Collaborative Lawyers - Don't Half-Ass It

I had a very interesting experience yesterday.

I had a new client come see me, and as I explained his process options, starting with mediation and then moving on to tell him about "Collaborative" Divorce..  and he immediately shook his head and said, "I want no part of that.. that's not for me."

Now.

Think about that for just a second.

Here is a guy who is going through divorce, who has never been divorced before, and right out of the gate, his take on Collaborative Divorce is that it's not for him.  And he is adamant.

So.

Being a curious sort, and having learned that lawyers often assist their clients more by listening than talking, I asked him to tell me about his feelings about Collaborative Divorce.

And so, he goes on to explain to me that he has a friend who recently tried Collaborative Divorce, and who spent a lot of money and ended up having to hire a new lawyer and start over again.

And here's the interesting part.

I'm acting for his friend.

I'm the "second choice" lawyer after a failed Collaborative effort.

And as such, I have some insight into:

a) Why Client 1 was unhappy with the Collaborative process; and 

b)  How that impacted Client 2 to seek to avoid Collaborative divorce at all costs.

The bottom line is that, with all respect, the two previous Collaborative lawyers failed to understand and appreciate the need to shift from a litigation paradigm to a collaborative paradigm.

The lawyer for my client made the error of packaging up a "birthday present offer" - you know, more than the wife would ever get at trial, all wrapped up in a nice little bow.  And, of course, the Wife assumed the Husband was trying to take advantage and immediately demanded more.  Which then upset the Husband, as you might expect - and then the process basically fell apart, without any real effort to walk the parties through the factual issues to create a foundation for discussion.

And so, not only do the clients end up starting over to a great extent, but, clearly, their impressions of the Collaborative process are very negative, and, as demonstrated, at least one person they have communicated their disappointment with has formed a very negative opinion - and if we think he is the only one they have "infected", we are dreaming.

So.

Think about that, fellow Collaborative lawyers.

The job you do not only impacts on your client, but it impacts on your reputation, and the reputation of the Collaborative process as a whole.

Don't half-ass it.

Don't let your client's push you to positional bargaining positions, and if the other client does that - hold the reigns on your own client and go back to the start.  Build a factual foundation that allows you to enter into reasonable discussion about resolution alternatives...  and maybe, during a post-meeting debriefing session, discuss the problem with your fellow lawyer.

Walk the walk.

Protect the "Collaborative" brand.

It's worth it.

Divorce: A Problem to Be Solved.. Not a War to Be Won

An excellent article in the New Hampshire Bar Association web site this month on Collaborative Divorce extolling the benefits of Collaborative law to lawyers practicing outside of divorce practice.

Corporate and Commercial lawyers are suggested to perhaps benefit from reducing strain on corporate operations and corporate transactions which often accompany divorce of key employees and officers.

Wills and Estate practitioners are suggested to perhaps benefit from a process which allows their clients greater flexibility and cooperation in planning for devolution of their estates - often with the assistance of the same neutral financial professionals who facilitated a collaborative settlement.

The article, written by Collaborative lawyers, Lisa B. Forberg and Bruce L. Dorner, provides some excellent thoughts on how non-divorce lawyers may wish to consider the benefits of referring their clients to Collaborative lawyers when needed - and for those of us practicing Collaborative Divorce - you may wish to consider sending a copy of this article to fellow corporate, commercial and estate counsel.

Particularly poignant, I felt, was the comment that a divorce might better be considered a "problem to be solved, rather than a war to be won."

Indeed.

Are You "Linked In" With Canadian Collaborative Professionals?

LinkedIn - Reaching Out to Your Peers

This blog has sort of evolved over a short period of time, in my mind, to a blog for the public, providing some thoughts on divorce and family law and how Collaborative Law or Collaborative Process may help those in the midst of dealing with those issues.

At the same time, it also speaks to the professionals involved in the process, including lawyers, financial professionals, and mental health professionals who gather together in collaborative "teams" to find solutions for their clients.

And the work of a collaborative professional is not easy.

It requires dedication and effort to work to find solutions - as opposed to the focused effort of a litigation lawyer - which, in my experience, is actually easier.

So.

To further help Collaborative Professionals in Canada, I have created a "LinkedIn" profile to allow for Canadian collaborative professionals to connect with each other and to "share the load" perhaps, providing a handy tool to reach out to connect to other professionals across this country - and, perhaps, to take advantage of their collective wisdoms to seek out advice when your collaborative file is perhaps in need of a second, or third, or fourth opinion.

So - if you are interested, feel free to join the LinkedIn Group:

Collaborative Professionals Canada

Stop by.

Say hello.

Post a question or comment for discussion, or contribute your wisdoms to existing discussions.

After all, it's about "Collaborating".

The Family Law "Market Value" Approach to Resolution

"So, you say you would like dinner with your daughter this week.. "

Well.

Two weeks ago I was in San Francisco, attending the annual IACP forum on Collaborative Practice.

And, my general response to the forum is that if I can learn one new thing that I carry with me back home, it was a worthwhile trip.

And, true to form, I picked up a few things - most notably, an excellent lunch time talk by author and University professor Dan Ariely on the predictability of irrational behavior.

Very interesting stuff..  particularly from the point of view of the marketing of ideas - what Ariely refers to as "behavioral economics".

Noting that general economic theory is premised on the idea that people will always make the most rational decision when faced with two choices - Arielly shows, clearly, that people will often make irrational decisions in a predictable fashion, throwing some economic theory into chaos.

What does this have to do with Family Law and the Collaborative Process?

Good question.

Well, his speech was interesting enough that I bought his book, "Predictably Irrational", and a very interesting portion of the book talks about the competing influence of social values and market values.

In studies, Ariely has found that given a specified task, predictably, people will work much harder when paid fair value for their effort than they will when they are underpaid for their effort.

The surprising part of the study, however, is that it was found that people will work just as hard and perhaps harder for free, when the basis of the request is a "favor" or a request for assistance based upon what Arielly refers to as "social norms" as opposed to "market norms".

So then.

How does this impact on divorce in Lethbridge, Alberta?  Or Calgary or Medicine Hat, or anywhere for that matter?

Well, consider that in an effort to make the results of divorce more fair and predictable, we have began to legislatively quantify our obligations to assist our spouse and our children.  Child Support Guidelines, Spousal Support Guidelines - and even beyond legislative guidelines, when we take our disputes to Court, we take what was formally a social and emotional commitment to assist our families, and turn them into court directed commitments.

Ariely might refer to this as bringing "market value" to divorce.

And, as Arielly has shown us, our willingness to "go that extra mile", to modify our own interests in favor of another based upon our social norms, can in fact be damaged when we change what was a social norm to a "market value" norm.  To a norm based upon money.  Cash.

So then - consider the difference in the degree of cooperation and assistance between former spouses with children where their respective obligations towards each other have been reduced to court imposed monetary obligations.

According to Ariely, we might reasonably expect that there will be much less willingness to do anything beyond the "market value" established for the respective obligations between the spouses.

And how many of us have seen that, every day, in our practice.

Parents discovering that the nice order for child support becomes the maximum that the other parent is willing to do for their children.  Forget about helping drive the children to their events - "I pay you for that".

Parents discovering that the time they have with their children, when prescribed by agreement, becomes the be-all and end-all.  "Your family reunion?  Sorry, it's MY weekend."

Collaborative Process offers the best opportunity to maintain a social norm between separating spouses.

Where they discuss how they are going to arrange their finances, and yes, come to agreements, but come to agreements that are not prescribed by some arbitrary third party, either the legislature or the Courts.

Think about how YOU would feel, in your marriage, if the obligations between you and your partner were established by Court Order - and how that might impact your willingness to do MORE than Ordered.

Arielly suggests that in society as a whole, we have perhaps moved too far to establish relationships between citizens based upon "market norms".

One might suggest the last place that "market norms" will be appropriate is in the family.

Collaborative Process offers an option to maintain higher value on "social norms" - the sort of obligations between spouses that don't exist when you are together - and can, to a great degree, be maintained after you part.

Collaborative Law - It's About Fear Reduction

Fear.

It brings out the worst in human beings.

Because it literally makes us less rational.  Neuroscientists, studying brain function, have shown that when we are in situations of fear, what is called our "reptilian brain", or our lymbic and primitive subcortical structures become more dominant in controlling our decision making processes.

This part of our brain is often referred to as our "fight or flight" centre - and results in more instinctual and less rational considered conduct during times of great stress - fear or anger.

Our deepest, most considered thinking, comes from our prefrontal cortex - our "rational brain" if you will, and as fear increases, the operation of this "rational brain" diminishes.

So then.

Consider our emotions during a marriage or relationship breakdown.

Heightened fear and anger.

We worry about our worth as human beings, after being disappointed by someone who we placed our trust in for life.

We are fearful over our ability to maintain our relationship with our children.

We are angry over the loss of economic stability inherent in the coming distribution of assets and resources.

Take all of this into account, and if you are not careful, you are building a perfect storm of fear and anger that will often take us to places where calm rational thought is all but impossible..  and we ready ourselves to either take flight or to fight.

Now.

Add to that mix the "adversarial system of justice".

By definition, it is premised on the need for battle - albeit a non-violent battle within a system of decorum and rules.

This is hardly a process designed to maximize the ability of the parties in that dispute to calm down their "primitive subcortical structures", and to engage their higher brain to make the best possible decisions for themselves and, most importantly, their children.

It is a process which, in fact, heightens our fear and our anxiety - because takes control away from the parties themselves, and puts it in the hands of a person who doesn't know them and who they don't know - and provides results which can and do vary wildly between parties of similar circumstances - often to devastating results for one or both parties. 

In light of this reality - it is almost expected that we see stories in our news, such as the following:

"Westchester Man Killed His Wife and Children Before Shooting Himself, Police Say"
October 19, 2011 CROSS RIVER, N.Y. — Late in the spring, Samuel Friedlander, by appearances a successful lawyer, seemed distraught to Kenneth Novenstern, who was representing Mr. Friedlander in his divorce from his wife, Amy...

 "Tensions, divorce talk led to NH murder-suicide"

Associated Press / October 13, 2011 CONCORD, N.H.—The man who shot his wife to death in front of her two young daughters over the summer and then turned the gun on himself was reeling from her decision to divorce him, according to a New Hampshire Attorney General's office report released Thursday.

Twenty-two-year-old Matthew Balch shot his 25-year-old wife, Sarah, in the driveway of their home June 14 and then killed himself.

"Father went on California gun massacre 'over custody of son' "
October 13, 2011 LOS ANGELES, CA - Scott Dekraai, 42, walked into the parlour where his former wife Michelle worked as a stylist, and opened fire.

They had been locked in a bitter battle over their seven-year-old son since divorcing in 2007.

Witnesses described how the upmarket Salon Meritage in Orange County became a scene of carnage.  It was full when a gunman burst through the door and began shooting, sending terrified customers and hairdressers diving for cover.

Six women and two men died, and a ninth victim was in a critical condition in hospital.

To be sure, thankfully, these incidents are not the "norm" - but they occur often enough that it should cause us pause to perhaps re-evaluate just how we facilitate couples finding their way out of a broken relationship.

And even though we may not be in fear that our spouse is about to cause us harm, reality is that the fear and anger often inherent in divorce will, if we are not careful, lead us to make decisions which are hardly premised on a calm and rational examination of what is in our own best interests and the best interests of our children.

This is where Collaborative Law can make a difference.

By it's very nature, it is premised upon requiring couples to take time to examine what their interests are, and to construct a resolution which most closely aligns with the realization of those interests.

More importantly, it puts control back in the hands of the people whose lives are being impacted - and takes it away from distant and unpredictable judicial proceedings.

Does it make divorce easy?

No.

Does it make divorce painless?

No.

What it does, however, is allow parties to find their way through a divorce in a manner which is more respectful and rational, and which allows for a result which is in the sole control of the two people who matter. 

Think about it.

And if you, or someone you know, is in the midst of a divorce or a family breakdown - by all means consider Collaborative Divorce as an option which just might help.