How to Prepare for a Collaborative Law Case

I recently read a post on a business news blog that discussed how to deal with the distractions presented by the Internet. The article described the common problem of starting out researching one topic and then drifting from topic to topic, but I digress. The writer had some interesting suggestions on how to stay focused on what you are looking for, and I thought the ideas, simple as they are, were equally applicable to Collaborative Law cases. So, with a nod to the Harvard Business Blog, here are some common sense things anyone and everyone should do to prepare for, and work through, the Collaborative process.

1. Sleep well: We all know that we operate better physically and emotionally when we are well rested. If you are having trouble sleeping, get some help so you can be alert when you need to be.

2. Eat well: A lot of people lose weight going through a divorce, but they often do it by not eating because they have lost their appetite. While that is often normal, you know that you cannot operate at top efficiency if you are hungry or if you are not eating properly.

3. Minimize stress and anger: One reason we bring in a neutral mental health professional is to help both parties deal with the stress and the variety of emotions they experience. We recognize that Collaborative Law is a difficult process and you should keep in mind that it usually doesn't always go smoothly or easily. Everyone starts out wanting to be nice, but people can get tired and frustrated as we go through the process.

4. Watch out for time wasters: We try to have an agenda for each joint meeting and we try to stick to it. Some of the worst problems that arise in Collaborative cases occur when the participants get off the agenda and start on topics that were not planned for in advance. Staying on the agenda means that everyone can be prepared for the discussions and actions that need to take place. It also means that the meetings can end on time.

5. Work smarter, not longer: There are good reasons why we normally schedule meetings to be 1.5 to 2 hours long. The parties sometimes ask to extend meetings so we can finish up the process sooner. We have occasionally worked longer than 2 hours in a session and my experience is that those meetings often become counterproductive because everyone becomes tired. Once people start to get tired, they either shut down or (more often) become argumentative and angry. We not only lose momentum, but we sometimes lose the progress we had been making. We are better off coming to meetings with an organized agenda that we are all prepared for.

We have to keep in mind that Collaborative Law is not a one-meeting, quick process. There will be a series of meetings and everyone will get tired during the process. The more prepared and relaxed we are going into the process, the easier the process should be for us. As you can see, there's no magic here, but you will benefit by trying these easy steps.

Stop Re-living Someone Else's Past!

Tracy Stewart is a CPA in College Station and a very active neutral financial expert in Collaborative cases. She is also a very good writer and produces an excellent blog, the Texas Divorce Finance Blog. She mixes common sense, good financial advice and very appropriate suggestions for Collaborative cases. She recently posted about a common problem that many people face. No matter how many times attorneys and other professionals tell clients not to listen to what their well-meaning family, friends and even strangers want to tell them about how to act in a divorce, the easiest course of action usually seems to be to ignore the professionals' advice and do what the amateurs suggested.

I do my best to make it clear that such a course of action is almost always a bad decision, but Tracy really makes the case in a way that can't be misunderstood. Here's her excellent post:

"Not infrequently, I hear people tell me about the divorce advice they are absorbing. This advice comes from people they trust and believe.

"My friend, who’s been through a divorce, told me I need to hire the meanest attorney I can find so I can crush my nasty husband/wife.

"My friend, who’s been through a divorce, told me to withdraw all the money from our savings account before my wife/husband does it first.

"Do not allow these people relive their divorces through your life and at your emotional and financial expense. If you must engage in such conversations with them, keep it restrained to a pat on the head/hand/shoulder and murmur, 'There, there. It must have been an awful ordeal for you'. But do not get take their advice. Their divorce is not your divorce and vice versa.

"Normally, they are not divorce professionals. (Even if they are, they are not objective.) They don’t have a thorough understanding of marital dissolution law, divorce finances and the relationship nuances of your crumbling relationship.

"Not infrequently, I see people go through senseless emotional turmoil, wasted time and ill spent money in their efforts to follow their friend’s sage advice. Of course, you can have girlfriends or buddies with whom to drown your sorrows or cry over coffee. But do not take their advice. Seek professional advice.

"Remember: You are not divorcing your friend’s ex-spouse."

Advice from friends and family is an abundant commodity during a divorce. Sometimes it's good, and it's given with the intention of helping you, but following the advice can conflict with the strategies that your professionals are using for your case. You should keep in mind that your shadow advisers are not in charge of the case, they don't have the legal or technical knowledge that your professionals have and they don't know how their suggestions fit in, or conflict with, your overall case strategy. It's fine to pass along to your attorney or other professional the golden nuggets of information you hear, but let the professional decide whether to implement the suggestions. Your focus must be on taking care of your case rather than validating someone else's leftover strategies from their divorce.

The Uniform Collaborative Law Act

As the Family Law Prof Blog recently pointed out, one more major step has been taken to anchor Collaborative Law into our legal system. The Uniform Law Commission voted on July 15, 2009 to adopt the Uniform Collaborative Law Act. The U.L.C. is a national organization that studies selected legal issues, drafts proposed statutes, debates the proposals and then adopts or turns down the proposed acts. After a little fine tuning, the adopted act is sent to the American Bar Association which is asked to endorse it. If that happens, the act is latter submitted to the state legislatures for them to consider adopting it in each state.

In Texas, the proposed new uniform law will make very little difference. We were the first state to pass a statute that defined Collaborative Law and explained how it would work. A few other states have passed similar statutes. Coincidentally, Harry Tindall of Houston was one of the leaders in getting the Uniform Law Commission to approve the new act, just as he was the leader of the effort to get the original Texas statute passed by the legislature. We all owe a lot to Harry for his leadership and hard work.

The real importance of the the new uniform act is that there is now a common approach to the process which should be presented to all the states that don't yet have a Collaborative Law statute. This adds a little more legitimacy for the process and boosts the chances of other states formally acknowledging the process. Hopefully, another result will be more public awareness and more people taking advantage of the opportunity to take a more civilized and effective approach to settling disputes.

Updating the Three R's

I have just run across a very interesting and thought-provoking blog called the JustDivorceBlog, which is written by Marie Fahnert of Chicago. I highly recommend that you spend some time reading her posts. You will come away with a fresh perspective and some new ideas about life, which is actually very helpful for someone involved in a divorce. I actually think the blog would be interesting reading for anyone, so give it a chance. Anyway, here's a post she had recently that I really liked. It can provide great guidance for anyone in a stressful situation.

"Dalai Lama's (divorce) lesson:

"Take into account that great love and great achievements involve great risk.
When you lose, don’t lose the lesson.
Follow the three R’s:
- Respect for self.
- Respect for others.
- Responsibility for all your actions.

—14th Dalai Lama of Tibet
via On Her Way...........................................

"My Note: I can't stress enough how important the 'three R's' are reaching a successful outcome in your divorce. However, it is sometimes difficult to follow the rules during times of stress. When you find it difficult to follow the 'three R's' you might consider yoga, meditation or, if need be, a counselor. The rewards of following these rules will certainly be worth the effort. "

Although we often think that Collaborative divorce is nicer and more civilized, it is still very easy to fall back into old habits of blaming or attacking your spouse. Your feelings can get just as hurt in a Collaborative case as in a litigated divorce, if you let them. You do have the power to choose your response to aggravations and difficult times, but few people have the presence to stop themselves from engaging in an automatic reaction to a situation.

If you keep in mind what the Dalai Lama said, and show respect for yourself and for others, and take responsibility for your actions (don't blame others or circumstances), you will have a much easier time in your divorce. That will be appreciated even in a Collaborative divorce. And you will probably get a better result.

Have a Happy Father's Day!

One interesting aspect of the blogosphere is the opportunity to read about different laws in different states. A consistently well-written blog is the Ohio Family Law Blog written by Robert L. Mues. He has a timely post about the history of Father's Day and then describes how different counties in Ohio have different rules for fathers having possession of their children on Father's Day. I'm always interested in history, so here's what he wrote about the history of Father's Day:

"The third Sunday of June has become known as Father’s Day just as the second Sunday of May has become known as Mother’s Day. On that 'special' day in June, Fathers in the United States are feted with cards, gifts (often ties and wallets), meals especially prepared for them or 'dinner out' at their favorite restaurants, as well other special treats such as the preparation of a favorite dish or dessert prepared at home.

"From my readings at various websites, the origin of Father’s Day is not entirely clear. Some say it began with a church service to honor Fathers in Fairmont, West Virginia, on July 5, 1908. Others believe that Ms. Sonora Smart Dodd of Spokane, Washington, came up with the idea or plan to honor Fathers in 1909 while she listened to an earlier church service wherein Mothers were honored and praised. Ms. Dodd’s Father, a veteran of the Civil War and a 'single parent', had successfully raised six (6) children following the premature death of his Wife.

"Although the movement to honor Fathers began over one hundred (100) years ago, it took many years for this country to make this occasion an official holiday. While citizens supported the concept of Mother’s Day with pride and enthusiasm, the idea of Father’s Day was at first met with laughter and satire. While President Woodrow Wilson 'approved' the concept of an annual Father’s Day in 1916, it was not until 1924 when President Calvin Coolidge declared the day to be a national event. Thereafter, Father’s Day was celebrated but was not made a federal holiday until 1966 when President Lyndon B. Johnson issued a proclamation declaring it to be so. Later, in 1972, President Richard Nixon established Father’s Day as a permanent holiday to be celebrated on the third Sunday of June of each year."

Some readers may be a little familiar with that history, but it's not widely known. From a Collaborative Law perspective, what is really useful from the post is the description of the variations in how Father's Day is handled in different counties. Texas has a uniform state standard possession schedule which covers Father's Day, Mother's Day and most other major holidays. While the Texas standard possession schedule often works out well for both parties, it should be noted that our schedule is not followed by other states and doesn't have to be followed in Collaborative Law cases in Texas.

What Texas and other states do in possession orders, child support and even property division can be considered by the parties in a Collaborative case, but the Texas parties should always remember that Collaborative Law gives them the freedom to make their own rules to meet their own needs and circumstances. Be informed and be creative!

Preconditions to Using Collaborative Law

Let me be clear that I have a bias favoring the use of Collaborative Law in settling family law disputes. When there is a hesitation by the other side in a case, I get concerned.

On occasion, as I have talked with Collaborative lawyers about starting a new case as a Collaborative divorce, the other attorney has suggested that s/he wasn't sure the case would be a good one for Collaborative Law, but we could try it if my client would first: give up custody of the kids, move out of the house or give the spouse a sum of money. Since each of those was the biggest issue in each respective case, my clients didn't see the value in conceding that issue and then using Collaborative for whatever was left. In those cases, I couldn't talk the other attorney into dropping the precondition and the other attorney didn't seem to see anything wrong with that approach.

Custody, use of the house and getting access to money are common issues that are dealt with over and over in Collaborative Law. They can be tough issues in any kind of approach. Judges and juries often have trouble making decisions on those topics and they can be tough issues even in the Collaborative Law approach. Nevertheless, I wouldn't hesitate to use Collaborative to work out agreements on those issues. For all the reasons why we are committed to Collaborative, it is usually a superior way to resolve these legal issues.

From my perspective, the real reason why some attorneys insist on preconditions to using Collaborative Law is that they just aren't fully comfortable with the process and aren't convinced it can work with difficult issues. In other words, it's a lack of commitment to the process. Sometimes, attorneys are so integrated into positional bargaining that they can't let go of the security of grabbing a position and holding on. When we are "brought up" doing positional negotiating, interest-based negotiations may seem a little scary. Attorneys may feel out of control when they don't have clear cut positions they can claim and hold in negotiations.

So, what's a person to do?

If you go to see a Collaborative lawyer and that lawyer starts telling you that the case really isn't appropriate for Collaborative Law, I suggest that you challenge the attorney to explain why. And I suggest that you get another opinion from another Collaborative lawyer.

Unfortunately, some attorneys claim to be a trained Collaborative lawyer when they really aren't or when they don't really practice Collaborative Law, and those attorneys use the ads or web site sections to bring in potential clients whom they then tell that Collaborative Law is not appropriate for their case. Any time you are told that Collaborative Law won't work in your case, you should get a second opinion from another Collaborative lawyer.

Sometimes, after discussing the proposal to use Collaborative Law with the attorney, it's the client who wants to impose a precondition before agreeing to use Collaborative Law. In that instance, it's clear that the attorney just hasn't explained the process very well or the client perceives that the attorney isn't real comfortable with the process. If the attorney isn't sold on Collaborative Law, the client probably won't be either. Again, a second opinion would be advisable.

The bottom line is that agreeing to use Collaborative Law only if a precondition is met is unacceptable. If you want to use the process, keep searching until you find a truly committed and experienced Collaborative lawyer who will help you.

Negotiating Effectively: Why You Shouldn't Hurry

One of the most common reasons some people sign up for a Collaborative divorce (or other family law matter), is that they expect it to be a fast process. Relatively speaking, that's an accurate expectation. Compared to how long a traditional divorce takes, a Collaborative divorce is normally much faster, although it isn't always. Most can be finished in three to four months, some sooner and some later. In contrast, a litigated divorce in Tarrant County which is resolved at trial or shortly before trial (when mediation often occurs) will usually take at least a year to finish, and it's not unusual for a divorce to take longer.

Unfortunately, many people going through a Collaborative divorce start feeling the process is slow and bogged down if it doesn't settle in two to three months or if it just requires several meetings. As a result, they start looking for shortcuts and ways to move the process along faster. When one side gets very anxious to settle the case and get it over with, they will usually experience one or more of the following problems:

1. The anxious party tends to give away too much. It is quite easy for the party who isn't ready to divorce, or who just isn't in a hurry, to start to drag their feet and slow down the process. That increases the anxiety level of the spouse in a hurry, which normally leads the hurried spouse to sweeten the pot and offer a better settlement to the other spouse. Over and over, I have seen one spouse maintain a position on settlement terms and refuse to budge, leading to the other spouse moving closer and closer to what the first spouse demanded. Sometimes, the anxiety is self-imposed and sometimes it comes from an exterior source. Whatever the reason, the person making the concessions is often making a mistake and offering more than would be necessary without the anxiety.

2. Hurrying reduces the amount of time to conduct due diligence. When on or both of the parties want to move quickly through the process, the attorneys and other professionals may not have the time to fully explore the facts of the case. Even when the parties both think they know all the issues and both think they understand the information relating to the issues, they may be wrong. It is very common for the parties to not understand various technical issues about assets and debts. For example, they often have mistaken ideas about what to do with retirement funds. The attorneys and the financial neutral need time to gather records and analyze them. Similarly, a child specialist may need some time to explore the issues about sharing time with the children. A superficial review of either property or kid issues can lead to serious problems later on.

3. Another problem is that the parties tend to lose sight of their interests and focus on positions. Often, when the parties get in a hurry, they become very willing to skip over setting and explaining their goals. Even when they have identified their goals, needs and interests, they sometimes stop thinking and talking about them when there is pressure to move quickly through the process. When that happens, they inevitably fall back into positional bargaining, relying on traditional, arbitrary guidelines or percentages, instead of analyzing how to best meet each other's needs.

4. Hurrying usually is associated with reduced listening to the other side. Listening to each other is one of the key values of Collaborative Law. Sometimes just seeing improved communication skills provides a great deal of satisfaction. When a party, who has not been listened to during a marriage, experiences discussions where the spouse begins to listen and speak more respectfully during the Collaborative Process, that party will feel much better about any agreement and it will be easier to reach an agreement. Hurrying devalues listening. The objective becomes primarily to reach an agreement, and true listening bogs down the process. The result is that the parties fall back into old communication patterns, and that usually doesn't emphasize good listening. In other words, the parties stop listening to each other and just try to negotiate the same ways they used to argue. That leads to skipping steps in the Collaborative process and sometimes overlooking options, idea and analysis of facts.

5. The other side may get upset by feeling pressure to finish early, making agreement less likely. Many people, when negotiating, will become very resistant if they feel like they are being pressured into something they don't fully understand or which they may not fully agree with. Some people just automatically start opposing something when they feel a lot of pressure to decide quickly, especially if they are a little uncomfortable or if they don't trust the other party.

As frustrating as it may be for someone going through a divorce, it is usually necessary for one party or the other to slow down some during the process so they can advance at the same pace as their spouse (or the other party). Trying to rush the other party can cause delays or failure to reach an agreement.

And by the way, in a traditional litigated divorce, if one party wants to slow down the process and drag it out for any reason that's easy to do. Collaborative Law is not worse than litigation, in terms of speed. In reality, Collaborative Law generally is a faster means to reaching an agreement than is litigation.