The first Day of Daylight Savings Time

Daylight Savings Time kicks my butt every year.  I hate losing the extra hour of sleep.  I always plan to get to bed extra early the night before, and either that doesn't happen, or I end up tossing and turning for hours. This year, I also managed to have an earache.  I woke up exhausted.  I had a headache and an earache and felt generally awful.  The problem is, I still had my morning 7:30am walk with a friend, followed by meeting Max's walking expectations.  Then, there was my weekly yoga class at noon.  Tomorrow morning, I have to be up at 5 and out the door by 6 to babysit my granddaughter. Life doesn't stop just because Daylight Savings Time is getting the best of me.

Divorce is kind of like Daylight Savings Time.  Most people, if they're really honest with themselves. know in a small corner of their minds that their marriage is ending. Maybe they plan for it a bit, maybe they don't.  It comes all the same.  It kicks their butts, and knocks them down.  Life, however, goes on.  There's still work to be done, children to be cared for, and relationships to maintain.  Life doesn't stop just because there's a divorce.

In past years, I would power through the first day of Daylight Savings Time.  It wan't going to get the best of me!  So, I dragged myself through the day, doing everything I normally do.  It took me the better part of a week to recover.  Not this year.  Sure, I went for my walks and I went to yoga.  I also took a nap, sat and read a book or two, surfed on social media and laid around petting Max.  (I also took 2 ibuprofen). I acknowledged that today was different than other days and I couldn't treat it like it was the same.  I still did what I needed to do, but I took care of myself for the rest of the day.

When people are getting divorced, somehow they see it as a sign of weakness when they're exhausted, overwrought or just plain sad.  It's kind of a badge of honor that the divorce won't get the better of them.  Or maybe it's that they won't give their ex the satisfaction of knowing that getting divorce affected them.  I understand that desire.  The problem, however, is that divorce can be emotionally and physically draining.  It can also be a long process.  It is guaranteed to exhaust, overwhelm and sadden you.  When you don't acknowledge those facts and actively plan for them by engaging in self care, you could wear out before the end (which could be disastrous and lead you to agree to a bad settlement just to be done), not be in a frame of mind to settle (which could lead to an unnecessary trial or bypassing a good settlement) or take far longer to recover (and in the meantime, those near and ear to you suffer).    Self care is not being self-indulgent; it's simply good sense.  Here in the Trenches.

Memories Matter

#1 Son and my Daughter in Love gave me a ticket to join them to see DIsney on Ice with their family as my holiday present.  I am certain it would not be the ideal holiday gift for many of you.  For me, it was the perfect present.  I love Disney, so you would think that was the reason it would appeal to me.  That’s not it.  It was the experience.  As far as I know, this was Granddaughter’s first live show.  It involved Disney princesses, which is a bit of an obsession with her right now.  I got to be with her as she experienced one of her “firsts,” and it involved something we both love.  Beyond that, it was beyond value that #1 Son and Daughter in Love wanted to share that first with me.   It was magical for all of us to watch her face as she saw her favorite characters come to life.  It was an out of this world experience to see her dance to the music and sing along with the songs.  She was so excited to have all of us with her. I will never forget that night.  The gift was priceless.  

Another gift #1 Son and Daughter in Love have given me is the opportunity to spend Monday mornings with Granddaughter. We are alone together every Monday her parents are working from 7am until 10am, when we are joined by the other Gaga.  We play games that are different than anything she does with anyone else, just like what she does with Mommy and Daddy and the other Gaga and Papas are different.  They’re our thing.  We spend Mondays making memories and sharing love.   I bring her nothing except me and pumpkin pancakes.

So often when families go through a divorce, money is tight and parents can’t afford to buy their children the things they ordinarily would have. Even worse, in some cases, one parent has the money to buy those things and does, and the other parent doesn’t.  When money is tight, parents worry that their children will suffer.  They worry that their children’s memories will be ones of deprivation.  They worry that the children will prefer the parent with money that’s being spent on them.  They worry that giving their children time with them isn’t enough.  I’ve said it before and I’ll say it again, parenting is not a sprint; it’s a marathon.  Sure, in the short run, the parent with the most bling may be the preferred parent.  In the long haul, however, what children have left are memories.  Things don’t build memories; people and experiences build them.  Don’t worry about the cost - a board game, hide and seek, building a snowman, and reading stories all cost nothing but mean everything to your child.  Here in the Trenches.

How Litigation Compares to Mediation and Collaborative Law

We have had some massive rainfall here in South Florida.  Not only is this much rain out of season, but it is also much more water than the saturated ground can handle.  The above is a picture from one of the neighborhoods I run through while I’m down visiting Mom.  Running long distances gives me time to think, and as I ran by all this water, I thought of the Trenches.  Specifically, I thought about how all of this water relates to choosing a process for your divorce.

Divorce is a time when people are flooded with emotion.  The flood is unexpected and unwanted because the emotions are largely negative.  Yet, folks are expected to make decisions which will govern the rest of their lives while all of these feelings swirl in their minds.  I don’t know if you can see it in the picture, but there’s a car in the driveway to the left.  I’m imagining the driver coming out of the house to go somewhere NOW, and being faced with driving through all of that standing water to get out.  The driver doesn’t know what’s under the water, whether it’s safe, whether the car will be swamped.  What they do know is that they have to be somewhere now and they have to use that car to get there.  That’s what litigation feels like.  It feels like having to make huge, important decisions under the pressure of time and without the luxury of gathering any last minute information necessary to make an informed decision, and often without having any control over the outcome.  Settlements often occur on the eve of trial, or a person in a black robe makes the decision instead.  

What if, instead, the driver knew about the water and knew that in a few hour’s or a few day’s time, they had had to be somewhere?  They could wait and see if the water subsided.  They could build a ramp or a bridge over the water.  They could call a friend for a ride.  They could call an Uber, Lyft or taxi.  They could walk.  They could postpone their appointment.  They could call an engineer to advise them.  They could do a lot of things because they would have the time to gather the necessary information, process it and make an informed decision.  That’s what mediation and Collaboration feel like.  They feel like having the time to reflect on what’s important. They feel like spending as much time as necessary to get the answer that’s right for the family.  They feel like being able to ask that one last question to get the one piece of information that will make all the difference to the outcome.  They feel like having the freedom to ask the person with the most pertinent knowledge their opinion. They feel like reality testing possible solutions until they find the one that makes the most sense.

If it were you, what would you rather do?  Here in the Trenches.

An Informed Consumer : The Successful DIvorce Client

What kind of car do you own?  Is it a Kia?  Is it a Hyundai?  Maybe a Mercedes?  What about a Tesla?  Why does any of this matter? They're all just cars, right?  Wrong.  You may think you're just buying a car, but you're not.  You're buying a statement of who you are.  You are buying an experience.  It just happens to look like a car.  The people who think Kias are cool cars are not the people who would always buy a Mercedes.  The folks who drive Teslas are not the ones who buy Hyundais. Mercedes screams luxury and wealth.  Tesla says you're cutting edge as well as environmentally friendly.  Kias are cute but utilitarian cars.  Hyundais are for folks who want a little luxury but not the luxury price tag.  Sales people know this.  They sell the image and the experience that goes with it.  Check out the showrooms for the different car brands if you don't believe me.

Lawyers think they sell legal knowledge.  They think they sell legal expertise.  They think they sell their courtroom experience.  They're wrong.  They sell the process itself.

Most clients assume competence.  You heard me, they assume competence.  That means all the things lawyers think clients are looking for, they assume we already have.  They come into our offices assuming that we know how to solve their problem.  They trust that we know the best way to do that. Here’s what they don’t know.

There are 5 possible processes that a client can use to resolve their problems in the Trenches:  kitchen table negotiations, mediation, collaborative practice, lawyer-to-lawyer negotiation and litigation.  As lawyers, we have an ethical duty to make sure our clients exercise informed consent over which process works for them.  That means we have to describe in detail all 5 processes.  The difficulty is that every lawyer has a preference for process.  Just like the Tesla dealer isn’t going to tell the customer that a Prius is also environmentally friendly at a much lower price tag, or a Mercedes dealer won’t talk about how luxurious a Hyundai Genesis is, so a lawyer who likes to litigate is going to skew toward emphasizing litigation over mediation.  Those same lawyers will downplay the value of collaborative practice.  Likewise, lawyers who love collaborative practice will emphasize the benefits of that process over litigation or mediation.  Clients trust us, so they follow our lead about the choice of process and rarely ask questions.  That might be a mistake, because process determines outcome.  Each of these processes has a different result in terms of experience, cost, future relationship, and even outcome.  Just like there is a type of car for every type of person, there is a type of process that is appropriate for every family.

What does all of this mean for clients?  It means that, just as with everything else, clients need to be well-informed consumers.  Lawyers need to be in less of a rush to suggest process, and educate clients of their process options.  Clients need to insist on being fully informed on the choice of process, which includes the pros and the cons in an even-handed way.  Often, lawyers are afraid to spend an entire appointment doing this important education piece because they don’t think a client would find value in a meeting in which they do not come away with “legal advice” about their problem.  To be sure, there are clients who simply want a solution to their problem and aren’t interested in process choice.  Most of those folks don’t read this blog.  Most clients are completely unaware that their choice of process determines their outcome; once they do, once they know they have a choice as to how they move forward, these clients see that a discussion of process choice is the most important discussion they will have in their family law case.  For them, a discussion of process choice is legal advice.  Most clients are thrilled to know they are not forced to fit their experience into one type of process because they want at least some control over their future.

What kinds of questions should the client ask for each process?  Here are a few:

1.  How much control would I have over the outcome?  Who makes the ultimate decisions?
2.  How much would I be required to participate?
3.  What is the lawyer’s role?  Are there differences in confidentiality and information sharing in the processes?
4.  What if I have trouble communicating to the other party?
5.  How do we gather necessary information?  How can we be sure we have it all?
6.  What happens if the other party isn’t being honest?
7.  Why would I choose one process over another?
8.  What might happen after the end of our case?  What is the likelihood of future issues?  What is the likelihood of resolving future issues?
9.  How does this process help me reach my goals for the future?
10.  What is the lawyer’s preferred method of dispute resolution?  Do they practice all of the processes, or just some?  Why is that - what is their philosophy?  How comfortable are they in each method?
11.  How quickly can each process resolve our issues?
12.  What is the range of costs for each process?  What drives the cost for each process?
13.  How are decisions made in each process?

Know what you’re buying and be an informed consumer.  Here in the Trenches.

Talking About What Matters - The Wound That Heals

Family comes in all shapes and sizes.  Some family, you're born with; some people become family.  Twelve years ago, I became part of a group of people who joined together to teach Collaborative Practice to other professionals.  We were, and are, an interesting group of people.  These folks are amazing.  They are some of the smartest, deepest thinking people I know.  You should see the amazing trainings these folks create - they take your breath away.  OK, I also had a role in creating one or two trainings, but every group of smart folks needs a worker bee like me.

When we started as a group, we had plenty of growing pains.  It looks us all a while to let down our guards (OK, it took me a while to do that).  We got to know each other gradually, over the course of quarterly meetings over the years and multi-day trainings where we ate breakfast, lunch and dinner together.  We became friends and then a family of sorts.  Unfortunately, as wonderful and supportive family can be, it can also be a little bit dysfunctional.

Here's the deal with family.  Over time, the members stop putting the effort into the relationship like they did in the early days. The members forget to tell each other how they feel.  They forget to tell them how much they appreciate them.  They stop talking about the things that matter.  They say thoughtless things that hurt.  The wounded party doesn't feel they can say how they feel and why.  What happens next is that everyone develops their own internal dialogue about the relationship in which they make assumptions about everyone's motivations.  Those assumptions are almost always wrong, but because no one is talking about what matters, the wound festers. Sometimes, that wound is fatal to the relationship when it isn't debrided, cleaned and exposed to the air.

You would think that when a relationship is important enough, people would do anything to repair it. If you ask most people, that's what they would tell you. The problem is that debriding a wound is uncomfortable, painful even.  It also makes them vulnerable.  People don't love pain and they avoid vulnerability at almost all costs.  They especially don't love experiencing it willingly.  So, they avoid it, even if it means a relationship dies.  We see it all the time in the Trenches.  We've had a little bit of that in our training group.  Even though we're collaborative professionals, we're still people, and sometimes we forget to talk about the things that matter too, and recently we discovered that there were things we should have talked about and feelings we should have acknowledged, but didn't.

Once a family gets to that point, they need help to talk about the things that matter.  Most of the time, when they come into the Trenches, they don't get that help.  Instead, the professionals involved erect more walls, create more distance and reopen old wounds.  The family relationship gets worse and not better.  Of course, the family still has to interact, so that's not helpful.  Or perhaps, they decide to no longer interact, ending the relationship, and that's not helpful either.  What if, when a family came into the Trenches, all of the professionals were committed to helping them communicate, to say what needs to be said, and to find a way through the hurt, misunderstandings and move forward with a better relationship into the future?  What if those professionals guided them to reconnect with their common purpose and goals, instead of focusing on the things that drove them apart?  The family would stay together, probably not in the same house, but they would be able to be there to support each other as they move on their separate paths.  That's Collaborative Practice.  So much better than drawing battle lines and staying in armed camps.  It's what our training group is doing with each other because our relationship matters.  Here in the Trenches.

Sometimes, It's Enough to Just Get Out of Bed

After over two years of sinus infections (OK, maybe just the same sinus infection I never overcame), visits to the naturopath, the acupuncturist, the Chinese herbalist, the immunologist,  and the ENT, I finally had sinus surgery 10 days ago.  It was major surgery - general anesthesia and overnight hospital stay.  The blessing and the curse was that I have had no pain. The other interesting thing about may surgery is that it's invisible to the naked eye - no one but me and my surgeon can tell I've had it done, unless I tell you.  Because I have no pain, I think I should be doing better than I am.  Because I can't see a scar, I think the surgery wasn't so serious.  I feel like I should be able to go to work, walk a few miles, do some shopping and housekeeping, and still feel fine.  The reality is I work half a day and need a nap.  I walk a mile or two and lie down for a couple of hours.  I do some housecleaning and have to be careful not to lift anything over 5 pounds, or I feel awful from the strain and I need another nap.  I have to keep reminding myself to cut myself some slack, because, after all, I just had major surgery.  It's hard to remember, but thankfully my body reminds

Grief is a lot like my sinuses.  It's invisible to the naked eye.  Unless the grieving person tells you, or are otherwise aware of the circumstances, you may never know they grieve.  Some days, grief is overwhelming.  Other days, you forget it's there....until it reminds you.  The problem with grief is its invisibility.  Others can't see it either and because they're not experiencing it, they forget it's there too.    After time, you figure you should be feeling better; other people figure you should be feeling better.  Funny thing about "should", all it adds is stress.  Just like my post-op self will feel better when I heal,  you will stop grieving when it's time, and not before.  That may mean never, or that may mean tomorrow.  You can't rush the grieving process.  Here in the Trenches.

Resilience - Not a Dirty Word

Image Credits

Creator:Timothy L. Hale

Credit:U.S. Army Reserve Command

Copyright:Public Domain

Resilience. It can be a good thing.  I know, at least in one of the counties where I try cases, “resilient” is a bad word when it comes to children. I beg to differ.  Resilience is defined by our good friends at Merrimack-Webster as “an ability to recover from or adjust easily to misfortune or change.”  We, of course, don’t want our children exposed to high conflict situations, but it happens, even in intact families.  Even as we don’t want our children to experience adversity, without it a child doesn’t learn how to deal with it or with change.  Most of us would rather our children are exposed to little disappointments in order to become resilient, but that doesn’t always happen; sometimes big and ugly things are on the horizon.  I think we do children a disservice when we don’t teach them resilience, because then they do not become resilient adults.

Resilient adults make good clients Here in the Trenches.  Their minds have a plasticity that allows them to roll with the punches.  They don’t play the helpless victim; they work on strategies to try to solve their own problems.  They know that their time in the Trenches is finite and that there’s a different tomorrow once they leave us.  Not all of my clients are resilient.

Of course, that raises a whole different question, why is it that some people thrive through adversity (and are resilient), and some do not?  Why do two people exposed to the same situation internalize it differently?  I don’t know.  What do those people who thrive have that others don't?  If you aren't naturally resilient, is there any hope of change?

Luckily, the folks at the Mayo Clinic think you can improve your resilience.  Here are their tips:

Tips to improve your resilience

Working on your mental well-being is just as important as working on your physical health. If you want to strengthen your resilience, try these tips:

• Get connected. Build strong, positive relationships with family and friends, who provide support and acceptance. Volunteer, get involved in your community, or join a faith or spiritual community.
• Find meaning. Develop a sense of purpose for your life. Having something meaningful to focus on can help you share emotions, feel gratitude and experience an enhanced sense of well-being.
• Start laughing. Finding humor in stressful situations doesn't mean you're in denial. Humor is a helpful coping mechanism. If you can't find any humor in a situation, turn to other sources for a laugh, such as a funny book or movie.
• Learn from experience. Think back on how you've coped with hardships in the past. Build on skills and strategies that helped you through the rough times, and don't repeat those that didn't help.
• Remain hopeful. You can't change what's happened in the past, but you can always look toward the future. Find something in each day that signals a change for the better. Expect good results.
• Take care of yourself. Tend to your own needs and feelings, both physically and emotionally. This includes participating in activities and hobbies you enjoy, exercising regularly, getting plenty of sleep and eating well.
• Keep a journal. Write about your experiences, thoughts and feelings. Journaling can help you experience strong emotions you may otherwise be afraid to unleash. It also can help you see situations in a new way and help you identify patterns in your behavior and reactions.
• Accept and anticipate change. Expecting changes to occur makes it easier to adapt to them, tolerate them and even welcome them. With practice, you can learn to be more flexible and not view change with as much anxiety.
• Work toward a goal. Do something every day that gives you a sense of accomplishment. Even small, everyday goals are important. Having goals helps you look toward the future.
• Take action. Don't just wish your problems would go away or try to ignore them. Instead, figure out what needs to be done, make a plan and take action.
• Maintain perspective. Look at your situation in the larger context of your own life and of the world. Keep a long-term perspective and know that your situation can improve if you actively work at it.
• Practice stress management and relaxation techniques.Restore an inner sense of peace and calm by practicing such stress-management and relaxation techniques as yoga, meditation, deep breathing, visualization, imagery, prayer or muscle relaxation.

You can become more resilient, and as you do, you are modeling resilience for your children. Children need that every bit as much as they need you to model appropriate conflict resolution.  Take care of yourself. Take care of children.  If you do, you will spend less time and money with me and be more satisfied moving you life forward.  Here in the Trenches.

Cheater, Cheater?

A friend of mine reposted the above photo on her FB wall the other day.  It prompted a lively debate. Some people posted that if you were planning a surprise for your partner, you might delete messages. OK, they have a point, but we all know that’s not what the statement in the photo is about.  To me the operative words are “gotta delete.”  I can think of reasons why I might want to delete messages, for example if I said something unflattering about my partner to another person in a fit of pique at them.  Of course that I couldn’t say whatever I wrote to my partner and that I shared our private business with a third party (who is not my therapist) are entirely other issues, but again, not the point of the statement in the picture.

An individual posted that the statement is  “wrong! They can be harmless but ppl get mad over nothing.  Avoiding a fight is not cheating.”  This person is correct that it’s not cheating.  It’s not.  That said, that you feel you “gotta delete” texts is a huge red flag.  When you have to edit what you say to ward off a pointless fight, that’s a sign of an unhealthy relationship and coercive control.  When your partner is “super jealous,” that is an example of a incomplete emotional development, and again, many times an excuse utilized to exercise coercive control.  This person went on to say that “you know how young men are.”  Uh, no.  My son is a young man, and I would be concerned beyond belief if he engaged in this type of behavior.  I’d be asking whether he had a concrete, articulable reason not to trust his partner, and if not, I’d strongly suggest therapy. That type of behavior is not just boys being boys - it is never excusable.  Staying with someone who acts in this way is also a sign of a need for therapeutic intervention.

Let’s look back at the statement in the picture.  I would add to it that if you delete your call history, talk to someone only in the wee hours of the morning or when your partner isn’t around, you’re already there.  Here in the Trenches what we see time and again are physical affairs that occur after long periods of heavy secret communications.  I understand that you are entitled to have private communications with other people.  Heck, we all are and we do.  I don’t condone your partner demanding to see your text messages (I am drawing a distinction between asking to see them because of prior unfaithfulness and demanding to see them, even with adequate cause).  That behavior’s not appropriate either.  The point of the statement in the photo is that if you feel you have to make sure your partner doesn’t know you are communicating with a certain person, have to make sure that your partner doesn’t see the extent of your communication with a certain person, or have to delete the content of your communications with a certain person, you are being unfaithful to the relationship.  Is it adultery? No, not because you’re not being unfaithful, but because adultery is defined by state law and in all states I know of, requires the physical act of sexual intercourse and marriage.

While we’re talking about being unfaithful, are there other areas of your life you hide from your partner?  My grandma used to cut the tags off clothes she would buy and quickly put them in the back of the closet for a week before wearing them, so that when grandpa would ask her if the dress was new, she could honestly say it had been sitting in her closet for some time.  Grandma’s story was part of the family lore, but it was cheating, not by the time we came along, because by then grandpa knew what she was doing and it was a game, but back when she started it when they had no money and that dress could make a huge difference in their daily lives. Financial cheating is not just embezzling money, buying a new car without discussing it, or withdrawing all of your retirement savings; it’s also the little stuff like hiding the credit card statements or lying about how much something cost.  Sure, you could be like that person on FB and say that it’s just to avoid a fight over something little, but we know in our hearts that’s not true.  We know there’d be a fight because what we did was dishonest, and instead of working on the underlying problem, we chose to lie about it.

Shall we talk parenting?  Of course we shall, because that’s my favorite topic.  How many sitcoms have revolved around something a parent did wrong with the children, which they made worse by lying about it to the other parent?  Here in the Trenches, co-parenting is hard.  it’s hard because we might not have agreed with our partner’s parenting decisions while we were together.  It’s hard because maybe our child was conceived when we didn’t really have a relationship with the other parent, and we ended up having a child with someone with whom we do not share values. It’s hard to say to the other parent that you’re not going to do it their way, explain why, and attempt to come to a compromise, so some people cheat.  They lie about the children’s bedtimes, what they had for dinner, how well they supervised them, whether they checked their homework.  They lie because they know the other parent won’t agree with them or because they have previously agreed not do the very thing they have done.  (Sort of like investing your intimate self with a person who is not your partner when you’ve promised to invest those very things in your partner.).  When you lie like this to the other parent, you are eroding the foundation of a strong co-parenting relationship rather than investing in the hard work necessary to provide your children with the parenting structure they need to thrive.

The lie, the deleting the text, erasing the call history, and cutting off the price tags are not what makes you unfaithful - the realization that you HAVE to do those things means that you know you are doing something that is wrong.  It may not be what I think is wrong or the person next to you thinks is wrong, but it is wrong for you, your relationship or your family.  It is wrong for the continuation of a relationship of trust.  It deprives you of the ability to build a stronger, more effective relationship.  It is cheating.  It is being unfaithful.  Even if you never have a physical affair.  Here in the Trenches.

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.

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.