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.