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.

Is Collaborative Law Cheaper than Litigation?

This is one of the most common questions I hear. Some people have gotten the idea that Collaborative Law is cheaper than litigation. In fact, some attorneys tell people that it is a cheaper process. Unfortunately, we can't really determine that.

No Way to Compare

In some ways, I would like to think that Collaborative Law would be less expensive, but no one can really answer the question because there's no way to compare the processes. If you think about it, you can see that there can be no direct comparisons:

• Each case is different from every other case, so you can't make meaningful comparisons between two different cases. While there could be two cases where the parents each need to work out arrangements for their three children, there will always be differences that affect the amount of time and effort the parties and attorneys must expend. Maybe the father wants primary custody in one case and the mother wants primary custody in the other case. Different work schedules or special needs of the children or parents would impact the cost of a case.

• There's also no way to take one case and figure out its cost in Collaborative Law and then re-calculate it as a litigated case. There are always unplanned events during a case as the parties move toward resolution. Things would happen differently under each approach, so the parties might have to do more or less work in one system as compared to the other system. In other words, there could be multiple hearings or numerous discovery fights in a litigated case, and there could be extra meetings in a Collaborative case if new problems develop.

However, there are two questions which can be answered.

1. Is Collaborative Law cheap? I would say that it usually is not, but of course "cheap" is relative. Collaborative would be cheap if there weren't many meetings. In some case, it happens that way. Most of the really easy cases, from my experience, don't go into the Collaborative process. Instead, the parties work out all or most issues informally and then the attorneys help them finish up an agreement.

Since the easy cases settle out quickly (and cheaply), that leaves the more difficult cases to be resolved. By the nature of the cases, we usually have a full team of professionals and have multiple meetings. We can achieve good results, but it will not be cheap.

2. Is the Collaborative Law result worth the cost? From my perspective, yes. Here's why:

• Consider what's at risk. Collaborative Law allows the parties to deal with personal issues in privacy. They get to be the ones to make their own decisions, instead of letting a stranger decide the details of their personal lives. Collaborative parties can work out unique, customized solutions to their problems, instead of following standard guidelines that may not make sense for them. They also work in a less-stressful environment and communicate and participate in a manner that helps preserve, and sometimes improve, their family relationships.
  

• Consider the result attained. The parties are always focused on meeting their own goals and special needs. The process is efficient in dealing with the most important matters and making sure that both parties have input and the benefit of neutral experts as needed. In the end, the Collaborative parties create their own solutions targeting their most important goals, needs and interests. A plan is put in place only if both parties agree to the terms.
  

• Consider the effects of maintaining good family relationships. There's a greater likelihood that the parties can continue to work things out without court intervention if they continue to either use the Collaborative team or use the skills they learned in the process. While it's common for parties in the litigation system to frequently go back to court several times until the youngest child turns 18 (and sometimes later), Collaborative parties tend to be more willing to talk civilly and compromise. In this case, you can truly say that talk is cheap -- cheaper than hiring lawyers and going to court.

To summarize, I can't compare systems and say that Collaborative Law is cheaper than litigation, I don't claim that Collaborative Law is cheap, but I would conclude that it is worth the cost.

How It Works -- Joint Collaborative Meetings

When they are trying to decide whether to try Collaborative Law, many people want to find out how the process works. One of the most noticeable differences between litigation and Collaborative Law is that court is replaced by meetings at a private office. The meetings are usually at one of the attorneys' office, but sometimes are held at the office of the financial or communication specialist. Here are some typical elements of the process:

• Each meeting is usually one and a half to two hours long. People get tired and are less effective and more stressed, if meetings go beyond two hours.

• Most often, we schedule meetings about every two weeks, but we sometimes can meet more or less frequently if there is a need. In between the meetings, the parties may do "homework" and have meetings with the MHP or financial specialist.

• The meetings are planned ahead of time by the professionals who prepare and follow a set agenda. It is important that surprises are minimized and that the meetings not veer off into discussions of topics that were unexpected. The agenda is often discussed at the end of the preceding meeting.

• Where a mental health professional (MHP) is used, the MHP usually runs the meeting. That helps the atmosphere feel unbiased and the MHP is able to help the parties function at their most effective level, even when difficult topics are discussed.

• We generally follow a standard "roadmap" which includes these steps: determine the goals for each party, gather information, determine what the issues are and generate options, evaluate the options and then negotiate to an agreement. We may cover only one step, or part of one step, at each meeting.

• We have found it helpful for the attorneys to visit with the other professionals just before and just after a joint meeting to discuss how to handle issues and to evaluate how the meeting went.

• The attorneys also usually meet or talk with the parties both just before and just after the joint meetings for preparation and feedback. Between joint meetings, the attorneys also talk with their clients as needed to prepare for meetings.

• It may take several meetings to resolve some issues, and the parties have the freedom to take as much time as they want to fully explore possible solutions.

If you have questions that haven't been answered about the joint meetings, you should consult with a trained Collaborative professional who can answer any other questions about the process.

Improving Creativity

Working in Collaborative Law, one of the great joys of the process is creating new solutions to problems that the parties may have felt were impossible to resolve.

I recently ran across an article from Scientific American magazine that dealt with creativity and gave some encouraging ideas on how to increase creativity in people. You can read the article and you may get some ideas that will help some aspect of your life. As I read the article, I thought about how it could be applied in the Collaborative Law context. Here are some possible ways to increase creativity in Collaborative cases by temporarily changing your reality to work from a different point of view. (These are just my creations and are not based on science or even from suggestions in the article, but I invite you to take a look and have a little fun with it.)

• Change some variables. On children's issues, you might try changing the number of children you are working with, or change the schedules that affect the children or each parent, or change locations where the parties may be, or change the financial status. For financial issues, you can change the assets under consideration, change the amounts available, change the needs, change locations, etc. If you modify some variables, create some solutions under the different set of facts, and that may generate new solutions that could be transformed to fit your situation. At the least, it should make both parties more open-minded and broaden the range of possible solutions.

• Change the context or location. If you are in Texas, for example, try finding solutions the same parenting or financial issues that you have, but pretend you live in California or Minnesota or Kansas or New York City or somewhere else completely different. Again, the idea is to open up your brain to consider really different circumstances, which might help generate really different solutions.

• Change the perspective. Put yourself in someone else's shoes. Reverse the parenting roles for a while. Try looking at the situation from a grandparent's perspective or from the point of view of a mutually respected friend. Consider how someone with more or less money or different job experiences or education might view the issues in property division. Be a third party who is trying to help someone else come up with ideas.
  

The point of all that isn't to waste time or to generate useless or irrelevant ideas. The point is to exercise and expand your brain, to make it more accepting of off-beat or unique ideas that might ordinarily be rejected or not even considered.

This is a technique that can be used in a case where the parties are having trouble solving problems and coming up with new ideas. It doesn't need to be utilized in the ordinary case where the parties work effectively together and are able to find acceptable solutions. In a difficult case, however, it's another option to be explored. If you have occasion to try this, please write in and let us know how it works.

Credit for the link to the article also goes to a tweet from Jonathan Jordan, a/k/a MindfullyChange.