed?

No girls allowedRecently a Florida lawyer has been getting attention because he refuses to represent female clients. Kenny Leigh built his practice, now employing ten lawyers, with the slogan: “Men only. Family law only.” Mr. Leigh does not have anything against women, he says. The problem is that Florida family law is systematically biased against men. The Florida bar association, which must approve legal advertising, has asked him to drop the “men only” slogan, but it won’t take action against him unless someone files a discrimination suit. (Ontario lawyers who advertised their refusal to represent clients based on sex would likely run afoul of the Ontario Human Rights code, not to mention the Law Society of Upper Canada).

I can’t comment on the fairness of of Florida family law. All too often when someone claims that the law is unfair or that a particular judge is “biased,” what they really mean is, “I’m unhappy that I didn’t get what I wanted.” Some of Mr. Leigh’s critics were particularly upset by his admission that not all of the fathers he represents are “good dads”. He explains, “If I had to base my practice on just good dads, I’d be broke.” It strikes me as misguided to criticize Mr. Leigh for his willingness to represent “bad” fathers. We don’t expect criminal defense lawyers to represent only the innocent. Anyone in family court who needs a lawyer, “good parent” or not, should have access to one.

Mr. Leigh may be a particularly assertive “single sex” lawyer, but he isn’t the only one. David Pisarra is a California lawyer who also focuses on male clients, but for different reasons. Pisarra noticed that men and women approached legal issues differently. When he represented female clients in family law cases he found that they required a lot of emotional support. Meetings would go on for hours because he spent so much time discussing his clients’ personal problems. He found it uncomfortable to be pushed into a therapeutic role. Men, in contrast, didn’t expect their lawyers to be a source of emotional support. Pisarra found he could be blunt and direct with his male clients, and focus on legal tactics. And that is how he prefers to work.

I think that there are good reasons why a lawyer (or other professional) might want to create a niche for themselves working only for a specific clientele. Both Leigh and Pisarra claim that their specialization allows them to be more effective at what they do. What I found more disturbing about Leigh than his sex discrimination were the attitudes he conveyed about family law: “It’s gloves off. It’s nasty stuff.” So divorce and family breakdown – already very difficult times in the lives of families and children – are characterized as a sport and (worse) as a violent contest. Now, I can imagine situations where family law disputes call for aggressive tactics. But we’ve seen again and again that hostile legal proceedings can make bad situations worse. They make it difficult or impossible for divorced couples to co-parent their children, they cost families a great deal of money, and they prolong emotional turbulence. Aside from the lawyers, does anyone benefit from drawn-out and antagonistic court proceedings? These are just some of the considerations in favour of mediating rather than litigating family law disputes.

Why use Workplace Mediation (as opposed to another solution)?

When I took my mediation training, several of my fellow students were already working in human resources or employee relations. Despite their different perspectives, they could all agree on one thing: microwave ovens are a major source of conflict in the workplace. Whether one person is warming up food that another finds smelly, or someone else is hogging the oven so no one else can warm up their lunch, the microwave is all too often a source of tension.

I found this surprising at the time and I was reminded of the microwave-as-flashpoint when I read about the recent Superior Court review of an Ontario Human Rights Tribunal (OHRT) decision. In the original decision Maxcine Telfer, a small businesswoman, had been ordered to pay $36,000 to a former employee because of alleged discrimination and harassment. Among other things, the OHRT arbitrator found the staff microwave use policy to be discriminatory. The complainant said that she began to feel targeted after her boss complained about the smell when she warmed some curry in the microwave. Apparently Ms. Telfer is extremely sensitive to smells and the office had a strict “no scents” policy in place.

Conservative commentators have had a field day with this story, and I won’t say more about the original decision or its reversal by the Superior Court. What I found most interesting about the episode was how a relatively trivial matter can blow up into something much more serious. If they’re fortunate, employees will find ways to get along despite microwave abuse and other sources of tension. But what to do when a low-level conflict intensifies? Usually it isn’t possible or desireable simply to fire or transfer everyone involved in a conflict. Better yet, how to devise policies in such a way as to avoid unnecessary conflict in the first place?

Workplace mediation can help. In mediation, each party in the dispute has a chance to express their point of view. Parties get the opportunity to listen to and understand each other’s perspective, and then work together to come up with creative ways of resolving their difficulties. Bringing in a mediator to facilitate discussion, whether this means an outsider or someone already in the company with mediation training, is a good idea for a number of reasons. Research indicates that people are more likely to respect a policy or decision that they have had a hand in crafting. If the boss simply devises and hands down a policy inevitably there will be someone who doesn’t feel that their concerns were taken into consideration. This can be bad for morale. A policy that the boss has devised without fully consulting employees may not really address all of the issues that are important to them. A group of people working together is more likely to devise a workable solution than a single person working alone. Moreover, while having a fair and reasonable, say, “microwave use policy” may be the single most important element in a happy workplace, it is not the sort of thing that most employers will want to spend a lot of time thinking about. Mediation is a way of sharing the burden.

Ethics and the Culture of Overwork

I Want to be a Coal Miner - Cover A friend recently told me that she hadn’t seen much of her husband lately. At first I wondered if their relationship was on the rocks. Instead it turns out that the new head of his division insists on 12-hour days from all the senior people. Now, I’ve put in my share of 12-hour days. When I had my first jobs teaching philosophy in university I had to work very hard and sometimes kept long hours. But I liked the work and I didn’t mind that much. I understood that many people have to keep even longer hours at jobs that they don’t find so rewarding, and I realized that companies sometimes have “crunch” times when they must make excessive demands of their staff.

My friend’s husband – I’ll just call him “Simon” – does not work for a struggling start-up, and he doesn’t have the kind of job (like, say, in a law firm) where there is a direct relationship between the hours he works and the amount of money he brings in. He works for a major company in a profitable industry. And while the industry does provide a socially useful function, it isn’t as if he’s about to find a cure for AIDS or devise a way to stop global warming. Simon is good at what he does and well compensated for it. I suppose that if the long hours bothered him that much he might decide to seek work elsewhere.

So while I understand that 12-hour (and longer) days might sometimes be necessary, I find it a bit troubling that a 12-hour day is the expected norm. What will they do when a crunch really does arrive – provide sleeping bags and a catered breakfast so that employees don’t even have to go home? I imagine that Simon’s boss has made his demand in order to establish a certain culture in the company. Any ambitious man or woman a little lower down in the hierarchy need only to consider the hours of the senior people to know what they must do to get ahead.

The boss’s ukase strikes me as bad management for a number of reasons. Demanding that employees put in twelve-hour days is not the same as demanding that they do 12 hours worth of work. The jobs that are affected are knowledge-based, requiring creativity and advanced problem-solving skills. It is not the sort of work that you can do effectively for long hours many days at a stretch. This means that some of those compelled to put in a 12-hour day are doing their usual seven or eight hours of work and stretching it out to take up 12 hours. What a waste of time and human potential! It probably also means that some of the twelve hours are taken up by non-productive, time-wasting exercises. I can imagine endless boring and irrelevant meetings and long back-logs of unread emails that one should never have been sent in the first place. When you factor in the stress of long days, resentment at the fact that employees can no longer make time for the gym or other interests, and the added strain on their families, you end up with a pretty unhappy (not to say dysfunctional) workplace.

It is puzzling to me that a company would hire people they believe to be smart and capable, and then treat them like coal miners who must spend a certain number of hours chipping away underground. Let’s set aside the question of whether this amounts to bad management. Are such demands unethical? There are reasons to think so. The company Simon works for is in an industry in which there is a certain amount of hand-wringing at the under-representation of women. I’m willing to bet that every major company in the industry has a policy to address this concern. Insisting that employees regularly spend twelve hours at the office if they want to get ahead is especially hard on women, who often have non-negotiable family obligations. A corporate culture of overwork is just one more barrier to their success.

What to Look for in a Mediator

My friend Valerie says that there is a mediator out there for everyone. With so many mediators to choose from and so many different approaches, how can you find the right mediator for you? Mediation is a confidential process, so it’s unlikely that you’ll be able to see a particular mediator in action before hiring. You can ask around or look for reviews on the internet, but that won’t necessarily lead you to the right person for your conflict. Even the mediator who helped your best friend won’t automatically be the best one for you.

Whatever qualities you feel are important in a mediator, probably the best place to start is with the professional association of mediators in your area. In Toronto, that would be the Alternative Dispute Resolution Institute of Ontario. A mediator who belongs to such an organization has made a commitment to the profession and to professional development. Depending on the rules of the organization, he or she will have been educated about the causes and dynamics of conflict, and about different approaches to conflict resolution. If you are looking for a mediator to help you facilitate a separation agreement or divorce, you should look for someone who has had training in family mediation. Such training usually includes an over-view of the relevant family laws. Of course, a mediator can inform you about the law but ordinarily will not (and should not) offer legal advice.

Very broadly speaking, the main difference among mediators is whether they take an evaluative or a more facilitative approach. Mediators who are strongly evaluative will not hesitate to tell you their views on your dispute and what they think an appropriate resolution would be. Mediators who are more towards the facilitative end of the spectrum may offer suggestions to help you solve specific problems, but their focus will be on helping the parties in the dispute arrive at their own resolutions. The thinking behind this approach is that the parties involved are likely the most knowledgeable about the details of their own situation and so the best equipped to come up with durable solutions. There is also a good deal of evidence that people are more likely to respect agreements that they themselves have had a hand in crafting, rather than settlements that have been foisted upon them.

It is perfectly acceptable (and probably a good idea) before you hire a mediator to ask about their training and about their style and approach. Whatever the nature of your conflict, it is crucial that you feel comfortable with the mediator and can develop a sense of trust. Even over the phone, you should have the feeling that the mediator is really listening to you, not just waiting for you to stop talking. It is very important that a mediator give the impression of being impartial about your conflict from the beginning. He or she will listen sympathetically but will not readily take your side no matter how compellingly you present it. Don’t be disappointed about this. While it is understandable that you would want an ally in an emotionally charged situation, do not try to put a mediator into that role. Mediators are able to do a better job in the end if all parties respect them as neutral in the dispute.

The Alternative Dispute Resolution Institute of Ontario currently has about 850 members. Whether your conflict involves a business, family members, co-workers, or the whole neighbourhood, one of them will be the right person to help you.