The Value of Managed Direct Discussion

Too often, when marriages fail, the parties get caught up in an escalating cyclone of angry words and hurt feelings. Words become weapons and little effort is made to really communicate on a substantive level. For people who don't like that and who want to escape that destructive environment, Collaborative Law offers the possibility of more respectful, and less stressful, communication. Collaborative Law is a process that relies on direct communication between the parties in a controlled environment.

Discussions occur in joint meetings attended by both parties, their attorneys and (usually) a neutral mental health professional (MHP) whose role is to facilitate communication. We usually discourage direct discussions between the parties without the team of professionals being present. Experience has shown that the parties work together well with the attorneys and MHP present, but they can quickly revert to old patterns of conflict without the professionals present. It is truly amazing how much difference there is in discussions between the parties when an MHP is present as compared to when one is not present.

Nevertheless, one of the less-emphasized advantages of Collaborative Law is the benefits derived by the parties from their direct discussions. As a reminder, here are some of the reasons why Collaborative Law is so effective:

1. The communications are unfiltered. When the parties negotiate at the courthouse, for example, they rarely stand face-to-face to discuss issues. The attorneys typically keep the parties apart and the attorneys go back and forth carrying messages from the other side and back to the other attorney. Even though it is unintentional, there is unavoidable filtering or changing of the messages. It might be a few different words, the omission of something or a change of emphasis, but there will be changes in the words that are exchanged. It changes the dynamics of the communications and sometimes will affect the decisions and agreements that are reached or that are unable to be reached.

2. There is faster communication. When the attorneys are going back and forth, there is a lot of repetition that could be avoided by direct communications. Having direct contact also allows for more immediate responses and extended discussions.

3. Non-verbal messages are sent and received in direct discussions. Facial expressions, posture, tone of voice, volume and other factors can be communicated and received in face-to-face discussions. They can add a lot of meaning and can change a message tremendously.

4. Direct discussions can help immediately correct mistakes and misunderstandings. Getting the message directly helps avoid such misunderstandings, and the direct contact allow for immediate confirmation or discussion of things that did not sound right or which may have been misunderstood.

5. The parties can deal with differences appropriately, directly and respectfully. In divorce and other family law issues, there will be disagreements. Sometimes it's best to just acknowledge the differences. In other cases, the parties may be able to compromise when they are able to express their concerns and are encouraged to listen to the other party's issues as well. With the support of the professionals on the team working with the parties, they may be able to deal with difficult subjects without losing their temper. The professionals provide a safe and effective environment for difficult discussions.

These are just some of the reasons why direct discussion can be beneficial. In a carefully managed system of communication, such as Collaborative Law provides, parties are able to effectively take advantage of the opportunities to discuss serious matters directly and possibly come to some agreements.

The Opportunity to Take Personal Responsibility in a Divorce

Society tends to value the situation where one party takes personal responsibility for his or her decisions and actions. That is true in business, politics and personal life.

However, when people start to go through a divorce, they sometimes tend to be less motivated to assume responsibility for their decisions. In many cases, they come to expect a judge to make the significant decisions. When that happens, it often impacts on the quality of the decisions and the parties' satisfaction with the court's rulings. It also sometimes lessens the "buy-in" or involvement of the parties. As a result, when things don't work out very well, the responsibility and blame land on the court. Instead of trying to remedy the situation, the parties will sometimes fall into the habit of thinking there's nothing they can do because they are bound by the court's decision, and that's often true.

If there's some interest in having the parties come up with their own solutions, there are four ways it can play out.

• If both parties feel strong enough and want to take the responsibility, they can do so using Collaborative Law.
• If one party wants to try Collaborative Law, but the other is uncertain about it, Collaborative may still work for them. The party who is wavering can be reassured by the fact that there would be two neutral professionals involved and the attorneys have a slightly different mission than they do in litigation cases. The spouse's attorney is not going to be cut-throat or try to make things difficult for you. Both attorneys will try unconventional means of getting to an agreement.
• If one party definitely wants the judge to make the decisions, then there's no way to use Collaborative Law, and that's too bad.
• If neither party really wants the responsibility for working out solutions, then they can't do Collaborative, and that's also too bad.

In the end, people facing family law issues must decide how they want decisions made. Do they want to make their own decisions, with the help of neutral experts, or do they want to turn over the decision-making process to a court where they will not have to create a solution, but where they may be very unsatisfied with the result. To participate or not to participate, that is the question. Do you want to take personal responsibility? If so, Collaborative Law may be the best approach for you.

How to Choose a Collaborative Lawyer

Unfortunately, Collaborative lawyers are not as common as family law attorneys. Not all family law attorneys are trained in Collaborative Law. Even worse, some attorneys who advertise themselves to be Collaborative lawyers are not fully trained in Collaborative Law.

So, if you want to use a Collaborative Law attorney, how can you find one and how do you find the best one for you? Here are three simple steps you can follow.

1. Check around for a referral. You know that often referrals are the best ways to find professionals or stores or other providers of goods or services. You can have some confidence in hiring someone if s/he has been recommended by someone you know and trust. Good sources for Collaborative attorney referrals would include friends, counselors and attorneys. Hopefully, someone will have had some experience with a Collaborative attorney.

2. Research on the Internet. You need to find someone who is experienced and qualified (trained). It's also good to work with someone in your home county for convenience and to minimize travel expense for you and others. Look at web sites to find out how long each attorney has done Collaborative Law and how much and how recent their training is. (It's really helpful to get some additional training every year to keep the skills up.) You can also research the background of any referred attorneys. In Texas, we have the Collaborative Law Institute of Texas, a statewide organization (www.collablawtexas.com), an international group, the International Academy of Collaborative Professionals (www.collaborativepractice.com), and local groups (there are many local groups, but as an example-- www.aboutcollaborativepractice.com). Those web sites and others list trained Collaborative lawyers.

3. Meet with some attorneys in person. Again, focus on experience and training. You can ask whether they have handled similar Collaborative cases and how some issues are often resolved. Keep in mind that most experienced attorneys will charge a consultation fee.

Important: The biggest benefit of meeting with a prospective attorney in person is that you can get a sense of whether there would be good chemistry. Your personality and objectives should be a comfortable match with the attorney's. You don't need identical personalities, but both of you should feel good about working together.

Good luck in your search to find a compatible attorney for your Collaborative case.

Dealing with Anger

Collaborative divorce is often described as a peaceful means of settling very difficult family issues. Just like in litigated cases in the court system, Collaborative divorces sometimes experience displays of anger between the parties. That is unavoidable, and it may not be all bad.

Anger is a natural and very common aspect of divorce. Virtually everyone going through a divorce will experience periods of anger towards their spouse. Most people work through the anger at some point, but some have a great deal of trouble letting go of the anger.

Experience, and therapists, tell us that bottling up the feelings of anger can be unhealthy. That doesn't necessarily mean that we should encourage the parties in a Collaborative case to just share their immediate emotions without thinking about it.
On the other hand, the Collaborative Law process provides several ways to help manage the parties' emotions to lead to constructive results. Here are some that come into play:


Managing Emotions

• In Texas, we usually use a neutral mental health professional (MHP) as a communication facilitator. In that role, the MHP works with each party to manage any feelings of anger. They help the parties learn useful skills that can benefit their other family, personal and business relationship. MHPs can work with parties to teach them how to maintain control so they don't immediately shift into "fight" mode. They learn how to listen better and how to chose words to express their feelings without escalating the conflict.

• Another important key is helping the parties to stay focused on the "Roadmap to Resolution", the step-by-step process that we follow to reach an agreement. The Roadmap helps people take things a step at a time. Breaking the process into small, incremental steps helps the parties concentrate on useful and productive issues, avoiding the easy distractions into side issues that can come up.

• If need be, we can also arrange individual therapy for one or both of the parties. Sometimes there are long-term issues that require extra help. Other times, counseling can lead to better understanding and better skills by the participants. There's almost no one who couldn't benefit by some counseling during a divorce, even in the Collaborative process.

• How information is handled is a significant advantage over the methods used in litigation. The requirements that the parties cooperate with each other and share information help because they eliminate gamesmanship and skirmishes on side issues. Transparency and cooperation are the opposites of what normally happens in divorces in litigation. The openness of the process helps reduce stress and anger.

• The Collaborative experience is enhanced by direct communications between the attorneys and parties. The fact that we have joint meetings, face-to-face, helps us avoid the common problem of distortions of communications as they pass from party to attorney, then attorney to attorney, and then attorney to party. Direct discussions with immediate responses and conclusions help minimize misunderstandings that can lead to anger. They also cut down on delay.

As effective a process as it usually is, Collaborative Law can't make anger disappear. In divorces and other family law matters, it's not unusual for the parties to get mad. Through the use of a variety of tools, however, Collaborative practice is better able to diffuse the anger and deal with the situation in ways that help preserve important family relationships. That's a major reason why many attorneys and parties are recommending Collaborative Law.

How Would You Describe Collaborative Law?

Some people who are about to go through a divorce (or other family law controversy) are able to take a little time and investigate what is ahead of them. Some focus on information about how to go to court and assume that it is the only alternative. Others try to imagine how they would like to deal with the legal issues and then look around to find out if that is possible. Of the former group, some get lucky and find out about various alternatives. Others get ensnared in the legal system without knowing that there are various approaches that can be used, depending on the circumstances of the case.

For those who approach the investigation with an open mind and some curiosity, here are some descriptive terms that can lead to consideration of Collaborative Law as the preferred option.

• Civilized. Having peaceful discussions, assisted by trained professionals, can be a much more effective means to reach a mutually agreeable solution than going to court and hurling charges at each other.
• Friendly. While not all Collaborative parties remain friendly, there is certainly a better chance that it will happen in the environment of joint meetings, especially when a trained, neutral therapist is working on the case.
• Private. Instead of filing charges and making demands in public documents and testifying in an open courtroom, Collaborative cases provide a private venue where the parties talk and work in the privacy of their attorneys' or other professionals' offices.
• Maintaining control over the process. In a Collaborative case, the parties determine the issues and schedule. In litigation, there are often court-imposed deadlines and schedules.
• Making your own decisions. Collaborative case depend on the parties to ultimately reach their own decisions instead of turning the issues over to a judge who often knows little about the case.
• Saving money. While it cannot be said that Collaborative Law is cheap, it is true that the process saves money in several ways by, among other reasons: using joint, neutral experts; avoiding the tedious and expensive written discovery process; and not having to wait for judges and others at the courthouse, as often happens.
• Less stressful. In Texas, we usually hire a neutral therapist to work with both parties and assist them in communicating more effectively, as well as managing stress. In addition, not facing the courtroom and trials (or hearings) is a great stress reliever.
• Use of neutral experts. Collaborative attorneys normally hire joint, neutral experts for financial issues, appraisals, psychological issues and other matters.That produces greater confidence in their advise and avoids a battle of experts that often happens in litigation cases.
• Cooperation. The Collaborative process depends on cooperation and the attorneys work to educate and screen prospective clients before starting the process to make sure they will be cooperative.
• Face-to-face discussions. Instead to turning issues over to a judge or having discussions filtered through the attorneys, Collaborative cases progress by having the parties and their attorneys (and usually the mental health professional) have direct discussions.
• Full disclosure. Although non-Collaboratively trained people sometimes doubt it, the process does provide for full disclosure of all relevant information. Requested information is frequently withheld in litigated cases, and Collaborative cases ultimately have the same safeguards as litigation cases. But Collaborative cases also have an additional layer of protection built in with the work of the neutral financial professional (FP) who reviews and evaluates the financial information provided. The FP will request additional information whenever he or she notices something is missing. That protection is not normally present in a litigated case.
• Customized. Instead of relying on standard formulas for child support or property division or standard schedules for visitation, Collaborative cases encourage the parties to think outside the box and come up with creative new solutions.
• Voluntary. If both parties agree to try Collaborative Law, they can do so. If either one doesn't want to do it, then they won't. It can't be forced on anyone.

People facing legal action in family law matters should research their options and make an informed decision about how to best proceed. One way to do so is to do an Internet search using the above terms along with "divorce" or "child support" or "child custody" or other such issue. It would also be wise to meet with a trained, active Collaborative lawyer to fully consider whether Collaborative Law would be appropriate for their situation.

Can We Switch from Litigation to Collaborative Law?

Sometimes, a Collaborative-trained lawyer will file a family law case and start it as a regular litigation matter. After a little work has been done on it, the other side may hire a Collaborative attorney and want to convert the case into a Collaborative case. Some people question whether that is possible. The short answer is "Yes", we can switch processes in mid-stream. Another relevant question, however, is whether that is advisable.

Initially, the change is fairly easy to accomplish mechanically. Just like in any other case, the parties would need to commit to the Collaborative process, including the attorney withdrawal provision, and sign a formal participation agreement. The parties would then file (in Texas) the notice of Collaborative proceeding with the court.

Why would you want to do this? For any and all of the reasons often discussed: having a less-stressful environment, letting the parties control the timing and outcome of the process, privacy, the opportunity for creative solutions, etc.

A slightly more difficult question is when you should make the change. The best answer is probably as early as possible, before damage is done by tactics, testimony and other means. Switching early leaves more options open.

One approach which is a very bad idea (in my opinion), is to postpone the switch until some temporary orders are entered using the traditional litigation approach. An attorney who proposes that is clearly not fully convinced of the value and success of the Collaborative process. Such an approach limits options and poisons the relationship between the parties. It would make the Collaborative process much more difficult because the attorneys and parties get used to treating each other the way they do in litigation. It also necessarily includes decision making on important issues, financial and personal, without the benefit of having the neutral financial and communication specialists involved.

The difference between that approach and the decision to switch generally is that when both sides say they want to use Collaborative Law from the outset, but one side wants to get some initial orders made under the litigation approach, that one side is clearly undermining the Collaborative approach and expecting the court to favor them in some way that the other side would never agree to. Once a party is taken advantage of like that, it will be hard to be effective in Collaborative Law.

The Bottom Line: It's OK to switch from litigation to Collaborative Law, and it's not hard to do. But, the sooner the switch, the better.

Facing a "Later in Life" Divorce -- Part I

As Baby Boomers reach retirement age, they not only face changes in their work life. Increasingly, they are facing changes in their home life. Having a long-term marriage doesn't necessarily mean that divorce is out of the question. Facing a divorce in your 50's, 60's or 70's involves some serious concerns that may appear to be of a greater magnitude than the same issues experienced by 20-something, 30-something or even 40-somethings.

Typical issues for older Americans facing divorce include such familiar topics as housing, employment, retirement, health insurance, children and debt management, among other things.

• Can you afford to keep the house? Should you? Should you sell it to cash out?
• If you have a job, how long can you expect to keep it? If you don't have a job, are you employable at your age?
• Will retirement funds that might have been sufficient for one household be enough to support two households?
• Do you have health insurance available?
• Do you have children in college? Do your adult children live at home or still need financial support? Can your children help support you?
• How much debt is there? Can you afford to pay it off? Is bankruptcy on the horizon?

If you, or your spouse, file for a traditional litigated divorce in Tarrant County, Texas, what can you expect? While each judge is a little different, here, you would probably see something like this:

1. The initial consideration is whether you have a job. If you have a job, the question becomes how far you can stretch your income. Often one spouse has been the primary breadwinner and the other spouse has provided a supplementary income that was much lower. If you are the lower-income spouse, you will be in for a difficult time. Texas courts can't provide much alimony by court order, although you may get your spouse to agree to pay alimony at a higher level or for a longer period of time. Usually, you can't expect to just live off the alimony.

If you don't have a job, and aren't at retirement age, at the time of separation, you will probably face pressure to get a job right away, even if you have been out of the workforce for a number of years or if you lack training for a good job.

2. One of the spouses can probably keep the house if he or she wants it and can afford it. Of course, it may be hard to afford it without a job. There may also be pressure from the other spouse to sell the house and split the cash, even if you couldn't qualify for a new mortgage.

3. The other financial issues revolve around whether there is enough cash available. If you are lucky and there's plenty of income and other assets, you may be able to divide the property and debts and still live comfortably.

On the other hand, if cash is in short supply, it won't get any better when you divorce.

In a litigated divorce, the basic approach is to encourage an unemployed spouse to get a job and then divide the assets and debts, usually in the neighborhood of 50-50. If there's a great disparity in income between the parties, a court may give a little more of the assets to the lower-income party, but that doesn't always help, especially if the main asset to be divided is a retirement account.

There's normally no mechanism to get education or job training or job counseling for an unemployed party. Basically, you're told to take this pile of cash and take care of yourself (assuming there is a pile of cash -- often it's more likely to be a pile of debts). There's no attempt to do financial planning in most divorces and no significant thought goes into property division other than determining a percentage for each side.

In many cases, going through a later in life divorce can be very traumatic and can end up with one or both parties in a worse situation financially and, sometimes, personally.

So, what can someone do?
One way to mitigate the effects and the experience of divorce for more mature people is to consider using Collaborative Law. In the next post, I will contrast how Collaborative Law can help manage the later in life divorce.