Thursday, July 25, 2019

The Man in the Arena (and the Trenches)

Last weekend, I took the Road Runners Club of America Level I Coaching Certification Course.  Thirty five or so of us attended, and really the only thing we had in common was that we all loved to run.  I was a stand out at the training, but not in the way you might think.  I am a run/walker, which means I combine intervals of running and walking into all of my runs.  It has kept me injury free for years, so I'm sticking with it.  Many "serious" runners don't consider me to be a real runner, because to them, real runners run the entire run; only beginners walk part of the run.  I wish I could say that their attitude didn't bother me, but it did.  I could feel the judgment.  No one who knows me would say I'm not a runner.  I may not be the fastest person in the world, but I am a solid middle of the pack runner.  I was also the only person in the room who warms up before each and every run, no exceptions.  The instructors didn't believe me; then when they did, they looked at me like I had three heads.  I shouldn't have cared, but I did.  Finally, I just said it was because I'm injury-prone, and that seemed to satisfy them..  I'm not changing how I run, but I sure felt uncomfortable so I made an excuse to make my choices seem more palatable to others. .

Daughter is getting married.  She and her fiancĂ© are doing it their way.  We're going to have a taco bar, and lawn games.  They are not, at this point, making this a state-sanctioned union. Their wedding is going to be a ceremony of commitment between them, in front of their closest family and friends.  Their union is no less committed (and maybe even more so) than a lot of "legal" marriages.  What's more, they are comfortable with their choice.  The problem is that other people are not, and are voicing their judgments on their choice.  They feel the judgment and it doesn't feel good.  They know what others think shouldn't bother them, but it does. They're not changing what's right for them.

Here in the Trenches, divorce comes with lots of judgments.  You're judged if you had an affair.  You're judged if your spouse has an affair.  You're judged if you leave your spouse.  You're judged if your spouse leaves you.  You're judged if you have custody of your children; you're judged if you don't.  People who used to be your friends aren't any more.  Some people even stop talking to you.  Some people start talking to you because you're divorced.  Unlike me with my running, and Daughter with her wedding, a divorce isn't something most people would choose to do if they had a chance. That doesn't make all of those judgments feel any more or less awful.  When you're in the Trenches, however, you are already under stress, so your ability to handle the judgments is decreased.  It's hard to say you don't give a fig when your entire life is shifting and changing.  You start to second guess yourself and your actions.  You wonder if all those people on the periphery are actually right.  I can't answer that for you; I can't know whether their judgments are correct.  What I do know is that Theodore Roosevelt was right, when he said:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Here in the Trenches.

Monday, July 1, 2019

From the Mouths of Babes - Avoiding Divorce

(Sorry you can't see her cuteness from the front, but she's in the 
Baby Protection Program)

During the school year, I am the Monday morning babysitter for my almost two year old granddaughter.  It's probably my most favorite job.  Grandbaby is really into trust falls right now. You know what those are:  they are when you go to the edge of a ledge, or you collapse backwards and simply fall, trusting that there is someone there to catch you so you don't hurt yourself.  Secure children do it effortlessly.  Once we become adults, we have to go to team building retreats to learn how to do it all over again.  But I digress.

Grandbaby climbs up on her ledge.  She looks me straight in the eye.  She gets the biggest smile on her face, you know, the kind that goes all the way up your eyes.  Then she falls.  She knows I'm going to catch her.  There is not a doubt in her mind that's what Grandma is going to do - again and again.  In fact, she's positive I will never let her fall.  Thank goodness I still have good reflexes!  Grandbaby's trust falls have a lot to teach us about how to stay out of the Trenches.  You know what they say about the mouthes of babes...... As I reflect on it, I have 5 main lessons:

1.  Pay attention.  When I am with Grandbaby, my phone is in my bag.  It is not in my hand (unless I'm taking a picture of her cuteness!).  It is not on the chair next to me.  It is not in my back pocket.  When I am with Grandbaby, I am WITH Grandbaby.  She is my entire focus for the 3 hours before the other grandma comes.  I understand I am only with her one day a week, but how many of you make your spouse your entire focus for even 30 minutes one day a week?  Not many, I bet.  I know you're tired at the end of the day and really just want to vege out, but paying attention is important.  It  keeps the relationship moving and it builds trust.

2.  Be where they are.  When I'm with Grandbaby, I am not thinking about what I want to do.  I am focused on what she wants.  Trust me, no sane adult wants to build a tower and have it knocked down a zillion times, or play which stuffed animal gets to be in the crib with baby and which ones have to sit in the chair. That's what she wants to do, and so that's what we do.  I am showing an interest in what she wants without expecting her to do the same for me (even if she could at this age).  I never let her know that the zillionth tower is any less exciting than the first.   I know, listening to your spouse drone on about a topic that interests you not at all is hard, but we all know when people aren't really listening to us; try really listening and see what happens.  Every once in a while do an activity you don't love but your spouse does (and do not let your spouse know how much you hate it and are just doing it for them).

3.  Be predictable.  I don't mean be boring.  When Grandma comes in the morning, she brings pancakes.  Every time.  In fact, I am so predictable on this that when I babysat at night, Grandbaby pointed to my bag and said "cake, cakes." When the other grandma comes, Grandbaby expects different things from her.  She feels secure because she knows she can count on us for certain things.  It's not many things, but they're important to her.  Children aren't the only ones who need predictability.  Adults need to know that if you say you're going to be home at 6, then you're at home at six.  When you say you'll mow the lawn, paint the room, do the laundry, that you'll actually do them and don't have to be nagged.  Don't let your predictability be that you don't do what you say - it's a sure relationship killer.

4.  Let them know the relationship is important.  Do you really want to be known for always missing milestone occasions?  I get it, the greeting card industry is a racket, but I'm not talking about buying a card.  Unless a judge or a doctor absolutely cannot accommodate me (and that is rare because being with Grandbaby is a priority) or I'm sick, which unfortunately has happened a bit more than I'd like, I am there on Monday.  Is it a pain to get up at 5am so I can be at Grandbaby's home before 7?  You betcha.  Is it deadly when I had an event that ended late the night before? Oh yes.  I am, however, there.  How canyon let your spouse know they're important to you?

5.  You can't downplay the value of touch and laughter.  Grandbaby gets lots of huggles.  We hold hands a lot.  I pick her up and carry her.  She gets "zerbets" on her tummy.  We giggle and laugh (as do the school crossing guards who watch us running down the street, counting trees). Truth be told, I love my huggles too.  Human beings need touch.  They need laughter.  Life is hard.  Days are long. Children are tiring.  I get it.  When was the last time you and your spouse touched?  I am not talking about sex or foreplay.  I am talking about holding hands, touching a hand or a shoulder, giving a hug. Touch without expectation of anything else is magical.  When life gets in the way, sometimes that gets put to the side; and the relationship suffers.

Will following all of these lessons from Mondays with Grandbaby keep you out of the Trenches?  Maybe.  Not following any of them, however, will bring you to my door.  Here in the Trenches.

Saturday, June 22, 2019

Take Care Of Yourself - You're Important Too

My life is a little rough and raw right now.  Yes, I've recovered from my fall in DC, thank you for asking.  I have had other issues, however, in my personal life which make my need for self care to be important, albeit difficult to achieve.  It's funny that as I moved through my daily life before, I really didn't give as much thought to self care, mostly because it wasn't imperative.  Once it became imperative, I was shocked that I had so little of it in my life.  Yes, I had my running and strength training, which keep me sane.  What I realized, though, was that there are many aspects to self care, and what I was missing was balance.  You see, running and strength training for me are solitary pursuits, and I like them that way.  What I didn't have, however, is much of a community in general.  Socially, people are hard for me.  I really don't know how to make small talk, I feel awkward asking personal questions (maybe because that's all I do in my professional life), and I always feel like I talk too much about me, which makes me uncomfortable.  In time of need, people are important, so I've been making more of an effort.  What I don't have is a lot of time to go out and be with others, even when I want to.

As a result, I am loving social media.  I found a running group on Facebook that's connected to one of my favorite podcasts.  This group of people is perhaps the most supportive, the most caring and the most active group of folks I could have found.  With them, I feel safe posting my run times, talking about my running issues, sharing their and my personal records and challenges.  They feel like family, even though I've never met any of them in person. I commiserate with someone about their rough week at work, cheer when a new member completes their first race, get excited when someone moves to a new state or country.  We know lots about each other, and you will NEVER see a snarky comment on that page, which says volumes.  I joined an online coaching program for my running, and as I post my daily runs, I get feedback and cheerleading from the coaches and other members and I do the same for others.  Maybe to you, this all sounds like torture, but to me, it reminds me that there are people who care out there, even when I can't get to them in person.  It means a lot.

Here in the Trenches, divorce can be isolating.  The process of ending a marriage or a relationship and all the attendant issues that come with it leaves most people fairly rough and raw.  Divorce is an uncomfortable issue for most people, and folks in the Trenches are highly of conscious of that.  Their friends avoid them because they don't know what to say or do, or because they're tired of listening.  The process itself feels all consuming, and life-sucking.  Yet, folks in the Trenches have to go on with their daily lives and also deal with their legal issues.  What these folks need more than anything is self-care.  They need something to provide them with an outlet and a community who cares for them without judging.  It's hard to do, but vital.  While in the Trenches is not the time to venture out of your comfort zone, but rather to work with it to get the support you need.  What is it that gives you energy?  What resources are there for that activity?  What groups are there to support you, whether in person or virtually?  It can take some work to find what connects for you, and I know that's not what you feel like doing.  Do it anyway, because you won't know how much you needed it until you find it.  Here in the Trenches.

Saturday, June 15, 2019

When is Helping Really Not Helping?

For the past few years, we have had two mourning doves make a nest on top of our outdoor water heater.  Our water heater is just outside the back door, so it's shielded from predators.  Unfortunately for the birds, it also tends to heat up periodically during the day when in use, plus its smooth surface makes nest building difficult.  They have had marginal success in raising their family from egg to launch.  Yet, they return every year.  This year, we decided that they needed help, so we built a little wooden platform with a railing on top of the water heater.  We figured it would insulate the nest from the heat and stop the pieces of nest from sliding to the ground.  We built and we waited.  The doves came back, but they didn't like our platform.  They built a piece of a nest on it, and then abandoned it.  They still like our house; they simply decided to build their nest on top of the trellis which is less than 6 inches away.  As I sit here writing this post, I can see Mama Dove out there sitting on her nest, and I can hear Papa Dove talking to her.  They are content, even though the water heater with the platform is arguably the better nesting site.  We need to learn from them (although we probably helped the odds of the chicks surviving by moving them from the water heater).

If those darn doves don't help us here in the Trenches, I don't know what does.  In law school, or medical school, or any other professional school, we are taught to solve the problem.  We are taught that our training is to help us solve our clients' problems.  We, as professionals, think we are taught the answers to the questions.  It's no surprise that when we are set loose into the world of helping people, we dive almost immediately into problem solving mode.  We listen to our clients in order to solve the problem.  What we discover is that our training makes us lousy listeners, and because we are lousy listeners, we are poor problem solvers.

Let's look at our doves.  We watched them, we identified a problem and we provided a solution.  The doves didn't like the solution because of one or more of a number of things.  Maybe they didn't think they had a problem.   Maybe the urge to nest is greater than the desire to launch live offspring.  Maybe they enjoyed the periodic warmth of the water heater.  Maybe they weighed the options and decided it was more important to have a nest sheltered from the elements and predators, than anything else.  We don't know because doves can't talk.  Our clients, however, can and do talk to us.  When we listen to understand what they're saying, rather than simply to solve the problem, we gather valuable information.  We learn what is important to them.  We hear their concerns.  We ask them questions.  We work with them to solve the problem as they see it, not as we are trained to see it.  They feel heard.  They feel understood.  Most importantly, because of all of that, they take our advice because it makes sense to them and their experience.  Here in the Trenches.

Friday, May 24, 2019

Choices and 5 Stitches

I think you could say I had an adventurous Sunday.  I really had a marvelous day with Daughter and friends.  Brunch was fun and delicious.  We took Daughter's friend to all the DC sights, many via the DC Trolley Tour.  We were heading to our last stop, the Museum of Natural History (what girl doesn't love looking at all the huge gemstones?), when my toe caught an uneven piece of pavement and I went down, like a giant redwood on an aggregate sidewalk.  No time to think about how to fall, no time to try to break the fall, I just went down on my chin.  There was lots of blood.  Paramedics were called.  I ended up being driven home by Daughter and getting 5 stitches.  I did not, however, break anything except skin.  Yes, my jaw is sore and swollen, but not broken.  Unlike some of my friends recently, I didn't break a wrist.  All in all, not catastrophic.

When I look back on Sunday, what do I remember?  I remember what a wonderful day it was.  That's right.  It was a wonderful day.  Although it was hotter than blazes, the sky was a perfect shade of deep blue.  We had lots of fun.  We also had an adventure.  Could I look at the day differently?  Of course I could.  I could remember a day that was ruined by my falling on the sidewalk.  I could be upset with myself for tripping. I could feel embarrassed because I was that person sitting on the sidewalk with others making a fuss while the world walked by and stared.  I could have been upset because I screwed up Daughter's friend's first trip to DC in 20 years.  I could have done all those other things, and when I was younger, I might have.  The point is that it really was a great day and one thing happened at the end that was bad.  I admit it wasn't a little thing like breaking a nail, but in the scheme of things, it was a blip.  I had a choice of how to view it. I could have looked at it as a day ruiner or I could see it as something not good that happened during my terrific day.  I chose the latter.

We are all faced with the choice I had almost every day.  My clients are always faced with that choice when they are in the Trenches.  Let's face it, the divorce process is not pleasant.  The decision to end a marriage is agonizing to make.  Being told your marriage is over is crushing.  Having to divide your children's upbringing is excruciating.  Most people live fairly long lives.  In the scheme of things, for most folks (and there are exceptions), their divorce is a small piece of a very long life.  It's a blip, if you will.  I don't mean that in a flippant way; I say it to put the divorce in perspective.  Everyone in the Trenches has a choice.  They can let their divorce define them and the rest of their lives.  They can  look at it as a small part of an otherwise great life.  They can see it as an opportunity to learn and grow.  They can view it as the thing that ruined their wonderful life.  They can decide that it's the starting line for a new chapter in their lives or a new direction.  They can decide that the divorce meant their married life was a sham and that they wasted those years.  They can choose to use their energy to hate their former spouse, and keep that hatred going.  They can choose to forgive, or if not forgive, to move on.  Every choice has a consequence.  Every choice evokes a memory and an emotion.  Each client chooses for himself or herself what that memory and emotion will be.  Because it is a choice.  Here in the Trenches.

Sunday, April 21, 2019

Lessons for the Trenches from Meb

Creative Commons Attribution-Share Alike 3.0 Unported
It's not often that I can combine my two loves, running and the Trenches, into one blog post.  Today is that day.  If you read this blog at all, you know I love to run.  I am also a huge fangirl of Meb Keflezighi (If you don't know who Meb is, head on over to his website, or follow him on Twitter or Instagram).  The great thing about Meb is that you don't have to be a runner to learn from him.  In fact, many of the things I have learned from following his career and reading his books have nothing to do with running (I will admit that I love his active warmups, however).   I've just finished his new book, 26 Marathons: What I Learned About Faith, Identity, Running and Life, and I recommend it to everyone, runner and non-runner alike.

I know you're thinking that someone like Meb has an incredible amount of innate talent.  For most of us, even if we trained like Meb, we would never have running times like Meb. As it is, he runs a marathon in just over the amount of time it takes me to run a half marathon.  What is it na superstar like Meb could say that would resonate with folks like us?  Plenty.  Here are three of my takeaways for those of us either working or finding ourselves in the Trenches.  

1.  Always have a goal, or two, or three.  Meb always had a goal for a race, and then he had a back up goal, and a back up to the back up, ALLof which would mean to him that he got the bet out of himself.  He created all of them BEFORE he started the race. For example, his goal may have been to win the race.  If it became obvious that he wasn't going to win, then his goal might have been to place in the top 4.  If it became obvious that he wasn't going to be able to meet that goal, then his goal might have been to run a certain time, or just to finish. If Meb met ANY of those goals, then the race was a success.  
     Here in the Trenches, clients know what they want.  What they don't do is really think about what will happen if they don't get what they want.  When we sit in negotiations and the other spouse rejects our client's offer, the client often struggles to find another position that will be acceptable; and they are usually not successful at that time, in that room.  Their struggle is at the table when it should be before they enter the room.  If they pin all of their hopes on that one thing, then not only can they not think of a back up, they also feel like the negotiations have failed.  Think how much better a client would feel if they know that they are going to fight as hard as they can for the thing they really want, but if they can't get that, it would still be a success if they got something else instead, or if they picked up a piece of information that would help them come up with a new settlement idea in the future.
     Those of us who toil in the Trenches could also learn a thing or two from him.  Many times, we go into a mediation or a negotiation with our only goal being to settle the case.  Sometimes that's not possible.  There are other goals we could have as backup if we gave it advance thought, but we usually don't.
2.  Practice gratitude.  All the way throughout Meb's story, you see instances of gratitude.  His family escaped war-torn Eritrea, and made its way, slowly and painstakingly, to the United States.  They suffered a lot in the journey, but you won't hear it from him. He expresses gratitude for being able to leave Eritrea when many could not.  He's grateful it gave him the opportunity for an education and his running career, when so many others did not have that chance.  He's grateful for the fans lining the race course, cheering him on, even in races in which he suffered great pain, injury and disappointment.  He's grateful to be able to inspire others.  He's grateful to have a wife who understands him and supports his work.  Gratitude exists at every turn of his life, even when he is forced to drop out of a race.
    This lesson isn't new for this blog.  Gratitude is a practice.  It's an important practice that serves us all well, especially when things are not going as we have planned.  If you don't exercise it often. then gratitude desserts you when life doesn't go as planned. It's especially important to exercise it when things are going poorly.  It doesn't matter how small the thing for which you are grateful; it is the practice of gratitude itself that has the power to lift you up and sustain you. 
3.  Community is vital.  What I've noticed through all of Meb's books is the constant emphasis on the importance of community, on every level.  The community of his family, without whose support he couldn't focus on his running or be the ambassador for running he is.  The community of runners, who train together, talk during races and sometimes even cross the finish line together, hands united.  The running community that pulls together no matter whether they're Meb or the 16 minute miler.  The community of country which Meb felt keenly when he won Boston the year after the bombing.  Meb describes getting a catch in his throat when he passed the point in the New York Marathon where one of his colleagues had died the year before.  Meb's description of running Boston the year after the bombing is amazing:  he wrote the names of all the people who died on his bib, he crossed himself when he passed the spot of the bombs, he got choked up when he realized that an American was going to win Boston in the first post bombing year and what that represented to Boston and America. What's fascinating about Meb is his continuous multilevel view and appreciation of all of his communities.
   Folks in the Trenches are suffering a crisis of community.  Their identity as part of the community of family is changing; they are losing part of that family because of their divorce, and the part they aren't losing is changing.  Their position in their local community is changing; they find out who their real friends are...and aren't. It is overwhelming and crushing to discover that not only is your family changing, but so is your immediate world.  Most people have more levels of community to draw on than they think.  It's just that when large parts of their world are falling apart, they don't think about it or look for them.  All you need is one level to form a base to rebuild the others.  Trust me, I've done it.  Look for a community, search for it: it's there.

Alright, I have a fourth takeaway from Meb. 20 miles is halfway.  I know, a marathon is 26.2 miles, so 20 miles isn't really halfway.  The race, however, is won between miles 18 and 26.  The person who goes out too fast rarely has enough left to win.  Most of the strategy and the moves toward the lead take place well past mile 16. If you don't have the stamina and the training to pick it up and surge toward the end, then you won't have a chance of winning or perhaps even finishing.  Life here in the Trenches is like that.  Most clients approach a divorce like a 5k, and enter into it going full tilt, which is what you do in a 5k.  Life in the Trenches moves a lot slower than that and a case takes longer than you think.  Treat it like a marathon you want to win, not like a 5k you sprint.  20 miles is halfway.  Build up your stamina, plan for the distance.  Here in the Trenches.

Thursday, April 4, 2019

What is Collaborative Law; What isn't Collaborative Law?

I was on one of my family law listservs this morning, when the conversation quickly veered from the strangest things we've ever seen clients fighting over to bashing collaborative law.  I can’t understand why lawyers are still bashing collaborative practice when it has been around for 19 years. I have been trained to practice Collaborative Law since 2002.  I have been teaching collaborative practice through a training group AND under the auspices of Administrative Office of the Courts of Maryland since before 2008. I have taught collaborative practice as a law school class at the University of Maryland’s Francis King Carey School of Law, an ABA accredited law school, since 2014.  I also note that 19 states (including DC) have passed versions of the Uniform Collaborative Law Act as either a statute or a rule, and two more have introduced the Act into their legislature.  Collaboration is here to stay.  Here are are some observations and misconceptions about collaborative practice:

1.    “Only the lawyers who aren’t competent to try cases or litigate the old fashioned way do collaborative law.”  As in any area, there are competent and incompetent Collaborative Law practitioners.  My experience, especially here in Maryland where we’ve hit a tipping point in Collaborative practice, is that it is usually the more experienced and competent lawyers who practice this way.   

2.    The goal of Collaborative practice is to reach a durable acceptable agreement.  That, I believe, is the same goal of litigated cases that settle and mediated cases.  The type of agreement drafted in a collaborative case is no less detailed than any other agreement I draft in any other case.  If the agreement stinks, that’s the quality of the lawyer and of their collaborative counterpart, not the process.

3.    “Collaborative law takes the early, easy money.”  What collaborative law does that no other process does on a regular basis is have a discussion and maybe more than one of where the money to pay for the process is coming from.  Upfront and early.  Unlike in other forms of representation, the goal is for the family to make decisions of what funds they have for their divorce and how to allocate them.  They make that decision, unlike in traditional practice where the lawyers make that decision and for the most part we let the client figure out where to find the funds.

4.    Collaboration with a little “c” is the same as Collaboration with a big “C”.  It’s not.  Actually, it’s nowhere close.  I have been practicing family law for 30 years.  I know most attorneys in town and I get along with most of them.  We are collegial and friendly, if they are not actually friends of mine.  When we get a case together that is not collaborative, we call each other, we talk about what documents we might need informally to get conversation started, AND we start talking about how the case should resolve.  Because “business as usual” means that we know best about how to settle this case and we expect the clients follow our lead.  If it were a bus, the attorney would be driving the bus, and the client would be a front row passenger, asking whether we can turn one way or the other, but not in charge.  Because we’re driving the bus, we internalize when the journey does not end where we want it to end or takes a different route – we become invested in the outcome.  As people first and attorneys second, that’s really easy to do.
        In Collaborative cases, the client is driving the bus and we are in the front row with the map.  They’re going to get us where we’re going, and we’re going to guide them there.  They are in control of the outcome and we need to let it go.  In all the years teaching this process, that is the hardest thing for traditionally trained lawyers and law students to do because we are trained to know the law and have the answers.  
         I’ll say one other thing on this point that I seen.  We think we listen well.  We stink at it because we listen to solve the problem and not to understand the problem and its underlying causes and emotions.  Often in the small c collaborative cases, we think we are solving the problem but we’re solving either the wrong problem or only part of the problem because we stopped really listening to the client when the problem and solution became clear to us.  I see it in my law school class as well as in training with practicing attorneys – we all jump to the solution. (And a big "thank you" to Suzy Eckstein for the bus driver analogy.  It's my favorite)

5.    “The parties waive the right to use information gathered in the collaborative process at trial.”  That’s not true.  The process, like mediation, is a confidential process, either by contract or by law.  That means that any information created within the process is confidential and not to be used in court.  As a mediator, you don’t get to use my notes.  In Collaboration, you don’t get to use schedules and compilations created as part of the process. The information underlying those documents, as well as other information that could be investigated to lead to other pieces of evidentiary proof is always available to use outside the process.  It is what it is, and that’s why in states where adultery is a bar to alimony, you have to have a long talk with your client about whether to use collaborative:  the statement in the process is confidential, but the dirt the other spouse digs up outside the process after finding out this little tidbit is not.  This is the same in any process.

6.    Collaborative Law recognizes that most people want to do the right thing.  Most people involved in a dispute don’t have all the information to know how to do that.  Parents think all kinds of things when it comes to their children; some of them are downright harmful, but many parents agree to these things because they don’t know any better, not because it is the right decision.  In collaborative practice, the goal is to empower the clients to make their own decisions by providing them information and support and helping them reality test the options they create.  Like Gary Borger said, that’s why we have child specialists to provide the clients with information about child development and information about their own children’s abilities to comprehend what is going on and handle whatever arrangements the parents decide.  Also, as we all know, not only does emotion get in the way, but also exacerbates the underlying communication issues the clients have.  A divorce coach or coaches help them develop strategies and skills to both negotiate for themselves and to communicate effectively with each other moving forward.  Collaborative helps give them the tools and foundations to solve future problems which supporting and advising them to solve their present ones.

7.    In Collaborative practice, we work hard to ensure that client not only understands the decision made, but also the why.  How many times do we in traditional models have clients come to us to modify agreements and their understanding of the agreement is 180 degrees from what the agreement really says?  I see it with my parent coordination clients all the time.  You think they understand, and they think they understand, but they don’t really.  In collaboration, we discuss the whys and whats of each decision, and check in again and again to make sure our word smithing matches their intentions.

My colleague here in the Trenches, Doug Sanderson (who trained with me in 2002) asked me to address the one issue that seems to get the most negative traction – attorney disqualification if the collaborative process does not result in a comprehensive agreement.  What I like about teaching the subject fairly frequently is that it forces me to think about the whys of Collaborative practice, as much as the hows.  I believe disqualification is essential to the Collaborative process for a number of reasons:

1.    The client’s instructions and objectives.  The client’s instructions, in writing,  to the attorney are to help them arrive at a mutually agreeable, durable agreement that meets each of their needs and the needs of their family (or other parties affected by the agreement ) moving forward.  That instruction is inconsistent with the client’s instruction to the attorney in any other process, which is to represent their position, which may not meet the needs of the other party or the family moving forward.

2.    Waiver of privilege and protection of confidentiality.  The process itself is confidential and by participating in the process, the client agrees to waive attorney/client privilege within the process.  There really is no way to put that cat back into the bag if the process is unsuccessful.  Also, by statute, rule and contract, either party may prevent disclosure of a collaborative communication.

3.    The difference in the role. The attorney’s role in Collaboration is for settlement only. If I am representing a client in mediation or lawyer negotiation, my role is not simply settlement.  I am aware that whatever happens in those processes, I can take the matter to court. There is always that coercive threat.  That difference in role means that I am not as quick to terminate the process when the going gets tough, but rather hunker down and try to find another way around the impasse; the client shares that interest because to do otherwise means engaging other counsel.

4.    Maintaining the focus.  Collaborative conversations are not positional bargaining.  In fact, they are diametrically opposed to it.  I keep something in my back pocket if I know I might be going to trial in a matter, which is something I don’t do if I am Collaborating – because transparency is one of the hallmarks of the process, I am required to instruct my client to reveal all information which may be pertinent to a decision, and also no one can take advantage of another’s mistake of law or fact. One of the hallmarks of the Collaborative process is the ability to reach resolutions that are creative, out of the box and not something a court would necessarily do.  Collaborative’s sole focus is on helping the parties create a durable acceptable agreement that meets the needs of all parties and those affected by the agreement.  Requiring disqualification maintains that focus without distraction.

5.  My friends here in the Trenches, Doug Sanderson and Bruce Avery, added the following points:
 From Doug: "As the spouses head down the road of Collaborative divorce, they will invest not only time but also money, which in the vast majority of cases is a limited resource for both, and certainly for the family. That prospective investment in Collaborative divorce, paired with the prospect of needing to hire a different attorney (and other professionals if/as needed) if the Collaborative process fails and the spouses need to pursue a litigation process, is explained to the client up front as being another positive reason why this process can work better, on top of all the reasons you’ve listed. It may sound counterintuitive to some, but I suggest, and have observed, that it constitutes a “buy-in” to the Collaborative process that helps keep clients in it."  And from Bruce:  "Another side to disqualification is it takes away any financial incentive for the attorney to throw the case into litigation.  Not that anyone on this listserv would do this, but litigation earns me a lot more money that collaborative (or anything else).  There are those who I think do push things into litigation that don't need to go there to the economic benefit of the attorney."

I could go on and on, and some of you probably think I have.  Let me close with a few thoughts.  First, Collaboration, like mediation and litigation is simply one method of dispute resolution.  It doesn’t work for everyone and it is not appropriate for everyone, attorneys and clients alike.  Second, those of us who work in the Trenches are required by our ethics rules, and if we are talking Collaboration in a state which has passed the Uniform Collaborative Law Act, by statute, to obtain the client’s informed consent to a course of action.  I am at a loss at how folks who have not taken the time to understand Collaboration can actually do that.  I don’t care whether those toiling in the Trenches like Collaboration or think it’s some new age jumbo jumbo, I believe we have a duty to discuss it with our clients as part of their process choice.  Here in the Trenches.