We had read
about it, listened to experienced practitioners rave about it, and we
had even served on panels discussing it, but until we walked hand in
hand with our divorcing clients through the collaborative law process,
we didn’t have a clue…….
Yet, we,
Paula and Karen, the “formerly-known-as-opposing–attorneys” who became
“collaborative attorneys” through the case, were stunned by the success
of the process in our case involving Ginny and Marco. The purpose of
this article is to reveal the honest transformation that lead us to the
day of the divorce hearing where Ginny gave Karen (her husband’s
collaborative attorney) a big hug – not, as we know, an everyday
occurrence!…..how did we get there? The road was bumpy and full of
learning experiences for us all. For all intents and purposes, we were
each “new” attorneys to the collaborative practice, so we had to teach
each other, and we had to learn from and teach the clients as well.
Ginny and
Marco had been married for 30 years, and had two children, an
emancipated daughter and a teenage son. Both parents had worked
throughout the marriage, although Ginny had worked part-time and
neither of the parties were high income earners. The home in which the
parties lived with their children had been purchased from Marco’s
family at less than fair market value, and Marco would eventually use
this as a basis to claim a greater percentage of the marital home
equity. Religion was an important part of their lives, and they
practiced their religion in a traditional fashion. The parties had
grown apart over the years for many reasons. In addition, Marco
perceived that Ginny had a serious alcohol problem. Ginny’s alcoholism
had possibly led to the loss of her job, and had led to the temporary
loss of her driver’s license, which impeded her ability to obtain new
employment. The family was in some financial distress as a result;
however, Ginny was in treatment and making a sincere effort to address
her alcoholism. Marco did not focus on Ginny’s alcoholism, and was glad
she was in treatment, although he was angered by the effect the problem
had on the financial condition of the family.
At the time
the parties contacted the lawyers regarding divorce, they had already
been separated for approximately two years. The separation had been
initiated by Marco, who was the one who wanted the divorce while Ginny
did not. What was remarkable, however, was that the parties had in many
ways continued to act as partners and parents despite the long
separation. Marco came to the house almost daily, he often drove their
son to and from school, the parties continued their family religious
traditions together, and the family even continued to have meals
together on a regular basis. In hindsight, it is easy to understand how
this continued connection complicated and confused each of them during
the collaborative process that was utilized to reach a separation
agreement to end their marriage. Ginny came to Paula for divorce
information and was excited about the possibility of the collaborative
divorce. Although Ginny had not wanted the divorce, she now understood
that it was inevitable, and thought that the lure of a non-adversarial
settlement was exciting. She left the first meeting with Paula bearing
literature and articles about the collaborative process; although she
was interested, she now had to get the retainer together in order to
proceed. A full nine months passed before Ginny came back to Paula and
was ready to begin. Since financial resources were not plentiful for
this family, it had taken ¾ of a year for her to accumulate a
retainer. Ginny gave Paula permission to contact Marco regarding the
possibility of collaborative resolution, and Paula wrote Marco a letter
introducing herself and the possibility of collaborative divorce.
When Marco
first came to see Karen, they explored all the options, including
litigation, collaborative law, and mediation. Marco didn’t need much
“selling” of the collaborative law process and was very interested in
collaborative law both for the promise of an amicable solution and the
possibility of lesser financial cost. Interestingly enough, and
unbeknownst to Marco and Karen, Ginny had already consulted with Paula
several months before. Karen knew Paula from the Massachusetts
Collaborative Law Council but had never worked with Paula. When Marco
then received the letter Paula sent out to him regarding her
representation of Ginny and the possibility of proceeding with the case
using the collaborative law process, he retained Karen, and Karen
called Paula to discuss doing the case collaboratively. Both parties
were apparently ready to commit to the collaborative law process. The
first meeting was held in Paula’s office. A written agenda, which
included, among other items, the review and signing of the
collaborative law process agreement, had been exchanged in advance. The
issues that had been identified as needing urgent attention were the
co-parenting schedule and Ginny and Marco’s treatment of each other.
The parties also needed to discuss financial issues in light of Ginny’s
recent unemployment. Perhaps the suggested agenda was overly ambitious,
given that the parties and counsel were so new to this process.
The first
meeting was awkward. Although Karen and Paula had agreed they would
start by going over and signing the collaborative law participation
agreement, neither Marco nor Karen knew that Paula was going to review
the agreement paragraph by paragraph. The parties had seen the
agreement in advance; although both Karen and Marco felt it important
to go over the agreement and execute it together, they did not
anticipate that the ritual would be done in such detail and that it
would take so much time. Although the first four-way meeting did result
in a temporary parenting plan, there was little time to discuss other
issues. Following the meeting, Marco already felt frustrated and did
not like Paula’s style. He was concerned Ginny was going to “drag her
feet” throughout the process.
It was
clear after the first four-way meeting that the parties’ styles were
very different. Marco tended to be result-oriented and Ginny was more
process-driven. Marco approached things in a very “cut and dry” manner
and Ginny preferred to have lengthy discussions before reaching
resolution. The parties’ differing styles, and their lack of a real
emotional separation during their two year physical separation, became
a stumbling block in the process. In addition, neither party could
understand each other’s emotional level or appreciate it.
We held a total of five 4-way meetings in this case. Many of them were
contentious, especially because of the nature of the clients. They
continued to have a hard time separating from each other, and Marco
would, in spite of warnings from Karen, show up uninvited at the
marital home where the wife and children were living. They often got
into shouting matches with each other, and the attorneys received calls
from their respective and furious clients on a quite regular basis. The
wife was feeling very put upon during the process, especially because
she didn’t see the husband providing her with any relief from the
children-related demands. The husband would complain that the wife,
while wanting her privacy and wanting him to remain away from the home
unless invited, would then invite him in to do repairs in the home but
be angry if she perceived he stayed too long.
Thus, even
though we were starting to work out the parenting plan and financial
details of the divorce, the personal situation between Ginny and Marco
just wasn’t getting better. The attorneys talked about the situation on
a fairly regular basis, and one of the big issues for Paula was that
she perceived the husband to be a difficult (and, often, even
impossible) person. Karen and Paula realized that the collaborative law
process demands new lawyering skills that call upon each of us
individually to treat the “opposing” client with as much respect as we
would treat our “own” client; the spouse who normally can seek refuge
behind his adversarial attorney sits around the 4 way table in the
collaborative process, thereby placing himself and his issues squarely
in the face of all involved. Paula felt she had to face her own
humanity and decide to either “get over” her personal feelings or mask
them well; either choice presented her with a challenge. For Karen,
keeping Marco in the collaborative law process was the challenge, as he
repeatedly expressed his feeling that it was not going fast enough and
that Ginny and Paula were not working hard enough toward resolution. He
would point to the fact that Ginny would bring up the parenting plan at
every meeting; she was frustrated at his inability to abide by their
previous decisions, and he just wanted to move on to other issues. This
meant Karen had to frequently remind Marco about the collaborative law
process and its goals, and that although both parties were moving at
different speeds, we would continue to work toward a rapid resolution.
Karen also had to recognize that Ginny needed affirmation from Marco
that she was a good parent, and to try to get Marco to understand
Ginny’s need for his support.
Between meetings, there were periods of what seemed to be chaos. Even
though the lawyers would summarize each meeting in writing and send out
a summary letter after each meeting, Ginny frequently misinterpreted
the parties’ agreements even when they were spelled out in the summary
letter. Marco would often ignore or not follow through with agreements
he made in the four-way meetings. Paula and Karen were at times puzzled
by the parties’ action or inaction between meetings. However, certain
issues began to emerge that Karen and Paula recognized needed to be
addressed. Paula and Karen began to recognize that the parties needed
to separate both emotionally and physically, that we had to deal with
Marco’s belief that he was entitled to a greater percentage of the
marital home, that we had to find a way for the parties to find
financial stability even if it meant the sale of the marital home, and
that Ginny needed assurances that Marco valued her as a parent and that
he would adhere to the parenting plan they devised (since he made clear
he did not intend to implement the permanent parenting plan until the
divorce was final – in effect, he was holding the parenting plan
“hostage” till everything else had been decided).
The parties
ultimately did retain a financial planner to assist them in resolving
the financial issues. Despite their low incomes and limited assets,
involving the financial planner allowed the parties to maximize their
income and use all available financial tools to enable them to maintain
the marital home until their son graduated high school. In addition,
Ginny’s new job helped somewhat with the cash flow issues.
However, it
was not until the last meeting that a “breakthrough” occurred. The
stumbling blocks to final resolution turned out to be the division of
the marital home equity, and, correspondingly, Ginny’s need for Marco
to be clear about committing to the parenting plan they had devised.
When the house was sold in the future, Marco wanted the value of his
family’s “gift” to him off the top, thus giving Ginny very little
equity, in spite of the fact that this had been a long term marriage to
which she had contributed both financially and as a homemaker. Ginny
and Paula were open to Marco and Karen’s view on a conceptual basis,
but asked that Marco and Karen understand and incorporate fairness. The
discussion got heated, and the parenting plan was brought up by Ginny
again. The parties and counsel decided to take a break.
Something
miraculous happened during the break, and when everyone met together,
the parties were ready for resolution. The focus became trust and
fairness, and the parties and counsel were able to use transparency to
get to the parties’ real issues. Ginny needed to have faith Marco would
implement the parenting plan, and that he did value her as a person and
a mother. She was able to express her feeling that she was hurt by
Marco’s lack of affirmation of her as contributory parent/partner.
Marco needed to recognize Ginny’s contribution to the marriage and have
a sense of fairness with respect to the division of the house equity,
which he was ultimately able to do. Marco was also able to express to
Ginny for the very first time that he was embarrassed about his
apartment and that, therefore, he had not invited the children to visit
him there; he was afraid they would think less of him as a father if
they saw his surroundings. He had made efforts to improve his home
environment for the children and felt that once the divorce was final
and the financial issues were resolved he would be able to provide a
decent home for them. The parties openly talked about needing to take
that “leap of faith” in reestablishing trust between them as divorced
people.
A safe
environment had been created for the parties’ to express their
emotions. There was a moment of release by the parties and both
attorneys felt honored to be allowed to witness it. Neither attorney
was able to define how that safe place had been created, so they talked
later to try to understand the“breakthrough”. Analyzing the process and
what they had done during the process was important to Paula and Karen
in trying to understand what skills they had used or should have used
at various times during the collaborative law process.
Yet,
despite the “breakthrough”, the case wasn’t over yet. These people had
worked hard. They had discussed and compromised and disagreed and
agreed. We were all happy that the process had been successful. Now we
only had to sign the agreement. Karen drew up the agreement, and Paula
and Ginny were surprised and even offended by some of the language in
the agreement. Karen could not understand their reaction. Karen and
Paula had to have a number of conversations which involved her
explaining and interpreting what turned out to be language that,
ultimately, worked very well. This is merely another example of how
important communication between the collaborative attorneys is; if
Karen and Paula had discussed the “offending” provision in advance, its
harmlessness would have been apparent. Finally, however, we were able
to line ourselves up again and get the clients ready to sign. Now,
inexplicably, Ginny postponed the execution for what seemed like an
interminable amount of time; perhaps her ambivalence about the divorce
played a role. Finally, after much prodding (and after daily calls to
Karen from her client), Ginny signed the Agreement. We all realized
that, even though these folks had had many 4 way meetings, one more
would have worked wonders in order to explain and execute the
Agreement. Even though the husband was very clear in his desire to have
no more meetings, this last meeting would, in the long run, have saved
both clients time and trouble and energy and money, since the Agreement
would have been executed immediately. This practice point – be sure to
have a final 4 way meeting regarding the Agreement – is an important
one.
The case
had some twists and turns at the end. At Court, Paula’s client gave
Karen that big hug, and Marco, who had appeared less emotional than
Ginny during the process, cried after the hearing. Also, some time
after the hearing, Marco informed Ginny he was getting remarried
immediately, which was a surprise to us all……this perhaps explains his
impatience during the process.
Karen and
Paula, (and the clients), learned a lot from this fascinating case……
- 1st 4 way – Going over the Agreement is vital,
although some clients
may see it as a “waste of time”. Be prepared, and make sure both
attorneys discuss exactly how they are going to go over the agreement.
- Establish protocols regarding how the parties and
counsel will conduct
themselves during the meetings.
- Articulate, with the clients, their goals – perhaps
one of Marco’s
goals would have been speed, and we could have discovered the reasons
for his need.
- Take breaks as needed. Check in with your own client.
- Debrief after each meeting, both with the client and
the other attorney.
- Summarize each meeting in writing, and make sure
everyone understands
and agrees that the summary is correct.
- Treat each person as a complicated whole. Attorneys –
be prepared to
view the other spouse and their counsel as people rather than as the
opposition.
- Acknowledge the break-through moments.
- Meet to explain the divorce agreement and to execute
it.
- Pay attention to the process itself and continue to
reaffirm your own
commitment to the process and reemphasize the process with your
clients.
- Give clients realistic assessments of the time the
process may take
from beginning to end. When they ask about the price of the process, be
honest in your assessment, and do not “sell’ the process merely as a
cheaper alternative; cost is always a function of the bumpiness of the
journey ahead, and the client must be so informed.
Collaborative
law is a new journey for clients and for lawyers, even experienced ones
(since they often have to “un”learn or “re”learn their traditional
strategies); the possibilities are limitless, so be sure to keep watch
during the journey!!!
