Wednesday, July 18, 2012

Why You Shouldn't Negotiate with Your Spouse

As a Collaborative case progresses, one or both of the parties often want to "save time" or "save money" by negotiating directly with their spouse, outside of the joint Collaborative meetings.  That's usually a bad idea from my experience.  Why?
Here are some common problems that arise when the parties go off on their own and directly negotiate some aspects of their case.
1.  One spouse often dominates.  That's usually the one who came up with the idea of meeting, talking and getting some quick decisions.  That spouse often tries to pressure the other spouse into agreeing on some issues, and that conflicts with the structure and safety that Collaborative Law offers.
2.  One spouse may have more information.  Usually, that's the spouse pushing to get quick decisions.  The other spouse may be at a disadvantage from lack of preparation and lack of information.
3.  Having the private meetings skips steps in the Collaborative process and the parties lose the advantages of organized information gathering, analysis and brainstorming.  For the party with the agenda, that's not so bad.
4.  There's no referee.  The mental health professional (MHP) is not around to make sure each party treats the other party appropriately.  Things can easily get out of hand, with arguments ensuing.
5.  The parties can easily get caught up in small details and argue over them, rather than considering the bigger issues.  Small issues can lead to big arguments and hardening of positions for future negotiations.
6.  One spouse may feel pressured.  Each spouse already knows how to put pressure on their other spouse.  That can lead to hurt feelings, anger or fear, none of which helps future negotiations.
7.  The discussions can easily become heated.  That can end up moving the parties away from possible agreements.  It's easy to slip back into old patterns of argument when the MHP isn't around to keep the peace.

There's a fine line between necessary communication on minor issues and private negotiations between the parties.  Make sure you don't cross over the line.

Sunday, July 8, 2012

Professionals Getting Divorced Respectfully

Professionals of all kinds often live a high reward-high risk business life.  They do stressful work, whether they are doctors, lawyers, accountants, pilots, engineers, athletes, business owners or other professionals.  It has often taken a long time and a lot of hard work to reach a level of success and sometimes the family suffers.  Relationships are hard to maintain in the best of circumstances, and professionals often are called on to make personal sacrifices to advance in their careers.
As a result of many factors, professionals may end up facing a divorce.  If that time comes, they usually prefer to work through the process as quietly as possible, for many obvious reasons.  Because of that, Collaborative Law has become an attractive option for professionals dealing with divorce and other family issues.  Here are some considerations that lead to that conclusion:
1.  Collaborative Law affords the parties privacy.  Instead of filing various pleadings and motions in court, having hearings and depositions, and doing voluminous discovery, the parties in Collaborative Law have a series of short, private meetings to work out agreements.  It is a less-adversarial process and it works quietly in confidential meetings.  The parties agree to stay out of court until they prove up the final agreement.
2.  Collaborative Law permits flexible scheduling.  Many professionals are quite busy and just aren't able to suddenly change schedules and run to the courthouse or show up for depositions.  In Collaborative Practice, the meetings can be scheduled to work around the availability of the parties and minimize the inconvenience for everyone.  That rarely happens in litigation.
3.  Neutral experts are used in limited roles in Collaborative cases.  We normally use a neutral mental health professional (MHP) to assist the parties communicate effectively and deal with the stress of the process.  The MHP often helps the parties resolve children's issues as well.  In addition, we use a neutral financial professional (FP) to gather and organize the financial information.  The FP also leads the discussions reviewing the financial summary and generating options for property division.  If we need to get appraisals of real estate or business values, we hire one neutral expert to establish the values.  All of that is in contrast to litigation where each side independently usually hires their own set of experts, doubling the cost and increasing the fighting.
4.  Both sides are helped to be realistic.  Using neutral experts and having experienced Collaborative lawyers all working together to help the parties come to agreement truly benefits the parties.  Instead of encouraging the parties to take extreme positions in negotiations, the team helps the parties focus on their underlying goals and needs.  They also help the parties be reasonable in their objectives by openly dealing with the facts and information that is shared throughout the process.
5.  Help is available for the difficult emotions often experienced in divorce.  Collaborative attorneys are better prepared to deal with emotional issues, but even more important is the MHP who attends all the joint meetings and who can also work one-on-one, not to provide therapy, but to help the parties deal with the emotions and challenges of making important personal decisions and changing relationships.
Collaborative Law won't work for everyone, but it can be very effective and not as difficult or destructive as litigation, in the proper case.  Professionals can get information about Collaborative Law by talking with attorneys, MHPs or FPs who are trained in the process.  Good luck!

Sunday, July 1, 2012

What Happens if Someone Refuses to Provide Requested Information?

This is a common question, but an uncommon problem.  It is a logical question if one is coming from the world of family law litigation.  Why?  Because people are deceitful and hide or destroy evidence all the time.  Sometimes they get caught.  Sometimes they don't.  That's litigation.
In Collaborative Law, cases are supposed to operate differently.  People are expected to voluntarily cooperate in sharing information without going through all the formalities of litigation discovery.  To many attorneys, used to working with clients in litigation, it is hard to understand how or why a voluntary system would work.
The simple answer is that it is up to the attorneys and other professionals to screen out the bad apples, the clients who are inherently dishonest or who clearly aren't comfortable opening up everything.  Many of the bad apples aren't interested at all in trying to be cooperative and sharing information, so many problems are avoided.
Still, there are some problems that come out, even from honest, well-intentioned people.  Maybe the information is embarrassing or showing certain information will likely lead to bigger fights, or maybe they are getting caught in some lies and react the way many people have tried in the past -- stonewalling.
If that happened, the options for dealing with it would be:  (This is assuming that the information exists, is available to at least one person and the information is deemed, by one or more of the professionals,  relevant to an important issue.)  Here are some possible courses of action:
  • Try to find the information through another source.
  • The party's attorney would talk with the client to try to gain cooperation.
  • The mental health professional or the financial professional would talk with the party.
Possible termination.  If none of those steps works, the professionals and the other party have the right to terminate the process or to continue the process without the information.  If the process is terminated, both sides will need to hire new attorneys to complete the legal action.  The threat of that additional expense might be enough to gain cooperation.  If the case moves to litigation, it's likely that the information can be ordered to be produced, but there's still no guarantee of compliance.  Of course, a judge can make the uncooperative party pay for it at the decision time.
Many people considering Collaborative Law wonder about how to force the other side to disclose necessary information.  In reality, it's mostly a theoretical question.  In over 10 years of doing Collaborative cases, I can't remember a single case where requested  information was withheld. That may be because the people choosing Collaborative are already willing to follow the rules and be cooperative.  In addition, the professionals are careful at the outset to not start up a case where someone likely won't abide by the rules and practices of Collaborative Law.
Bottom Line:  Don't worry about whether information will be provided.  It hasn't been a problem so far.