Defusing Divorce

I heard an interesting comment at a training I went to recently.  The trainer offered the very interesting idea that coming to a compromise represents a failure to actually resolve the conflict.  This made me stop and think, because as an attorney I am conditioned to think of reaching a compromise as a success.  This really goes to what we think of as “resolution”.  Coming from a litigation perspective, a compromise is a resolution because it ends the issue – i.e. it is resolved.

From a Collaborative perspective, the goal is somewhat different, so the definition of “resolution” is somewhat different.  In Collaboration the goal is not just to get to a solution, but to find the best solution – one that meets everyone’s interests.  From that perspective, a compromise is a solution that does not really meet anyone’s interests, and doesn’t really work for anyone, but is simply agreed to as a way to wrap things up when the parties feel stuck.  Success on the other hand means moving beyond stuck to create a solution that does truly meet everyone’s interests.

One danger in a compromise that no one is happy with is that it may be very fragile.  If neither party is happy with the result, the agreement will likely not be very durable, as neither party has much buy-in to the agreement and will always be looking for a way out.

What do you think — is coming to a compromise a success or a failure?

An interesting issue was raised recently about the use of subpoenas in Collaborative process.  Normally there is no formal discovery in Collaborative cases as the parties agree up front to voluntarily provide all relevant documents.  The issue was raised in a case where there were trust issues such that one party had a desire, as I understood it, to subpoena documents from 3rd parties to ensure full and accurate documents were provided.  My guess is that this would be involving financial records from banks or investment brokers.

Some people questioned whether Collaboration can work where there is a lack of trust.  My own feeling is that Collaboration is a process for managing conflict, and therefore lack of trust is a normal issue we need to deal with in Collaborative cases.

From that perspective, I think use of subpoenas can be entirely appropriate when needed.  The subpoenas help both parties feel more comfortable that all requested information has been provided.  What is different about the use of subpoenas in a Collaborative case is that the use of them should be discussed openly and agreed to by both parties.  It might even be best if the subpoenas are signed and issued by both sides jointly (or they might use joint disclosure authorization forms as well).  If the attorneys start with joint voluntary document disclosures followed by subpoenas, this might even help the parties to build trust when the subpoenas do not do not reveal any more information than was already disclosed.

While Collaborative Practice started out as a process involving two attorneys and two clients, more and more attorneys now employ a team approach.  The evolution seems to be that as attorneys become more experienced in Collaborative Practice, the more the usefulness of having a full team involved from the beginning becomes apparent.  Therefore we often see that when Collaborative Practice takes hold in a new region of the world, initially the attorneys only bring in other professionals as the need arises.  As Collaborative Practice matures in those regions, however, the team approach tends to take over as the attorneys realize the benefits of the full team.

A full team in my area (Seattle, Washington) generally consists of two attorneys, one or two divorce coaches, a financial specialist, and a child specialist.  Each client has his or own attorney.  The role of the attorneys is to help guide the clients through the process, to provide legal information, and to prepare any legal documents.

The financial specialist is neutral, i.e. works for both clients.  The financial specialist gathers the financial data from the clients and organizes it for the group.  The financial specialist also can help the clients better understand their finances and plan for the future by providing financial information, running projections, and offering ideas for financial planning.

The child specialist’s role is to help clients with children put together parenting arrangements that will best serve both their and their children’s needs.  This often involves interviewing both the parents and the children to better understand the family dynamics and the particular needs of the children, and then offering advice to the parents on strategies to best support their children’s healthy development.

For me, the coach role has been the most difficult to explain to clients, but also the most important.  It is fairly easy to understand the need for a financial person to help with financial issues, and a child specialist to help with parenting issues, but the coach role is less clear.  The coaches come from mental health therapy backgrounds, and they provide insight into the couple’s relationship with each other.  I think of a divorce as an iceberg – 1/10 is above the surface and 9/10 is below the surface.  Attorneys are trained to see the 1/10 that is above the surface – the finances, the accusations, the parenting issues.  Coaches are trained to see the 9/10 that is below the surface – the relationship and communication issues, the emotional baggage, the personality conflicts.  Generally it is that below the surface “stuff” that keeps a couple from interacting effectively and getting past the roadblocks and breakdowns they run into.  It is the coaches who have the tools to help both the couple and the rest of team see what is going on, teach new communication skills, and generally help everyone move beyond “stuck”.

I had dinner with a good friend (who is also a Collaborative professional) the other night, and he raised an interesting question as to whether attorneys could learn the skills to deal with the clients’ underlying emotional and communication issues such that coaches might not be needed.  Keep in mind that my friend is a therapist and divorce coach.  His thesis (if I can speak for him) was that the coach work is not about esoteric skills, but about listening, compassion, and understanding some basics of human dynamics.  My own reaction is that my friend is such a brilliant therapist that he sees his job as easier than it really is.

For me, I find the idea of doing a Collaborative case without a coach to be positively frightening.  As an attorney I feel equipped to deal with the 10% of the issues between the couple that is above the surface – asset division, parenting plan, etc. – but not to deal effectively with the 90% of the issues that are below the surface -  the anger, pain, disfunctional communication patterns, etc.  I feel like I need a coach with a family therapy background not only to help me understand the dynamics between the couple, but also to help the couple find ways to work together effectively.

I do find, however, that some couples need more coaching than others, just as some need more help with financial, parenting, or legal issues than others.  In some cases it may be enough to have the clients meet once or twice with the coaches so the coaches can give some basic direction to the clients as well as some feedback to the rest of the team about the family dynamics, and in some cases it really helps to have the coaches at the discussion table with us to intervene in real time when tempers rise and communication begins to break down.

Eventually my friend and I agreed that what makes sense is to start cases with coaches involved, but to leave some room for individualizing how much help is needed or appropriate in each case.

One of the biggest issues we face in practicing Collaborative Law is getting the word out that this is even an option.  A typical new client in my office is thrilled to find out there ARE options to fighting, options to the warfare model of legal dispute resolution.  The problem is that before they found our office, they often did not know that these options existed.

The Public Outreach Committee of King County Collaborative Law has started an initiative to reach out to other professionals in our community to let them know how the work that we do can benefit their clients, customers, friends and family.  I was therefore quite happy when I ran across an excellent article on this topic from a Collaborative attorney in Ontario.  Author Brian Galbraith, in his blog  OntarioFamilyLawBlog, said:

Why should you refer your divorcing clients, patients and friends to a Collaborative lawyer?

Here is why….

Doctors, Dentists, Health Care Practitioners: You know that a divorce battle is one of the most stressful events in a patient’s life, especially for their children. You give your patients the gift of a less stressful way to divorce, promoting good health,  if you refer them to a Collaborative lawyer. You will be a hero.

Marriage counselors, therapists: You know the destructive impact of divorce battle on families, especially children. You are giving your clients the gift of a healthier way of untangling their relationships with better prospects for a healthier relationship post-separation when you refer your clients to a Collaborative lawyer. You will be a hero.

Non-Family Law Lawyers: You know that a good referral to a client will solidify their trust in you. You can’t give a better referral than to a Collaborative lawyer who uses a process that costs less, results in better settlements, is less destructive and is faster than the court system. You will be a hero.

Accountants, bookkeepers, financial planners, bankers: You know that a divorce battle can result in the destruction of the wealth you helped your clients accumulate and tear apart relationships between business partners. You give your clients the gift of a faster, more cost-effective way of resolving divorce issues thus preserving your client’s wealth when you refer them to a Collaborative lawyer. You will be a hero.

Real estate agents, mortgage brokers: You know how difficult it is to facilitate a sale or purchase of a home when your clients are in a court battle. You give your clients the gift of a smoother resolution of divorce issues, including those related to the sale of their home, by referring your clients to a Collaborative lawyer. You will be a hero.

Priests, Rabbis, Ministers: You know that divorce is a reality for many in your congregations and can bring out the worst in them, leading them away from their faith. You give the members of your congregation the gift of a way of resolving divorce related issues that is more peaceful, respectful and dignified when you refer them to a Collaborative lawyer. You will be a hero.

Hairdressers, bartenders, personal trainers: You know all the stories of destruction and unimaginable costs to individuals, families and children by divorce battles. You give your clients the gift of a less destructive way of separating when you refer them to a Collaborative lawyer. You will be a hero.

Friends, family, acquaintances: You know the pain and costs of a divorce battle. You are giving a gift of a better way to resolve separation issues when you refer someone to a Collaborative lawyer. You will be a hero.

Heros… remember to make sure the lawyer you refer your clients, family and friends to actually has training in Collaborative Practice. Not all family law lawyers have the special training. They might say they are “collaborative” meaning they try to settle their cases before trial. Special skills, an intense commitment to settlement and an in depth knowledge of the process are necessary to be a true Collaborative Lawyer and that comes with training. Our association lists those with training in Simcoe County. The international association, the IACP, also lists criteria for practicing members.

Refer someone to a Collaborative lawyer.

Be a hero.

When I started doing Collaborative work, I kept looking for the “right” clients for Collaboration.  I thought the “right” clients would be ones who got along well, as then they would be able to Collaborate well.  It took some time for me to realize that the clients who got along well often did not need a great deal of help.  What I also realized was that Collaboration is really designed as a system to manage conflict.

When I came to understand that, I also understood that Collaboration was not designed to help 10% of my clients, it was designed to help 80% of my clients.  Therefore I stopped looking for the “right” clients and started explaining the Collaborative option to all my clients.  The real power of bringing together a coordinated team of Attorneys, Divorce Coaches, Child Specialists, and neutral Financial Specialists, is that the team can help even a couple in high conflict find ways to break the cycle of fighting and move on to problem solving.

The Divorce Coaches and Child Specialists, with their backgrounds in mental health, bring an incredible set of tools to the process.  They help the couple and the rest of the team see what is breaking down in the communications between the parties, and help the couple find ways to change the communication patterns so that they can move beyond the places where they get stuck.

Attorneys who are trained in peaceful dispute resolution methods also help to de-escalate the conflict.  They do this by working with the Coaches to understand the couple’s dynamics, by listening respectfully to both parties, and by understanding that the best way to reach resolution is by finding the solutions that will also work for the other side.  The Attorneys act as the guides through the process, leading the clients through each step that is needed to reach the goal in a respectful, planned, and thoughtful way.

The Financial Specialist also helps defuse the conflict by providing neutral financial data collection, modeling, and advice to both parties.  This lowers distrust, helps reduce factual disputes, and helps both clients see their financial situation from the same perspective.

However, Collaboration is not for everyone.  While the parties to a Collaborative Divorce do not have to get along, they do have to want to achieve resolution peacefully, and they need to be able, with help, to come to an understanding of where the other party is coming from.  A client who lacks the ability or willingness to step out of their own skin for a minute to think about the other party’s needs, concerns, and desires, is going to have a very hard time recognizing and findings solutions that will address those needs, concerns, and desires of the other party.

Some questions to ask yourself are:

Do both I and my spouse WANT to stop fighting?

Do both I and my spouse have the ability, with help, to at least listen to each other?

Are both I and my spouse willing to work at learning the communication skills it will take to problem solve together?

If you answered yes to these questions, then the next step is to meet with a Collaborative Professional to discuss whether this might be a process that could work for you.

New clients often find it difficult to choose between Collaboration and Mediation. When I explain the differences, I like to think of it in terms of levels of support.

Clients that have less need for support during the settlement discussions often chose Mediation. My role will generally be in the background. The primary discussions are going to happen with three people at the table – the two parties and a mediator. My client may consult with me between Mediation session, and I will be there to prepare the legal documents when an agreement is reached, but I am not there to assist in the middle of a session with the mediator.

For some clients that is all they want. They feel comfortable making decisions without much outside input and do not feel the need for additional support. Other clients want a higher level of support than that. They want me at the table with them, so they can ask me questions and hear my suggestions.

For those clients I suggest the Collaborative approach. Instead of one mediator, this brings two attorneys to the table who are both trained in Mediation and can work together to facilitate the discussion.

Occasionally there is a particularly tough case that can be helped by bringing in a Mediator to supplement the work of the Collaborative attorneys. In the end, it is all about finding the approach that will help the clients feel like they have the support they want and need in order to craft the best resolution they can create.

I have been a divorce attorney since 1988.  Until about 2005 I was primarily a litigator.  That meant I was a legal advocate, fighting on behalf of my clients to get them what they were entitled to.  Sometimes that meant arguing in court for them, and sometimes it meant negotiating their settlements based on what I believed I could achieve for them in court.

The legal advocacy system is a good system – it is designed to allow people to obtain resolution of their legal issues by a trained and impartial decision maker based on the best information available – that information having been tested in the fire of a court trial.  However, the legal advocacy system has some inherent problems as well.  Litigation is essentially a form of combat, with an advocate for each side fighting to uphold their client’s positions and to defeat the positions of the other side.  The result for the clients, however, can also be to leave them battered and bruised, especially in the highly personal arena of divorce.

The process of working towards the best result for themselves encourages both sides to think of the other as the enemy, as the person that stands between them and their desired outcome.  This very often leads to each side throwing accusations, barbs, and innuendo at the other,  and suffering through the accusations, barbs, and innuendo thrown at themselves.   In the end, there may be a sense of powerlessness as their futures are decided by a third party.  Many people look back on their divorce as one of the worst experiences of their lives.  It also often means that their relationship with the other party, many times someone they are going to continue to encounter and even co-parent with, has suffered significant and irreparable damage.

When I trained in Mediation, and later in Collaboration, I learned how the parties to a dispute can come together to explore mutually satisfactory solutions, like two companies seeking to structure a business deal.  In this kind of process, as opposed to the mutual combat model, each side recognizes that it can best achieve its own goals by addressing  and satisfying the interests of the other.

Many of our firm’s clients need strong advocates, because the other side is violent, unreasonable, or dishonest, or simply because they prefer a traditional legal approach.  I did that work for many years.  Now, however, I find that I prefer working with clients who want to work with, rather than against, the other side.  They may still have significant ongoing conflict, but if they both are willing to learn skills to help them de-escalate rather than escalate that conflict, and to explore solutions that best serve the interests of both, then a non-traditional approach may work best for them.  At the end of the day, I feel my clients’ stress level is lower, and certainly my own stress level is lower doing this kind of work, and that is why I choose to do it.

Mike Fancher

In case you are not a Collaborative Law professional, I should briefly explain that Collaborative Law is a method for resolving legal disputes outside of court.  It was started by divorce lawyers, and the majority of lawyers who do this kind of practice are still from the divorce law field.  Collaborative Law is an outgrowth of Mediation.  The essence of CL is that the lawyers for the two parties use mediation skills rather than litigation skills to help the clients work out their own resolution.

One of the basic principles of CL is an agreement up front that we are not going to court and we are not using the threat of going to court.  Because of this, the focus is on interests rather than power.  Typical negotiations in litigated cases are based on the relative power positions of the parties — how much each side can convince the other of the strength of their position and the likelihood that the court will rule for them at trial.  If both sides can come to agreement as to what is likely to happen at trial, then they can usually agree to settle and forgo the trial.

However, when we agree that we are not going to take the dispute to court, then the relative power of each party to prevail at court losses weight as a factor.  Instead, the focus turns to finding solutions that will satisfy the interests of each party.  If neither party can bully the other into a settlement, then each party needs to look at what will it take to satisfy the other party while also meeting their own needs and interests.  When each party is having to consider what will work for the other, the parties can become allies in finding solutions that will work for both, rather than adversaries.

In legal terms, I think of this as being like transactional work.  It is similar to the process two businesses go through when they are working out a contract for mutual benefit, rather than the process when they sue each other.

Mike Fancher