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.

Beware of Black Ice

I went out early for a long run.  As I went down the road, I saw police lights and then a car that had crossed onto the road divide and hit a tree.  We had rain the day before, and even though it had stopped, a little water remained on the roads which promptly froze when the temperatures dipped to freezing.  Obviously, this car rode over one of those patches in the dark.  Maybe the driver was going too fast, but probably she wasn’t.  Maybe she didn’t see the black ice, or maybe she discounted it.  She simply wasn’t prepared for that road condition.  Don’t worry, she seemed to be unharmed.  The car was another matter.

Here in the Trenches, life is a lot like driving a car.  When emotions are raw and the case is heated it’s like driving in the snow or pouring rain.  People know to be careful.  They worry about moving too fast into another relationship.  They are prepared to have some emotional issues around the holidays.  They worry about how their children are going to cope.  All of those things are at the forefront of their minds.  When the case settles and the emotionality wanes, it looks like blue skies and dry roads. The problem is, that it’s really like the road I saw yesterday - mostly clear with largely invisible ice patches that trip up those who don’t expect them.  The holidays tend to be one of those icy patches.  Family traditions change, but the memory of them remains, and not just for the divorcing couple, but also for their children and extended family.  Often, the holidays are a time when people feel that loss keenly.  Sadness is OK.  Depression is not.

The holiday season can be a huge trap for folks who have ever been in the Trenches.  Everyone, including you, expects to be happy.  Sometimes, the loss is overwhelming and it comes out at unexpected times.  It catches you unaware.  Then, when you feel the loss, you also worry that your children feel it every bit as deeply.  Some tips to make it through the next few weeks:

1.  Cut yourself a break.  No one is happy all the time.
2.  Find some quiet time to do something for you.  For me, it’s watching a holiday movie or going on a run.  For others, it could be taking a hot bath, a long walk in the woods, or simply reading a book.
3.  Create a new holiday tradition.  Have you been meaning to go see that new light display or drive the neighborhood looking at the house lights?
4.  Do something not holiday related.  People laugh when I say a Jewish Christmas tradition is going out for Chinese food, but for many families, it’s a tradition that’s fun and not holiday related.   Do it.
5.  Do something for others less fortunate.  Give the to Salvation Army, the Rescue Mission.  Volunteer at a homeless shelter.  Really put some thought into Toys for Tots.
6.  DO NOT immerse yourself in alcohol or drugs; they just make you feel worse in the end.
7.  If you feel like you’ll never be happy again or think of self harm, please get help.  Call the suicide prevention hotline (1-800-273-8255) or your therapist, or go to the nearest emergency room.

Here in the Trenches.

The Dog and the Coyote

I came home from work early the other day and decided to take my puppy for a long walk.  As we walked around our local lake, we came across an animal ahead of us who looked like a dog.  There was no owner, and as I looked more carefully, I recognized the coyote who lives in the woods near our home.  The coyote had been coming toward us, but when he saw us, he stopped and turned the other way.  He walked about 20 yards up the path and then stopped again, turned and looked at us.  We, of course, stopped as well.  Then he turned and walked another 20 yards up the path, and repeated his behavior.  Puppy and I decided that we would be brave another day, and turned around and walked the other way.  Had we continued on our chosen path, we didn't know what the coyote would do.  He could have been sizing us up as a threat, or looking at my pup for some lunch.  We decided not to find out because we had the option to turn around and go another way and the time to  take it.  We still had a lovely walk, just not the one we thought we would have.

Many times here in the Trenches, clients walk along the path to separation or divorce and come across obstacles.  Some obstacles are easily identified as harmless or harmful.  Others are not. Often there is another path that avoids the obstacle.  The problem when you're in the Trenches is that emotions often rule.  Some people are so anxious to get out of the Trenches that they don't realize that they have time for a different path. Some people just can't see the other path because of anger, fear or anxiety.  Others don't want to take the other path because they don't want to be inconvenienced or because they are unable to see the other path is acceptable.  Some people take the other path.  Whichever path a client takes will ultimately get them to the end and out of the Trenches, but the result and the feeling about that result may be entirely different depending on the path taken.  Remember there's almost always another path; the question is whether you want to take it.  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.

Heat Adapting Your divorce

I run outside year-round.  I run in the beautiful weather of spring and fall.  I run in the heat of summer.  I run in the cold of winter. I love running in the cold or cooler weather.  When you run in the cold, the pace planned is the pace you run.  There's no humidity to stress your lungs.  Sure, it's cold, but you can warm the air you breathe.  There are no adjustments to pace.  Unfortunately, most of my races are in the Florida heat, because I run Disney. Running in the cold doesn't prepare you for running in the heat.  The humidity makes the air heavy.  It's harder to breathe.  Your legs feel heavier.  In the heat, you have adjust your pace.  You slow down.  Even your speed workouts are slower.  Otherwise, you'd probably end up with heat stroke.  Even though I would much prefer to run in the milder weather, or even the cold, I have to run in the heat in order to prepare for my races.  Otherwise, I could never finish any of my Florida races, let alone being successful in them. My coaches know this and help me heat adapt and adjust.  I couldn't do it without them.

Most people live their lives in the beautiful weather of spring and fall.  Sometimes, things get a little cold, but it always goes back to spring and fall.  Except when it doesn't.  Except when they end up in the Trenches.  Then, it's perpetual summer.  Lots of folks don't take that into account.  They certainly aren't prepared for it.  It requires a whole different set of skills.  They need to pace themselves differently.  They don't know how.  They need help.  Those of us who work in the Trenches, the lawyers, the therapists, the financial professionals, all know how to help people pace themselves while they are in the Trenches.  That's what we do.  It's how our clients successfully move successfully through their divorce and custody case and rebuild their lives in a different way.  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.

The Value of Coaching

Yesterday, I ran the Tampa Bay Whiskey Run 10k.  I really trained for this race.  I joined a coaching program and followed it religiously.  Sure, there were bumps along the way:  I had twinges in my hips here and there that caused me to take a few days off; I ran some workouts too fast or too hard and needed more recovery.  Even with the bumps, I felt really prepared for the race.  Then, the unexpected happened:  Daughter decided she shouldn’t run because of her lack of training; the weather was much warmer than planned, with no breeze.  I wanted to run the race in under one hour. That didn’t happen. I ran it in 1:00:50.  So close, yet so far.  Still, I’m really pleased.  Why?

I could have been unhappy that I didn’t meet the goal I set for myself.  I could have felt that because I  didn’t meet my goal, all that training was for nothing. Sure, I’m disappointed that I missed my goal by less than a minute.  Let’s look at the positives.  I set a new personal record for that race distance, by six minutes, which is huge.  That means I ran each mile a minute faster than I ever have.  I ran a race under less than ideal conditions, by myself, with no one to talk to and nothing to listen to, and finished strong. I look great in my post race picture (why is it I look better in my workout photos than I do in the ones for which I preen?).  I see the value of the coaching, I didn’t die doing speed and distance work, so I was fit enough to race under adverse weather conditions.  All good things.  I’ll break that one hour mark in the next race.

Here in the Trenches, it’s disappointing when a relationship doesn’t work out. Especially when children are involved, there are a lot of life adjustments that need to be made.  No one thinks it’s ideal to have their children with them less than all the time.  It’s hard to share children with someone with whom you no longer share a life and with whom your values may differ.  There are so many things outside your control, especially what happens at the other parent’s house.  It’s anxiety producing, and heaven knows no one needs more anxiety.  What are parents to do?

Take steps to reduce the anxiety, of course.  In the Trenches, like with my running coaching, that means hard work.  It means thinking about the variables in your children’s lives.  It means having discussions with the other parent.  It means working through your anger and disappointment enough to co-parent with the person with whom you share a child.  It means developing a framework and a process to do that.  Helping you find solutions, coaching you through the process, teaching you to regroup when things don’t go according to plan - that’s our job in the Trenches.

Even though we can all parent, just like we can all run, sometimes you need a professional to help you do it better and more effectively, and to handle life’s curve balls.  Professionals don’t let you take the easy way, when it is not the better way.  They hold you accountable to your higher self, because we all know there are days when we’d rather do what’s easy.  They give you the tools to keep yourself doing what you ought to do, and to be able to regroup when things don’t go as they ought.  They cheer you on when things don’t go well and when things do.  The right professionals are an investment in your children’s healthy future.  Sure, you can do it yourself - for years I ran without a coach.  It was so much better and effective with one, and didn’t cost as much as I thought.  Just a thought.  Here in the Trenches.

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 fiancé 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.

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.

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.

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.

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.

Lessons for the Trenches from Meb

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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.

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.