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.