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.

Saturday, March 2, 2019

Groundhog Day?


If you keep doing the same thing, you'll get the same result.

We're back from Disney Princess Half Marathon Weekend.  It was a heckuva humid day for the 10k.  Of the four of us in my family who were running, one of us runs all the time, two of us are in good shape because of their jobs, and one of us.....doesn't train at all.  Three of us handled the 6.2 miles and the humidity just fine; one of us really did not.  In fact, that one handled it so poorly that we were concerned about heat stroke.  Nevertheless, all four made it across the finish line more or less together.  After the race, the one of us who didn't do so well said they'd do better next year.  My response?  Are you going to train?  The answer was "not really."  Well then, the result won't change.

Here in the Trenches, so many of our clients are like that.  They were unhappy in their marriages.  They felt they married the wrong person.  They didn't like the way they were treated.  They are unhappy with their co-parenting interaction with their other parent.  What do they do about it?  Some of them get into therapy, take parenting classes, do a lot of introspection.  Most of them do nothing.  Then they wonder why their co-parenting doesn't improve and why they marry the same type of person over and over again.

Insanity:  doing the same thing over and over again and expecting different results.

Here in the Trenches.

Sunday, February 17, 2019

Divorce Can Be Like Disney's Princess Half Marathon Weekend - If You Let It


It is almost time for the Disney Princess Half Marathon weekend.  That is the weekend each year where Daughter and I run a 10K on Saturday and a half marathon on Sunday.  I love to run, so I train for the races.  Daughter hates running with a passion, so she runs almost not at all prior to the big day.  Yes, she is a talented personal trainer, but aerobics is not her thing.  The running part of the weekend usually goes great on Saturday, but on Sunday, my baby is dragging.  She is miserable.  She hurts, she complains about running, and she does the race anyway. One of us usually gets sick afterward from the stress on our bodies.   Every year.  She posted Friday on Facebook that Princess Weekend is her favorite weekend of the year, bar none.  How can that be? She gets up before dawn on two days of our four day weekend to do the thing she absolutely despises and which makes her body hurt.  How can this weekend be her favorite?  Easy.  First, she runs it with me.  It's not that I am the best running companion, and in fact, I get a little aggressive at those people who don't follow the rules.  It's that we do it together. Second, we have made it our thing.  We meet the characters and get our pictures taken.  She out kicks me to the finish line every time.  Funny thing is, it's only been our thing for 6 years, and one year she couldn't run and we both missed doing it together.  Third, we spend the weekend with family.  Now to many people, that might not be a plus, but to us it is.  We get to spend time with my Mom, which we always love and try to do often.  We also spend time with my aunt and cousins, and that we only usually do at Christmastime.  I don't know about you, but as much as I love the holidays, they are a bit hectic and stressful, so it's nice to spend some down time with those folks. Fourth, we are at our favorite place - Disney World.  Even though we only go to the parks one day of the weekend, we usually do something special.  Disney wants everyone to have a magical vacation, and it feels good to be in a happy place, especially with people we love.  Finally, we know that none of the above would actually happen if we didn't have these particular races to run every single year.  That alone makes all the pain and physical misery worth it for her.

I had breakfast with a friend from the Trenches today, and we were talking about divorce.  She was saying how it really bothered her that so many of us in the Trenches only focus on the negative aspects of divorce.  We both recognize that there are plenty of negatives.  There are, however, a lot of positives as well.  For so many people, divorce represents a new beginning.  It is a time to reinvent themselves.  It is a time to configure the family relationship into one they always wanted but didn't have.  It is a time to start over and do things differently the second time.  As we talked, I thought a lot about so many of my clients over the years.  What I thought was that there were quite a few people who were unable to see anything positive coming from their divorce.  The majority, however, recognized that it was better to live life with someone who wanted to be with you rather than someone who didn't, and who saw, as time went on,  opportunities rising from their divorce which would never have happened had they remained with their spouse. They became the parent they wanted to be; their spouse became a better parent.  They were able to shift gears and do things their spouse never wanted and explore other interests.  They could take their life in a whole different direction.  Yes, divorce sucks.   Realizing your marriage has ended is awful.  The process is painful and time consuming.  The emotional toll on you and your family is immense.  The process itself is miserable.  The entire experience of uncoupling doesn't have to be negative.  Divorce can bring with it new opportunities that would never have presented themselves otherwise and new chances to do better and different as life moves on to a new chapter.   I know it's hard to think that way when you're in the midst of the process, but I hope you will save the idea some space and explore it once you're done.  It's how Daughter thinks Princess weekend is her favorite of the year.  Here in the Trenches. 

Sunday, February 10, 2019

Valentine's Day Gifts From Here in the Trenches


Valentine's Day is this week.  What are you going to get your beloved?  For most people, flowers, cards, chocolates and a nice dinner are thought of as lovely gifts.  Although those are nice, those are not the gifts those of us in the Trenches would like you to get this holiday.  Here are a few of my favorite Valentine's Day gifts.  I'm warning you, they're not sexy, but they will go a long way to keeping you out of my office.

1.  A deep discussion about finances.  OK, you want to buy something to go with that, I understand.  How about a book like Official Money Guide for Couples?  Don't just hand it to your significant other; have a conversation around money.  Anyone who works here in the Trenches will tell you that most of the people we see never talk about money.  They don't discuss whether their accounts should be joint or separate.  They don't talk about debt and how each of them feels about it (much less how much debt each of them has) and paying for it.  They don't talk about expectations for their financial future:  will one of them stay home with the children; how will they feel if one of them earns more that the other; what happens if one of them has to relocate for work?  What will you do if you don't agree (and maybe you already don't)?

2.  As you gaze at your sweetie over the candles at dinner, it's also time to talk about children.  Do you want them?  When is the right time?  How many?  What if you can't get pregnant easily?  What about IVF and adoption?  What if your child is seriously ill or disabled in some way?  What religion will they be, and how religious?  How will the two of you divide the caregiving duties?  Who will care for the children when you're not home?  What are your views on discipline?  Maybe you could watch "Parenthood" together and talk about the episodes?  Here is where you can buy the complete boxed series.

3.  You've heard of Gary Chapman's The Five Love Languages?  What about his other book, Things I Wish I'd Known Before We Got Married?  If you're thinking of popping the question, there's no better conversation starter.  Don't believe me?  Get War of the Roses or Mrs. Doubtfire instead.

4.  Just put down your cell phone and your iPad and turn off the television.  Most couples talk for less than half an hour a day.  That number decreases as the number of years of marriage increases.  Remember when you used to stay up all night talking?  Remember when deep conversations were a sexual turn on?  This Valentine's Day, give your beloved the gift of you.  You might get lucky.

Happy Valentine's Day.  Here in the Trenches.



Sunday, February 3, 2019

Counting Your Blessings


I miss baking my 100 dozen holiday cookies.  I don't miss the stress of making all those cookies. I don't miss how my immune system would get run down.  I don't miss how sick I got each and every year.  I miss watching Christmas movies nonstop for 4 weeks.  Most of all, I miss how my friends came over to help.  I miss the warmth and  camaraderie of having everyone and their daughter here baking cookies in my kitchen with White Christmas playing in the background.  I was reminded of a song from that movie just this week, "Counting Your Blessings."  This past year (and two years before that), the family law section of our local Bar has put on an all-day Symposium.  OK, officially,  it is the family law section, but it really is just two of us from the section who organize and present it. Each of our symposiums has been awarded the state bar association's award for service to the bar.  This year, our local bar decided to present it to me at our annual meeting.  Our annual meeting is not usually well attended, so I expected to receive the award in a mostly empty courtroom.  That was not to be.  Two of my friends from the county down the road made the trip up the road in Washington DC rush hour to be there for me.  One of them isn't even a member of the local bar up the road.  It almost made me cry to have people who cared about me in that courtroom....and absolutely made me count my blessings.

You see, I've had a particularly awful year.  I'm not going to go into details because they aren't really important to this post.  Just trust me on this.  The year has made me count my blessings and my friends.  Just like most of my clients here in the Trenches.  Most of them are having the worst years of their lives.  They've found that not only are they losing their spouse, they're also losing their friends.  It's funny how fair weather most of our friends really are.  Most of my clients come into my office feeling that their life is a series of awards received in an empty room.  They're looking at it all wrong.  I know when everything in your life is going wrong, it's easy to focus on the negative. That's human nature - negative begets negative.  The problem is that when everything in your life is going badly, continuing to focus on the negative just ensures that you stay down.  Sometimes, all it takes to start you toward finding your way out of the darkness is knowing you have one or two friends who will drive up the road in rush hour traffic to see the bar president hand you an award.  It doesn't sound like much, but it's actually everything.  Count your blessings; and you have plenty of them, even if it doesn't seem like it.  Here in the Trenches.

Sunday, January 13, 2019

Safe House



I love to run.  If I could run all day, every day, I would.  It is my exercise.  It is my therapy.  It is my fun.   I also love Disney.  I love the parks, the hotels, the characters.  It is my happy place.  It is the place I go to with the people I love.  I love combining my two loves, so I RunDisney.  There are a lot of people like me.  They congregate in different places, and one of those places is FaceBook.  I belong to two Disney running Facebook groups.  They couldn't be more different.

Both groups are composed of members who love Disney and love running.  In the one group, all the members also are fans of a specific Disney podcast, and the group is also smaller.  In both groups, members post questions about running in general and Disney races in particular.  In both groups, people post their runs and their times.  Yet, one group feels safe and one does not to me.  In only one group do I post my post-run photos and times.  Why is that?  Why does one group feel safe and one does not?  Here are the difference between the groups.  First, I have never heard a negative or snippy comment from any poster in the "safe" group.  That doesn't mean that they don't discuss the difficult topics.  They just put a more positive and kinder spin on on it.  Second, this group makes it a point to have in person meet ups (and many of them) during each RunDisney weekend.  Probably the second difference is the reason for the first, but I don't know. The "safe" group feels more like friends.

When you end up in the Trenches, you find out that there are a lot of other people who have been there before you.  So many of them want to tell you about their experience, because after all, you have both been in the same place.  Some of these people are wonderfully helpful.  Others are really critical of you and your case.  They tell you how they got screwed in their divorce, or that they got a much better deal than you're getting.  They tell you their attorney was tougher than yours.  They make you question everything that's happening to you, every decision you make  They make you feel terrible about yourself.  Why? Because you ignore your gut. You see, I get it.  I belonged to the the "unsafe" FaceBook group long before I joined the other.  I read all the posts, yet I never posted.  Something in my gut told me not to trust, that it wasn't safe.  I listened to it, but I didn't know I did until I joined the second group and knew what feeling safe felt like.  I bet if you think really hard, you can say whether a friend's or your attorney's advice felt "right."   Does what your attorney advises feel right?  Does what your friends tell you feel right?  If so, which friends?  Think about why you feel that way.  Dig deep.  Think hard.  Trust the feeling. Trust your instincts.  Read Gavin deBecker's The Gift of Fear.  Here in the Trenches.

Sunday, January 6, 2019

The Wedding Bell Blues?


My cousin is getting married!  I'm so excited for her.  I'm not so excited for her mother, my aunt.  It is tough being the mother of the bride, no matter if you're planning, paying for or just being in the wedding party.  As the mom of one of the guests of honor, a lot of eyes are on you - and a lot of people are judging how you look (admit it, you check out what the mothers are wearing).  My aunt is not your traditional mother of the bride.  She never wears dresses, in fact in almost forty years, I have only seen her in a dress maybe twice, and one of those times was in her own wedding.  Most mothers of the bride wear dresses, and this fact is causing both my aunt and cousin a lot of stress.  My aunt wants to look beautiful for her daughter's big day, but she also wants to be comfortable in her skin.  My cousin also wants mom to look beautiful, but she's concerned that pants may not be formal enough.  My aunt is nothing if not determined to look beautiful her way.  My mom, my aunt and I spent almost an entire day searching online for an appropriate outfit.  Still nothing purchased, but she's getting closer to finding an outfit that pleases both her and her daughter.

I know, I appear to be reaching for a connection to the Trenches, but bear with me.  When clients come into the Trenches, many times they think a divorce is a divorce is a divorce.  If their friend was married 30 years, stayed home for 20 and got a significant alimony award, and they were also married 30 years and stayed home for 20, then they should get at least the same significant alimony award.  Easy, peasy, breezy.  Unfortunately, that's not how it works.  Every divorce, like every wedding, is unique.  No two people and no two marriages are alike.  It follows therefore, that every divorce would also be different.  And so they are. You did your wedding your way, in a manner that speaks to you.  That also how you should handle your divorce.  Here in the Trenches.