Defusing Divorce

I have begun offering a new option for resolving cases through a streamlined hybrid method designed to keep costs down.  This method was developed by two Seattle area Collaborative attorneys, Virginia Goldberg and Peggy Hoban.  From the FasTrack Divorce™  press release:

THE SIMPLE AND PREDICTABLE DIVORCE PROCESS IS HERE
Two local family law attorneys have synthesized their combined years of experience in litigation, mediation, and collaborative law to create the FasTrack Divorce™; a fast and final divorce option with a predictable fee structure.
In a FasTrack divorce, both spouses agree to use attorneys who will charge the same hourly rate, with the goal of keeping the total billable time to between 20 and 25 hours. The parties will exchange financial and other relevant information through standardized forms, and the case proceeds rapidly into mediation. If the parties are unable to resolve all disputes in mediation, the case will be finalized through binding arbitration. The case can be concluded within 100 days, if both parties follow the recommended schedule.
Many prominent Seattle and Eastside attorneys have agreed to take cases following the FasTrack method and highly qualified mediators, including a retired King County Commissioner, are available to assist in mediation and arbitration. For the first time, attorneys are able to offer their clients a private and expedited divorce process with a cost-structure that is predictable and contained.
To find out more about FasTrack Divorce™, please visit the website at www.fastrackdivorce.com, or call one of the participating attorneys found at www.fastrackdivorce.com/professionals.

Too often parents in divorce get carried away with fighting over their children, as if a “win” will improve their childrens lives.  In reality, conflict between parents is harmful to the children, even if the children are not directly exposed to the conflict.  There are so many ways that the children will still be negatively affected by the parents’ inability to work together in raising them – lack of consistency between households, tug of wars over minor decisions, negative messages about each parent from the other through looks, words, and gestures.

A child focused divorce looks at how the best interests of the children can be truly served.  For those interests to be best served, the parents need to find ways of working together to co-parent, rather than simply parenting separately as if the two homes the children will grow up in are in different worlds.  To do this, I find that it is important to put the issue out on the table – asking do you want what is best for your children, do you want to put the children first?  If the answer is yes, then we can discuss how that can be done – not by focusing on what is wrong, but by focusing on how things can be better.  Once we start talking in terms of how things can be better, that gives a basis for a mutual discussion of differing perceptions, of what is getting in the way of being better parents, and of brainstorming ideas or strategies that both parents can agree on.  By engaging in that kind of process, not only can the parents come to a better understanding of each other and develop a healthy plan for the future, but they can also build skills for interacting with each other that can help them continue to make decisions together about the children down the road.

I participated in a recent discussion as to whether there is a place in Collaboration for Arbitration.  Arbitration means having a decision maker step in to decide some issue for the couple.  My first reaction, as well as the reaction of most of the other people in the discussion, was that Arbitration is basically the opposite of Collaboration since it takes the decision making power out of the hands of the parties, and that by doing so, it might even invoke the part of the Participation Agreement that requires the Collaborative Professionals to withdraw from the process.

However, one of the original leaders of the Collaborative movement brought up an interesting point.  He noted that it is not uncommon for parties to agree in advance to bind themselves to at least some kinds of outside decisions, such as an appraisal, an answer from their tax accountant, etc.  This makes the lines a little blurrier.  What do you think?

A friend of mine, Rina Goodman of Transforming Conflict LLC, who is trained in Collaboration and has worked for years as a Mediator, is working on developing a hybrid she is calling Collaborative Mediation.  The idea is to apply some of the tools and concepts of Collaboration to the field of Mediation.

My understanding is that this would include having the parties working with Collaboratively trained attorneys to support the Mediation process, potentially using other Collaborative professionals such as Financial and Child Specialists to assist the couple in developing their solutions, and the use of a Participation Agreement to lay out the ground rules.

While certainly Collaborative Mediation is different from Collaborative Process, it is exciting to see this cross fertilization happening between our two fields of Collaboration and Mediation.  Best wishes Rina!

There is significant debate within the Collaborative community as to whether it is appropriate to use a Collaborative process in cases where there is a history of violent or coercive behavior.  I tend to find myself in the camp that believes Collaboration can be useful in these situations, with caveats.

I start from the premise that we live in an imperfect world, which means that we have to choose between various imperfect options.  Therefore the question is not whether Collaborative Law is the correct way to deal with domestic violence, but whether it is the best alternative. I don’t believe we can ever be sure that the non-dominant partner’s voice is genuine and not a conditioned response, EVEN in cases that have no overt violence, threats, or other coercion.

My second premise is that Collaborative Law is a better method for balancing power between two parties than litigation.  While ultimately a court may see what is going on and give relief to the abused or weaker party, we have way too many cases where the court system has been used to perpetuate abuse and oppression, through lying, intimidation, endless motions and discovery, financial pressures, etc.  Litigation is a power game, so people who thrive on using power against others can play the game very well.

Collaborative Law reduces the ability to use power to oppress the other, by taking out the threat of litigation.  That doesn’t mean there is not some control, some power politics going on in the background, but at least it is reduced.  That means, however, that in cases where control and power have been issues, we need to take more care to confront and deal with those issues to try and balance the powers.  That may mean mean having professionals, and particularly coaches, that are experienced in those dynamics.  It may mean confronting the issue head on and discussing it.  My general feeling is that if the abuser can admit to the history and deal with it, there is much more potential for a successful Collaborative Law process than where the abuser is denying the history.  If there is denial, then from the start there is a lack of honesty, and THEN I have a real question whether Collaborative Law can work for the couple.

I’d like to know your thoughts.

There was a good discussion the other day on a listserv I get about the problem where one party would like to use the Collaborative Law process, but the other party is not receptive to even discussing the notion of divorce.  A major concern was that the idea of using Collaboration not be presented to the other party in a coercive manner (i.e., “if you won’t do this we will have to …”).

One response I particularly liked contained a sample letter.  Neil Denny, in his blog Embracing Conflict (he also writes the Conversational Riffs blog) writes:

[T]here is an opportunity to demonstrate to the client’s partner that we are not being dictatorial in laying down the process to be adopted. We can use this first letter both as a hook and a demonstration that we are interested in their opinion and what they feel is important just as we are interested in our client’s own opinions. After all, it is only by understanding both partners that we can then start to explore solutions that will fit.

His proposed letter does not specifically ask that the other party agree to participate in Collaboration, but simply invites him/her to consider entering into a discussion about how to proceed.  It does not even raise the issue of divorce at this point, allowing that to become part of the mutual discussion and decision making.  I really like this because it does not push the party into a position where they feel like they are agreeing to the concept of divorce by agreeing to enter into talks, and it allows the divorce, if it does happen, to become a mutual decision rather than a decision made for both by one of the parties.

Another poster also suggested that this initial suggestion might better come through a neutral family counselor rather than from an attorney to further remove the feeling of being pushed into something by the first party’s representative.

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.