Trick or Treat -- Are There Always Just 2 Choices?

Tonight, most folks will be inundated by little monsters, princesses and really cute little creatures who all seem to be knocking on doors and saying the same thing, "Trick or Treat!". Hearing that phrase got me thinking about how so many things in life seem to be either-or situations: black or white, young or old, smart or dumb, rich or poor, etc. We've grown accustomed to thinking in dichotomies with seeming opposites being the only choices.

In reality, not only are there gray areas (gray color, middle age, normal intelligence, middle class, for examples), but if we look, we can usually also find alternative choices. One of the most significant benefits of Collaborative Law is that it actively promotes the creation and consideration of new options through the decision-making process.

The Collaborative process usually involves following several steps. First, the goals are set out for each party so everyone knows what needs to be accomplished. Second, information is gathered about the parties' situation. Third, the parties brainstorm and come up with as many options as they can. Fourth, the options are evaluated by the parties. And fifth, the parties negotiate and reach an agreement. That framework has proven very successful in helping parties create solutions that they both like.

While all the steps are important, the brainstorming session is often the most interesting and enlightening. When they try, parties are able to come up with great new ideas and solutions that are acceptable to both parties. That is a vastly different situation from old-fashioned litigation which relies mostly on standard guidelines and formulas, as well as "what the judge always does in similar situations".

For those interested in finding new ways to solve problems, Collaborative Law is the way to go. For those who find security in the tried and true either-or responses to issues, litigation is the appropriate approach. Collaborative Law is sometimes difficult, but ultimately is rewarding in many ways as I have previously discussed on this blog. Hopefully, you won't be scared to try something new and challenging, even on Halloween!

The 1st Joint Meeting -- Building a Foundation

Many people going through a Collaborative divorce, especially those in a hurry (which is usually just half of the parties), consider the first joint meeting to be a huge waste of time. They are anxious to get down to business and start negotiating. They don't like to discuss boring topics, such as how the Collaborative process works (the attorneys will manage it) or how they should behave (they'll be nice). They don't like to read through the Participation Agreement with the attorneys or the agreement used to hire experts. Often, the parties think that they don't need to read such documents because they won't understand them and/or the attorneys wouldn't have the parties sign something unless it was the right thing to do. For many people who are starting the divorce process, they don't want the divorce and often they are in a fog and not thinking or understanding well.

The Collaborative process requires a commitment by both parties to a number of principles that are explicitly spelled out in the Participation Agreement. It is important for the parties to discuss and learn how the process works in actual practice. We don't want someone to start the process based on mistaken assumptions about how it works.

The typical first joint meeting provides a foundation for the parties and the professionals to be sure they understand the process and they really want to commit to it. There is the little matter of the attorneys having to withdraw if the process breaks down. That needs to be well understood by the parties. It's actually the incentive for the parties to keep trying to find solutions rather than resort back to litigation. It's a significant financial cost to both sides, so it behooves everyone to be clear and in agreement about the process. The steps to be followed need to be understood. The expectations about behavior should be discussed as well. Finally, setting the goals for each party is an essential first step in the problem solving process.

While it may seem like a waste of time to some people, the first joint meeting actually is an essential, critical step in the Collaborative process. We apologize if it seems boring, and if it means that you can't start negotiating immediately. It's like when a young person starts to drive: s/he is very anxious to get behind the wheel. They have seen driving all their life and are sure they know how and what to do. Parents know that their children must be trained to drive and part of that is learning the rules and being patient. We need a little bit of that same patience in the Collaborative process. Building a good foundation increases the probability of success in houses and in Collaborative Law cases.

Collaborative Law Works in Britain, Too

A recent article in the American Bar Association Journal provides further support for the use of Collaborative Law in settling disputes. The article quotes a senior British judge (in the London Times) as saying that Collaborative Law is much better than traditional litigation. The growth of Collaborative Law in the last five years, both in Britain and in the U.S., has been phenomenal.

There are many good reasons for the growth. I have previously posted on a variety of reasons why Collaborative Law often works better than litigation for resolving family disputes. If you are about to start a divorce or other family law procedure, you should discuss the possibility of Collaborative Law with your attorney. Be sure you are dealing with an attorney who has at least attended a two-day training on the process, and further experience is valuable. An experienced Collaborative attorney can help you analyze your case to determine if Collaborative Law might work. There are some cases where Collaborative probably won't work out, but in most cases, it's your best choice.

Another View of How to End an Impasse

One of the consistently best family law blogs is the Maryland Divorce Legal Crier by James J. Gross. A few days ago, he had a post about the same subject I recently discussed. Here's his take on impasse.

"What happens when an irresistible force meets an immovable object? A lawyer makes a settlement proposal for a divorce client. The other side sends back a counterproposal, which the client doesn’t like.

'What do you advise next?' asks the client.
'Send back another proposal with some concessions,' the lawyer says.
'What if I don’t want to make any concessions?'
'Then you are at an impasse.'

There are several ways to break an impasse.

(1) Litigation. The ultimate way is to have a judge decide. But this is expensive, time consuming and uncertain in outcome.

(2) Keep Talking. Explore other options to meet the needs of each party. I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3) Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4) Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5) Do Nothing. One option is to just do nothing until somebody blinks. Sometimes I have told the parties, 'You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case. Does anyone have any ideas?' Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, 'Well I’ll split the difference if you will.'"

These are some good ideas, at least 2-5 are. The first idea of using litigation isn't a possibility in a Collaborative case. I have used all of the techniques at different times and they usually help resolve the issues in dispute. There are bound to be some other successful strategies for breaking out of an impasse. Does anyone want to share their ideas?