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Why NOT doing Dispute Resolution Training is a Disservice to Your Clients and Their Kids | Season 2 Ep 26

Uncategorized Nov 01, 2021

Why NOT doing Dispute Resolution Training is a Disservice to Your Clients and Their Kids

 


I was reviewing some correspondence on one of my client files. I saw one of many examples of why lawyers who are in family law must do dispute resolution training. I mean, I wonder why we are even allowed to do family law if we do not have this training.

When I say dispute resolution training, I mean mediation skills development, dealing with high-conflict cases, negotiation skills training, conflict resolution training, interest-based negotiation skill development, etc. You know, like all the stuff we did not learn in law school.

Some people call such training ADR, as in alternative dispute resolution. There is nothing alternative about it.

I have been dealing with a lawyer. He seems like a nIce enough person, however, he does not realize the damage he is causing to this family. He is causing damage because his positional communication and threats to go to court are helping nobody, including his client. His communications cause my client a huge amount of stress. At the same time, if he goes to court, he is going to get nowhere and that will cause his client huge disappointment.

My client left her relationship while pregnant due to family violence and the controlling nature of her baby’s father. The baby’s father wants to have parenting time with the child and do so on an unsupervised basis. The father says that although he had some problems in the past, he has now worked on himself, done courses, and attended training to abate future family violence. The problem is that my client believes that most, if not all, of his course work and counselling, was done prior to the parties’ separation. She is reluctant to expose the parties’ young child to the father’s temper which is significant.

At an interim court application, it became very clear to the Judge that the father had some very significant anger challenges. He asserted to the Judge that his anger challenges were all dealt with because he had done anger management counselling and training, among many other things. The Judge stated that before the matter moved forward that getting information as to the father’s training and counselling post-separation was necessary before the matter moved forward.

Did he do the counselling prior to their separation or after? If he did the training prior to the separation, it did not do him (or our client) any good. Our client says he was very violent (giving many examples) and controlling. He is a very scary person and lacked any impulse control whatsoever.

Finally, after many months, we received a letter from the father’s doctor setting out all the training he had taken. Clearly, the father had engaged in anger management training, however, the very detailed letter had no dates. The dates of the training he had done were conspicuously missing. What the letter was missing was the information as to when the training was taken.

So, I wrote a letter to the lawyer:

 

We have had an opportunity to review the well-written and thoughtful letter of Dr. Jones (client name is changed) . . . We note that the anger management counselling appears to have taken place prior to your client's relationship with (our client) and not since their separation. 

Although the letter of Dr. Nazil is helpful, it makes sense that we would have documentation and records of all training, appointments, courses, or sessions that (the father) has attended since July 2018, when (the parties separated).

The other lawyer’s response was to ask to set court dates rather than engage with me.

So, I wrote another letter:

Many of the steps you have reported occurred prior to the parties' separation. It is the work he has done post-separation that is important.

Before setting a date for (more court), it will be important for us to have this documentation.

The other lawyer’s response was to set court dates.

Our office wrote another letter:

We have written to you (on two previous occasions) asking what work your client has done since separation. Our client notes that a lot of the work he has done (if not all) predates the parties' separation. The court is not then assisted.

The other lawyer writes me back:


In reply to your email, (the father) is not obliged to complete any certifications on any timeline and the assertion that he needs to is unsupported by any facts.

I expect dates to continue (court) in a timely manner.

So, I tried again and wrote:

During (previous court), the issue of family violence was raised as the reason why (the mother) had been insistent upon (the father’s) visits with the child being supervised. There are significant concerns regarding (the father’s) anger and inability to regulate his emotions.

(At court, the father) made assertions that he had participated in both anger management courses as well as extensive counselling. As the Judge also seemed to have concerns about the possibility of family violence, the request was made to have documentation of (the father’s) sessions and courses available to our offices for review. We have been requesting this documentation since (for a full year now) and have yet to receive any records of such.

My sense is that should we schedule (further court) without any of the requested documentation from (the father) this matter will again need to be adjourned until further information is presented.

Please send over records of (the father’s) anger management courses along with records of any sessions with mental health professionals. This will greatly assist the matter in moving forward.

His response to me was:


It seems to me we are at an impasse, as your client has raised concerns around my client’s alleged anger issues without evidence.



I would ask that some evidence to back up her concerns be tendered soon or I . . . we can have a trial on the issues.

And then he said:

 

I see from your letter that you refuse to take my requests for evidence seriously, I will apply to move this to trial

 

I again wrote:

 

I am wondering if you are able to advise me what has changed since the last time we appeared at (court) ? If it is new information, we can certainly review it and consider it.

 

He writes back:

 

I see from your letter that you refuse to take my requests for evidence seriously, I will apply to move this to trial.

 

What is significant is that every time our client is forced to look at any correspondence in this matter is that she is flooded with stress. Essentially, she is having a cortisol bath, that is being bathed in stress hormones. Because she is a single parent with no other support, her stress impacts not only her but her young child. None of this is good for anyone.

I know for a fact that when we attend court again, the court is going to ask the father the same as they asked before: What work have you done to resolve your anger management challenges since separation?

Would it not be better to avoid this whole entire dispute and get on with what needs to be done rather than fight a losing battle causing everyone unnecessary stress and pain?

Would it not be good to have a discussion on the phone?

You can see our conversation literally going around in circles, with no progress. You can also see that for each party, their frustration is escalating.

In my experience, once I learned dispute resolution skills, I was able to listen and explore what the other side was saying rather than simply being positional or parroting back my client’s position. To be clear, we are in the process of preparing a detailed affidavit setting out the evidence of my client and, yet, as I review the correspondence in more detail, I realize that I have also been repeating myself over and over. Sheesh . . .

Picking up the phone would have been better . . .

 

 


In this Episode:

  • Why are we even allowed to do family law if we do not have this training? [00:01:08]
  • Some people call such training ADR, as in alternative dispute resolution. There is nothing alternative about it [00:02:43]
  • I have been dealing with a lawyer and wrote a letter to request for further information. [00:10:40]
  • When I learned dispute resolution skills, I was able to listen and explore what the other side was saying rather than simply being positional or parroting back my client’s position [00:15:27]
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