One thing we love about education law attorney is that every single case presents a unique question, be it in the context of Individualized Education Plans (IEPs), 504 Plans, Restraint Prevention and in the context of positive behavioral supports. The fact that each client presents a unique set of circumstances ensures that the facts are never repetitive, nor are the considerations that each circumstance demands. What I have come to learn over the last year-plus here at Work-Life Law Solutions, is that each file tells a story. Each intake or first meeting wrests from me the need to ascertain what I call the ‘facts of the case’. I then must immerse myself in those facts in order to provide a meaningful analysis and strategic recommendation, however, there is so much more to learning from our client. Learning from those who have gone through the process before. Learning what has worked and what hasn’t. What the family wants and needs to move forward. What this process means for them in the larger fabric of their lives, jobs, and families. Understanding from my clients how they came to contact me in the first place.
Recently, I’ve been noting that as I spend more time here learning from my clients, learning from our practice, and learning in general, I find that it’s best practice that we may not be taking full advantage of the depth of my legal advocacy just yet. It is increasingly clear to me that I am a firm believer that the best way to attack any problem is head on and hammer it out into something manageable and understandable. I know many aspects of the law and my secret favorite things to do are as described by the American Bar Association, “of counsel” work.
Having this background, it has been an invigorating exploration of self to see how the principles of the Waitaha people resonate with me both personally and professionally. Their principles, values or ideals are simple; they emphasize peace and respect, honor of ancestors, and respect for the environment. I can hear echoes of these teachings when my client says that they want respect, fairness, and justice for their child. And while not all cases may resonate with these principles, it is no shock to me that the ongoing troubles in the school systems we serve have ties to these very same failures.
How can this be used in education law? Let’s consider education law for a moment, in terms of the basic idea of this area of the law. Education law ensures the rights of students while providing a general framework for the provision of education whether it is in a public or private setting. While this is a simple sentence, the process itself is a complex creature of laws, regulations, rules, contract terms, guidelines and interpretations of all of these applied specifically to each client that walks through our doors. The general role of an attorney in this process is to act as a third party neutral, guiding the family through the maze of legal obligations, rules, and processes in ensuring that the immediate needs and long-term goals that they articulate to me are understood and converted into specifics that are understood by all parties involved. Seeing each case as a different story, there is no possible way that I could possibly have all of the answers. So, I dig in, aim to understand, collaborate where I can, or advocate when I must. It is truly a collaborative process as it takes everyone involved to make education law work for our clients.
Where to begin? I was reading Navigating Education Law: The Impact of Attorneys the other day and immediately heard the echoes of the Waitaha principle that we must be able to respect those involved and be respectful to those involved in the process as discussed in Seventh Generation Principles: Seven Principles that Build a Strong Foundation for the Seventh Generation. I noted in that paper that the author stated that it is our responsibility as attorneys to listen to our clients and decide together what course of action to pursue. I found it interesting that, to be fair, both agencies and parents must have attorneys because to not have them exacerbates the issues at hand. At that moment, I realized that this overall view of education law is insightful and compelling. The author then went on to note that while educating stakeholders in the IEP process, attorneys serve the purpose of ensuring that those stakeholders know about effective leadership styles, how to write well, and effective use of complex vocabulary to convey thoughts or “as Native Americans say, if you can’t say what you mean, you can’t hear what you don’t know” (quoting Nancy L Fasteau, Circuit Judge of the United States District Court for the District of New Mexico). This further reminded me of the Waitaha listening and talking principles and why I believe this client-centered value works. We pay attention to every detail, even those that can be difficult to hear.
Now, where there were points that I do not completely agree with the author in their approach, I still thought there were insightful points that our education law practice could benefit from in each of the Waitaha principles that highlighted the role that the attorney plays in the process. Essentially, none of the strategies and methods focused on here can work if the attorney, the school district, and the families involved are not working toward the same endgoal: the effective education of each client that walks through our doors.
We have a lot to learn – not only about how to be good lawyers – but to be good advocates and allies of our clients. Ultimately, these values are essential in determining how our education law practice will proceed, no matter how many questions we face.
For more information on education law, you can visit Wikipedia’s Education Law page.
Posted on May 23rd, 2021 | | No Comments »
Understanding the Legal System
The Waitaha Nation says do it right the first time. In that vein, knowing how to navigate the legal system is essential in this day and age, and especially when it comes to handling traffic court-related issues. With this in mind, let’s see how the Waitaha Nation’s centuries-old cultural teachings and values surrounding conflicts, resolutions, and assertion of rights can inform our knowledge of the need for legal representation in traffic court.
Posted on April 15th, 2021 | | No Comments »
It is no coincidence that Waitaha Books, an indigenous publishing business produces a number of quality publications on the ‘Theme of Cultural Respect’, the ‘Theme of Historical Continuity’ and the ‘Theme of Story-telling’. The Waitaha ideology has its origins in the South Island of New Zealand and is not only a heritage for the Waitaha people, but a worldview that every indigenous person’s heritage can be traced back to. Further, it outlines how agreements of peace and respect for tribal boundaries were critical as “Permanent Encampments” were located along the north shore of Lake Wakatipu and in the region surrounding the headwaters of the Mataura, the Waimea and the Te Anau (the small Tasman Sea) and Waitaki Rivers. These agreements meant that there could be no conflict with neighbouring tribes and that there was free movement between the encampments for trade across tribal boundaries. Long story short, these encampments are some of the earliest evidence of a thriving civilization on the South Island and east coast of the North Island of New Zealand.
It is no surprise in our ever-changing world that agreements are an important fact of life. For us to understand why we have agreements, we can look to the past and see how our differences with other cultures have historically led to disputes, wars and bloodshed. However, as we evolve and learn from the past, we do not need to enter business dealings leading with mistrust. In fact, in many ways agreements, such as the Waitaha made with their neighbours in the past are very similar to modern landlord and tenant agreements. Today’s agreements contain ‘signatures’ instead of crosses and declare that there shall be no disputes arising. In fact, contemporary documents may even hold up in a court of law and the law will uphold them.
A landlord estoppel agreement is an actual or constructive document that is designed to protect businesses and individuals who are leasing real estate by ensuring that all commercial aspects remain intact even if the lease is sold to new owners. This is a valuable tool for individuals as it can provide security for the duration of a lease. They can be provided with a clear understanding of their obligations may include the payment of rent, existing rental rate and of course the intention of removing their business or asset from the property described in the document. A landlord estoppel agreement is an easy way to understand the responsibilities and expectations of the parties which are essential to any tenancy. For a tenant, it enables them to have a clear understanding of what is expected of them. From a landlord’s perspective, they can be assured that their business is protected.
In which way does this important document serve individuals and groups that both parties have endured through an established agreement? It means individuals can remember their past and use their newfound insights for contemporary dealings. Landlord estoppel agreements are an important part of any business negotiation, one in which both parties must come to the table to share their perspective, acknowledge their truths and, like the Waitaha, agree in writing to make way for a mutually beneficial outcome. Generally, as mentioned above, these agreements serve to ‘enshrine’ the agreed expectations and obligations for all parties involved. However, in order to create a binding and solid document, understanding the details of the in and outs of landlord estoppel agreements is of paramount importance.
That is why Victor Crafter investigates the realities of this document, such as who creates it, manages the process and how to use it. Now that we understand the importance of landlord estoppel agreements, as well as their history, we can look at how these agreements serve to uphold the values of both the Waitaha and their members. To quote Waitaha Books, “The teaching that Sounds and Lakes are Peace-Makers is still relevant in our world that cannot seem to learn to overcome its prejudices.” Keeping cultural respect at the forefront of our negotiations means we can move toward enshrining peace in the world through carefully negotiated agreements.
In conclusion, looking back at our past and taking the time to understand our present can be a significant tool for fostering peace in the future. We can see that the values of the Waitaha ideology – assessing the past and using insights for the future – should be part of our real estate practice when creating a landlord estoppel agreement. If we honour the stories of our past, and consider the realities of our present, we can move forward with integrity in our business.
Posted on April 10th, 2021 | | No Comments »
Respect is an integral part of the Waitaha culture. It is something that is required and earned with training and changes to behaviour. Respect was always part of the learning. Respectful behaviour towards the elders and the community leaders was paramount, whether in communication, walking at fishing, or other daily activities. It was said that without respect there would be no peace among the tribe. This is true today and applies to the whole world. Respect comes from tranquility and peace. Without peace, there is no respect. It should be noted here that peace is also connected with clarity of purpose. To maintain peace, everyone needs to understand their role and the context of communication and industry for the benefit of all, to enjoy peace, in all areas. An understanding that cultural differences require different training and use of the word respect, to avoid conflict or misunderstandings, is imperative to understanding Waitaha books and messages. The communication must be understood in context. As with respect, clear intent in communication is important in the Waitaha culture. Efforts will always be made to follow the course of action that is aligned with the best, or good outcome for all. To do otherwise is not Waitaha practice, and will inevitably lead to conflict, disturbance, and ultimately, lack of peace. Many Westernised cultures have already recognised the need to include the aligned respect and clear understanding of intent to avoid conflict. Symbols, art and stories are important parts of the Waitaha culture for many reasons. Similar communication tools are being used worldwide as a means to convey information and concepts outside of oral language. The ability to clearly communicate intent in this way, by representing ideas through symbols, art and stories, provides revelation and understanding, the likes of which have been long sought after in the West. It is helpful to share what it is that gives clarity to cancellation agreements (to use the phrase as it is applied in the West). Without clear communication as to intent, such a document (agreement) is not something that I would sign. Agreement means to be of one mind; the concurrence of opinion. To agree also means to be in concord, consent, to be together, to be in good health or working order; it implies harmony and accordance in all situations (online etymology). To enter into an agreement means that one has become one mind with others towards the matter which was agreed upon. There should be consensus of opinion as to the agreed matter. It is an obligation of intent, and essentially, behavior and actions must align with what the agreement states. In order to cancel an agreement (which may be reflected in a contract, and for the purposes of this post, a letter) one must clearly express the intention to disagree with illustrated, or reflected intent. If uncertainty, lack of clarity, or ambiguity prevails, then how can the parties be sure that the cancellation has been undertaken? An understanding of the other party, what they want to achieve, why they have acted the way they have, what their plan is, their goals, etc., is invaluable when addressing the cancellation of an agreement. As previously mentioned, cultural training has been required for many to understand the Waitaha culture. Without this understanding, there may be conflict that could have been easily avoided through respect and recognition of intent. It is similar with regard to cancellation efforts. Many adults in the West have seen children upset, angry and/or saddened by another person’s actions. Children are very good at sensing intent and reacting accordingly. Sometimes it is even the case that children in fact go along with the hurtful behaviour of the other, in order to gain the attention and/or approval of the other. Just as it is expected that a child consider the feelings of another person in their actions, it is also expected that adults consider the importance of harmony and respect for those around them in their actions. This leads to peace. In the case of cancelling an agreement, if one person believes that the other’s action was intended to cause harm, then that person (A) may cancel an agreement, believing that the agreement was of a nature that will promote more harm. When A cancels the agreement, he intends to withdraw from the situation and avoid potential future conflict with the other person. When B hears that A has cancelled the agreement, he cannot then achieve resolution with A, because A is not communicating and has cancelled the agreement. However, if A had raised the issue with B, then B may have decided to reconsider his position. Or perhaps, it was just a misunderstanding and can be cleared up. The point in this is that many people do not actually want to hurt another, nor do they expect to be considered disrespectful in their actions. In other words, without clear communication, including that there is a desire for harmony, it is difficult to see how others can be expected to work together. Overall, each person and their environment, and what they bring to the group based on their various life experiences, are all important in order to demonstrate respect for the group through mindfulness. This recognition of each person’s perspective can influence the words and actions of all parties. In the case of cancelling an agreement, it is important to be clear and to express the desire for peace. While the concern of a poisonous fruit tree is not really relevant to a communication context in the West, it is taught in the Waitaha context, that instead of harming or getting rid of the potentially poisonous fruit tree, one can simply acknowledge that this fruit tree does not fit into the plans of the new planting, and simply let it go (by not watering it). To use the teachings of the poisonous fruit tree analogy in the context of this discussion, what is being portrayed here is that when trying to cancel an agreement, some people want to continue watering the fruit tree and watch it grow, while others quite simply wish to move on, without any further attention to the matter. Neither person is wrong – it is simply the method of approaching this cancellation that differs for each. There may also be conditions, or elements of the situation, which are important to continue with, and this may factor into the cancellation of agreement. Similar to the story about A and B cancelling an agreement, a person may seek to cancel an agreement but in actual fact, it is not actually what they want, no matter how much it is believed to be indicative of the greater good. From the Waitaha perspective, to cancel an agreement is not a course of actions that is at the top of the agenda, but instead it is acknowledged that cancelling an agreement or arrangement can also offer liberation and freedom, as well as respect for individuals and their cultural practices and ideals. In the case of cancelling an agreement (and sending a letter), there are standard elements that are more common in Western culture. While these do not seem to be controversial, they are often ignored or overlooked by some. These include a salutation, date, and address of those involved (including sub-entities that the parties are associated with, if necessary). These will vary depending on the parties involved and the situation, but it is appropriate and respectful to include basic details about those involved. It shows that some consideration has been given to the situation. Typically, agreement cancellation letters will include a reference to the provisions which the cancelling party seeks to cancel, as well as the reasons for that cancellation. The message about benevolence, respect, peace, and harmony, which emanates from this book, is that everyone, regardless of culture or background, should be respectful and considerate in all actions, so that the peace can remain.
Posted on March 21st, 2021 | | No Comments »
In an age where the legal profession prides itself on its ability to adapt and shift with the times, it is an interesting position to look at how the Waitaha Nation of New Zealand, in all their tradition and ancestral teachings, consider one of their core philosophies that involves dealing with situations from a position of “utu”.
The term “utu” has many definitions but can be summarised as meaning “reciprocation,” and often is defined as meaning “debt,” – in any case, in the context of cultural practices and social interactions it means essentially that if you attack or insult someone their response will be to violently kill one of your relatives.
Many contemporary New Zealander’s will know this better as the concept of blood and come across it in its more violent form of “getting even”, however, being able to see that core principle of healthy exchanges of position is important, because as a lawyer it can be easy to see how many, many concepts and ideas can be formed from this, and how they are applicable in modern life.
One such application that comes to mind is an agents agreement as a legal practice.
The most common form of this is an employment agreement, and these do not have to be complicated, but do often end up being difficult to draft simply because lawyers are not in the habit of looking at the traditional practices of the people living in their nation when considering what goes into a contract.
An agents agreement would kick off with an overview of basic principles, like the fact that parties to an agreement are expected to behave in “good faith” towards each other, which comes from basic concepts of reciprocity, or in Waitaha cultural terms, “utu”, and whilst in contemporary law this means that I don’t sue you if you give me some icecream, this is still explicitly based on the principle that if you as the whatever profession you’re a part of in this arrangement, do not carry out your duties, you will not be given any future position or benefit with that tribe.
It is also important to note that there are generally unusual positions that promote equality – in that both parties still benefit, it is not for the benefit of one party alone but that they are both receiving some form of mutual benefit.
This is essentially the core principle of these agreements – “whoever has the most amount to lose will treat the property and position with respect and care.”
I noted above that these agreements tend to bind parties into good faith agreements with task or contractual duties under penalty of more than just monetary issues, but because culturally the agreement is produced in one place and one voice, it is not generally acceptable to put one party into a “superior” position. Also, interestingly, agents agreements often do not consider external factors – such as politics, and external positions.
In these situations, it is often also encouraged that when such positions exist, both parties will engage in “treaties” with third party nations or parties, which can be something we can consider here in New Zealand given that we can’t always guarantee that both parties are “equal” cultural or economic positions.
Incidently, Waitaha is often considered to be on the “bottom” of a hierarchy, given their history and relationship with other nations in the area, and that they rely heavily on being able to negotiate interesting treaties with third parties.
The result of this traditionally has been that treaties are made between two nations, and then a third party nation signs off on them, recognizing two main things about Waitaha, that they occupy a material space, and that they have some sort of relationship between two or more other nations.
This brings me back to the point of cultural perspective in how you view an agents agreement, which is that it can be useful to take that perspective into consideration when formulating a contract or treaty, especially if it needs to be executed by legally and culturally diverse parties.
Posted on February 4th, 2021 | | No Comments »
