Collaborative Divorce and Family Law Blog, Seattle

Negotiating from a "Position of Strength"

2011-08-06T13:24:00.000-07:00

I recently consulted in a divorce negotiation. While professing to be seeking an agreement, the lawyer for the wife believed it important to negotiate "from a position of strength." To him, it appeared that meant two things:

1. Staking out a position at the outset where his client would certainly have received much more than she might have reasonably been able to expect were the matter to be decided in court; and
2. While making that his position, also making statements about the enormous cost of litigation.

In short, the wife's lawyer, while smiling and stating he was interested in reaching an agreement, was also threatening litigation as a negotiation tactic. In my experience, negotiating in this style is not uncommon for conventional lawyers, and I myself negotiated in that manner for years. It is a way of trying to coerce or manipulate the other party to agree to something that is otherwise disagreeable.

The problem of negotiating in this commonly-accepted manner arose immediately. Instead of having its desired effect, the husband and his lawyer both immediately became defensive. "That's outrageous!" was the immediate reaction. The wife's lawyer had placed into motion what Harvard professors William Ury and Roger Fisher describe as the "power paradox:" By using power to try to achieve a goal, you create resistance, making achieving that goal less likely. The reduced likelihood of achieving the goal is not because the goal was unreasonable, but because of the means used. And, that is one of the fallacies of the myth that one must negotiate "from a position of strength."

Negotiating that way also reduced the credibility of the wife and the wife's lawyer in the mind of the husband. This was because the husband reacted to the incongruity between the lawyer's statement that the wife desired to settle and the barely concealed threat of litigation. The threats were inconsistent with the stated desire of the wife, making the lawyer less trustworthy to the husband.

Another problem with negotiating that way is that the wife's lawyer made it difficult to retreat from that initial position without some collateral damage. In other words, because of the disappointment when the extreme offer was rejected, the wife came to feel resentful about any settlement that she did deem as advantageous to her as her lawyer's idealized initial position had been. After all, her lawyer had blessed it.

What the wife's lawyer did do correctly was to negotiate from a place of having knowledge. That lawyer understood the facts of the case thoroughly. For a successful negotiator, that type of preparation is very important. However, he then sabotaged his own ability to use that knowledge to his advantage by making threats and thereby cutting off the listening of the husband and the husband's attorney and setting into motion the "power paradox."

Negotiating in a divorce is difficult because divorce inherently raises fear and insecurity. To successfully and efficiently reach a good resolution generally means that all parties be engaged in a constructive problem-solving process. For that to occur, all parties need to feel sufficiently safe to be willing to participate. And, rather than defensively negotiating "from a position of strength," learning with an aim towards understanding is more likely to lead towards a good divorce settlement.

One of the reasons I like Collaborative Divorce is that its very structure that creates a disincentive to use the ineffectual and problematic method of negotiating from a position of strength.

Divorce Settlement or Resolution?

2011-07-23T16:36:00.000-07:00

I sometimes talk about the difference between a divorce “settlement” and a divorce “resolution.” Over 95% of divorces probably end up in a settlement. Far fewer, however, end up with a resolution. As I think of it, a settlement addresses the narrow legally-defined issues for divorce and separation. However, a divorce resolution addresses the conflict as well as the legal issues.

Ask most family law attorneys about the difference, and odds are that they'll stare blankly. Pretty much all will be very familiar with clients who reached a settlement in their divorce. However, with a settlement, too often they return time and again for new post-divorce legal proceedings, such as issues relating to parenting (child custody and visitation), child support, spousal maintenance (alimony) or other family law matters.

Most divorce lawyers focus only on issues that are defined by divorce law, ignoring anything that cannot be addressed through the legal lens. The problem with that approach is that merely addressing legal issues often leaves the underlying conflict unresolved. And that unresolved conflict then festers. Yes, the legal issues in divorce are important; however, when conflicts are not resolved, they often create problems later. Addressing only the legal issues in divorce is therefore often an incomplete approach. You really don’t want an incomplete divorce.

When arriving at a divorce resolution, both the legal issues and the conflict are addressed as part of your divorce. Doing so creates a better divorce outcome, results in an outcome that has staying power, reduces any damage to important relationships, and reduces the likelihood of the need for divorce lawyer involvement in the future.

There is no doubt that a divorce settlement is an enormous improvement compared to not settling your divorce. Maybe a divorce settlement is all that can be achieved. However, resolution addresses the underlying conflicts. It means that the parties can leave the marriage with integrity and without added damage or ongoing conflict.

Not every divorcing spouse is interested in resolution, much preferring to holding onto their high emotions even though they cause nothing but pain. However, if you value the possibility of a resolution in your divorce, ask yourself two things:

1. Do the divorce lawyers and the other professionals working on your case have the awareness and skill set to increase the likelihood of reaching resolution in as part of your divorce?

2. Is the divorce process you have chosen well-suited to allow for resolution, and restructuring families and relationships without inherent collateral damage? My belief is that mediation and Collaborative Law are most suited for resolution, while conventional representation can normally only offer a settlement.

If a durable resolution in your divorce is consistent with your values, investigate the possibilities of a Collaborative Divorce or a divorce mediation with skilled divorce lawyers and other professionals who can support you with that option.

Financial Challenges in Divorce

2011-07-03T12:41:00.000-07:00

Divorce is often accompanied by financial challenges, including that the same total of income must now support two households. Decisions and choices that you and your spouse make during the divorce process will make those challenges easier or more difficult. Here are three common decisions that can have profound impacts on future finances:

Planning for Financing for a New Residence. If purchasing or refinancing a residence for either spouse might be part of your divorce, it may be wise to delay filing the divorce with the court until the financing is handled. Filing with the court will likely have the unintended consequence of making mortgage financing unavailable until a final agreement is reached. The better choice – reach agreements before filing with the court.

Using Court Procedures Will Increase Your Expense. Court procedures can add enormous expense to your divorce, even if your case does not go to trial. Old-school divorce lawyers will often advise their clients to file motions with the court or to conduce formal "discovery" (information exchange), both of which are expensive procedures. When necessary, these can be helpful. However, they are overused and very expensive. Worse, such court procedures are likely to create a dynamic that will make reaching a satisfactory agreement less likely, because they are designed to create (or set up creating) a winner and a loser. Instead, explore alternatives that are likely to create better results, such as divorce mediation and Collaborative Divorce.

Get Good Legal Advice. Failing to get good financial and legal advice can be costly. Divorce has major financial, tax, and legal implications. Good advice will often more than pay for itself. Part of finding good advice means seeking advice from professionals whose financial motivation is consistent with your own interests. For example, it may be worth hiring a financial advisor only for divorce planning with no prospect of selling financial products. Yes, such financial advisors will charge a fee, but their focus will be solely on providing you good advice, not selling product. Similarly, if you wish to seek a settlement instead of a litigated outcome, consider hiring a lawyer who will not go to court and who specializes in divorce settlements. Hiring a lawyer who specializes in divorce, and is known to be competent, is important; divorce is a true specialty, and those who do not practice divorce law regularly are unlikely to have the knowledge base to provide the best advice. Consider hiring a lawyer who is also a Fellow of the American Academy of Matrimonial Lawyers -- Fellows are required to be recognized as experts in the field and pass tests to demonstrate their expertise. No other organization provides such an objective and stringent review of divorce lawyer skills.

Tax and Divorce

2011-06-26T18:26:00.000-07:00

Yes, you really have to think about taxes as part of your divorce. There can be significant tax ramifications resulting from a divorce. Depending on your situation, some tax issues can be quite complicated. Therefore, good divorce planning includes good tax planning.

A divorce will affect your taxes in several respects, including your tax bill when you file, and payroll withholding and/or estimated taxes. Different tax tables apply to unmarried persons instead of married persons, selected based on their marital status on December 31. Additionally, persons with different incomes may end up in different tax brackets and differing income tax brackets can affect budgets and cash flow. Spousal maintenance (alimony) is usually (but not always) tax-deductible to the paying spouse and treated as income to the recipient, so long as certain rules are followed. If the rules are not followed as part of the divorce, there might be an unpleasant surprise and the tax-effect of the alimony as part of the divorce settlement may be different. However, child support and property division normally have no direct income tax effect.

An important consideration is that different types of property come with different tax considerations that may affect their economic value, and which may affect how you view your divorce settlement. For example, property with a low cost basis (purchase price plus allowed costs of improvements) will likely come with a future tax bill that will come due when the property is sold for a profit. Similarly, retirement plans, IRAs, and similar tax-deferred assets come with future tax obligations that may affect how you view them. Some types of property, such as various types of options, can have very complicated tax considerations following a divorce. Finally, head of household status and dependency exemptions may affect each spouse’s finances.

Many of the variables can be considered and addressed in your divorce, so that you and your spouse can take maximum benefit of what is allowed under the tax laws. Divorce tax planning can therefore be an extremely important part—though a sometimes overlooked—part of the divorce process.

A good divorce lawyer can advise you about many of the tax issues that pertain to divorce. Some tax issues are complicated and technical, however, and may require advice from a qualified tax specialist. The investment in good tax advice will usually more than pay for itself.

What Kids Understand

2011-05-24T13:43:00.000-07:00

Regardless of how much you protect your children from the turmoil between you and your spouse before and during divorce, in fact they probably know a lot. According to research, the degree of understanding of children depends in part on their age. Here is what some researchers have found:

Infants. Infants may notice changes in each parent’s energy level and emotional states; older infants may notice when one parent is no longer living in the home. Their reaction may come in the form of crying and fussing; changes in their sleeping patterns, and other daily routines.

What to do: Try to maintain normal schedules and routines. Reassure them of your continued presence with words and physical affection. Keep their favorite toys and blankets close to them.

Toddlers. Toddlers may notice one parent no longer lives at home. They may also try to soothe a sad or needy parent. When that happens, they make have a difficult time separating from a parent(s) or rage at them, they may regress to old behaviors that were outgrown (such as thumb sucking), or they may lose skills they previously developed (such as toilet training). Toddlers may also have trouble with sleeping patterns or experience nightmares.

What to do: Spend more time than usual with them, especially before and after they separate from you to spend time with the other parent or other activities. Demonstrate to your toddler that you want them to spend time with the other parent. Talk your toddler's caregivers about how to support them during this transition. Be understanding if they regress to old behaviors or lose skills.

Elementary School-Aged Children. Elementary Schoolers begin to understand that the marriage of their parents is ending. Often, they blame themselves for the divorce and worry about changes in their daily lives. Because this is an age where kids struggle with differentiating fantasy from reality, they may fantasize their own resolution or even experience nightmares. They may exhibit aggressive behavior towards a parent or show other signs of grief.

What to do: Repeatedly tell them the divorce is not their fault. Reassure them that both parents love them and always will, and that their needs will be met. Talk with them about their thoughts and feelings. Support an ongoing relationship with the other parent. There are many books you can read together about divorce. Gently remind them that you and your spouse will not get back together again.

Preteens and Adolescents. Preteens and adolescents may blame themselves and have difficulty accepting the changes a divorce brings to their family. They may feel abandoned, angry and unsure about how they see love, marriage and family. They could act out in uncharacteristic ways, withdraw or suddenly worry about adult matters, such as financial security.

What to do: Maintain lines of communication and honor family rituals and routines. Ideally, both parents will stay involved in their activities – know their friends, what they do, their progress at school. Avoid using teenagers as confidantes.

Ultimately, you do the very best you can. And, get advice from a therapist whose practice focuses on children in divorce.

**Adapted from “Helping Children Understand Divorce”, by Kim Leon, University of Missouri Extension, 2004.

Asking for Support

2011-05-10T17:39:00.000-07:00

What should I do? What can I expect? What are my rights? These are normal questions when starting down the path of divorce. And, it is normal to look in all kinds of places.

Family, friends, and acquaintances will likely happily give you advice and regale you with stories of their own divorce, the divorces of others or even those of celebrities. They will probably mean well, although their information may not be particularly correct or helpful for your divorce. That is because every divorce truly is unique, and divorce has financial, emotional, legal, and child components.

In Washington, there tend to be few "legal" answers that are hard and fast. Most of what can be answered about the divorce process comes in the form of legal procedures. However, the answers really come out of a process of negotiation. If a divorce goes to trial, the judge will make a decision that will be largely a matter of his or her discretion. In other words, there are no formulas. And, there is no substitute for looking closely at your situation in divorce and then working towards a solution that is consistent with what is important.

It can be helpful to train the people who offer you support to do just that, and not provide advice that can easily lead to confusion or worse. Go to the professionals (your lawyer, accountant, divorce coach, etc.) for advice. Your friends and family can better speak to your emotional needs.

The Big Picture in Divorce

2011-04-24T14:59:00.000-07:00

No one wants the short end of the stick, especially in a divorce. This goes for both you and your spouse. However, the reality is that no one is going to “win” – this isn’t a wrestling match. The only alternative is arriving at a split of assets, debt, income, and time with children. Whether or not the split will fit your particular situation is largely up to you and your spouse.

Your lawyer can tell you how he/she thinks a judge will rule, but the ruling may or may not fit either of your values or lifestyles. Besides, most cases are settled before they get to the court room. If yours is one of the rare cases that goes to trial, the judge will rule based on what he or she thinks is right based on the law and the judge's own perspective, which may be inconsistent with what you might consider most equitable or appropriate.

Take charge of your divorce. This doesn’t pushing for a bigger settlement. It means taking the time to do a careful review of what you really want out of life, acknowledging that your spouse has his/her own wants, and working towards an agreement that accommodates both of you. If your spouse's wants are not sufficiently addressed, he/she is much less likely to enter into an agreement with you.

Beware the tempest in a teapot that can be divorce. It’s far too easy to swirl around inside the teapot without looking at the big picture. Your life will take on a new form after your divorce. Decisions you make now will shape that form. To try to keep things in perspective, think about what what it might be like in the future when you look back on your divorce with the benefit of hindsight.

Good professional support to help you maintain a "big picture" perspective in your divorce can be very helpful. That help can be from a divorce lawyer, divorce mediator, and/or therapist. Certain dispute resolution processes, such as mediation and collaborative practice, often routinely include an element of keeping the big picture in mind in your divorce.

The Impact of a Public Record in Divorce

2011-04-14T21:05:00.000-07:00

When initial papers for divorce are filed with the court, the divorce becomes a public record. To the surprise of many divorcing couples, that public record can seriously interfere with the ability to get mortgage financing.

How? Any pending divorce will appear in the detailed credit report that is obtained when applying for mortgage. Because a pending divorce means that your future income and assets are uncertain due to the pending divorce process, most mortgage lenders hesitate lending money to divorcing couples. Prior to settlement, a mortgage will likely be unavailable; if one can be found, the interest rate will be much higher once your divorce is filed with the court.

Managing the timing of the filing of the divorce petition can allow you and your spouse to plan to qualify for mortgage financing/re-financing. There are, of course, other considerations in the decision to file for divorce, so consult with a qualified divorce lawyer if you are in doubt.

In the Collaborative Divorce process, it is common to strategically time the filing of the divorce petition with the court. Doing so keeps costs down and enhances the financial and mortgage planning to maximize the post-divorce financial circumstances of both spouses.

Good Grief

2011-04-01T21:17:00.000-07:00

Divorce involves several losses. There is, of course, the loss of the marriage and the couple relationship. There may also be other losses, which might include losses of status, of a projected future, of friends, among others. Whenever there is a loss, there is a natural grieving process. The grieving process is normal in divorce, no matter the divorce process chosen. Psychologist Elisabeth Kubler-Ross identified 5 stages to grieving:

1. Denial
2. Anger
3. Bargaining
4. Depression
5. Acceptance.

You may not go through all of these stages in a divorce – you may go back and forth between stages and you might even go through them several times and through various stages simultaneously.

Each party to a divorce will go through these grief stages on his or her own time schedule. Other emotions are also common, including shame and blame. At times, these very normal emotions can feel like they are intruding on your life, and feel overwhelming. Anxiety about a future that cannot be known for some time can also intrude. Fortunately, for most people these stages of grief are temporary and will eventually lead to acceptance. Recognize that you and your spouse will be going through a grief cycle. Anger, denial, or depression you or your spouse may feel today will likely change into something else.

The normal emotion of anger can be particularly corrosive if not viewed as part of a normal grieving process. Keep in mind that the anger you feel yourself, or the anger that might be coming towards you may well be temporary. When angry or responding to anger, it can be easy to over-react. Keeping that in perspective might allow you to avoid taking action you might later regret.

Choosing a Collaborative Divorce can be particularly helpful. The likelihood of over-reacting to a normal emotion is substantially reduced, because in a Collaborative Divorce both parties have committed to resolve conflict without using the courts, and many Collaborative Divorce professionals have training in helping you keep emotions that might otherwise overwhelm in perspective.

Financial Parts of Divorce

2011-03-21T21:35:00.000-07:00

There are four primary financial parts in a divorce:

1. Property and debt division
2. Spousal maintenance (alimony)
3. Child support
4. Professional fees (transaction costs).

The components can be interdependent: the property division may affect spousal maintenance and child support; spousal maintenance may affect the property division and child support; and child support may affect spousal maintenance and even sometimes the property division.

In Washington, the law does not provide a formula for property division or spousal maintenance amount and duration; while there are worksheets for child support, but they only yield a presumptive amount from which there may be a “deviation.” Generally, the goal in a divorce is to ensure that the overall outcome will be as fair to everyone as circumstances will permit, including the obligation to support children.

In a Collaborative Divorce, a professional team will ordinarily spend some time working with the assets, debts, and budgets of both parties, to ensure that the financial future of both will be as secure as circumstances may allow.

Financial decisions that are made during a divorce may well have tax consequences now or later), and the tax rules can be complicated. Different types of property have different after-tax values.

The financial part of a divorce is vital to your future and your family's future. Get good financial and tax advice, and take your time to carefully consider your options and the various ways you can accomplish your financial goals before making any final decision. In a collaborative divorce, be sure that your team includes a neutral financial specialist, who can provide you and your spouse with careful financial analysis and education.

The Silent and Unmentioned (In Most Divorces)

2011-03-08T21:06:00.000-08:00

Divorce lawyers rarely pay attention to them. Nor does the law. Yet, divorce has a profound impact on them. Who are they? Family friends and extended family members.

You will likely continue to see family members and friends at graduations, weddings, holidays, and other events. What happens in your divorce will likely affect your relationships with these important people in your lives. It may impact the participation at or the quality of family and social events and gatherings. It may impact who is available to help you and your children in the future.

If, for example, you rely on grandparents or other family members to help care for (or carpool) your children, is that something you wish to maintain? Ending a marriage does not need to mean that important relationships will end. Often, they can be preserved.

While these concerns may not be at the forefront of what you might be thinking in your divorce, and likely won't be raised or considered by most divorce lawyers because the law is silent on such matters, you probably don’t want to underestimate the importance of these relationships during your divorce.

Decisions you make while going through a divorce will impact those relationships in the future. Regardless of how odd it may seem to some, maintaining a working relationship with in-laws, other family members, and family friends happens all the time in divorce, and will usually be beneficial for you in the future.

Because the law is generally not all that concerned about maintaining relationships, conventional divorce lawyers are generally not well equipped to help you work with these types of relationships. In fact, many if not most divorce lawyers self-limit their services to addressing what can be enforced in court.

Some of the most powerful resolutions may not be legally enforceable. Divorce law (and other law) serves a good purpose, but it is not designed to help you maintain relationships. If you are thinking about divorce, consider what you can do to help maintain those relationships. And, consider selecting a divorce process that will help you transition in a manner that tries to address your goals and values for the multitude of relationships that are important to you.

Support During Your Divorce

2011-02-26T10:15:00.000-08:00

Divorce is one of the most difficult life transitions you will ever have, impacting the immediate family and extended family, let alone friends and community. So yes, divorce is a major event. Just making that first phone call to make an appointment with a divorce lawyer to gather some information is often challenging.

One of the biggest challenges of divorce is that the substantive outcome cannot be known in advance. It will become known as you get there. And, while every divorcing party wants to know what will happen in the end, and many want to conclude right away, it often takes some time to reach an adequate understanding to be able to make good divorce decisions. In many ways, all people going through divorce will have to tolerate a period of unknowing and ambiguity, which can be uncomfortable and confusing.

What can help in this period? Gather your support systems – family, friends, spiritual community, therapist – whomever you can call upon for emotional help when you need it. There are many ways to negotiate ongoing emotional support. You might be able to make agreements with your emotional supporters so know to whom to rely upon at any given time. It is equally important to feel what you feel on your own.

And, remember that while supporters will do their best, most are not divorce experts, and well-meaning efforts to give you advice on substantive matters might be misguided. Focus on using your own supporters for emotional support. Look to your divorce lawyer, and Collaborative Divorce team, to provide you with substantive support.

The limbo will end. That’s not to say there won’t be bumps in the road or areas where dialogue will be ongoing (especially when children are involved). But you will reclaim your life, your new life, in time. In the meantime, be kind to yourself.

Confidentiality and Transparency in Collaborative Divorce

2009-12-20T21:04:00.000-08:00

Oftentimes, professionals describe Collaborative Divorce as a process that is both confidential and transparent. Without more, these concepts can appear to be contradictory. How can these contradictory concepts exist side-by-side in the same dispute resolution process?

The Collaborative Divorce process is designed to be transparent in the sense that all information that may be important to resolving the dispute must be disclosed. Usually, this transparency is achieved through various tools. A requirement to disclose information is usually contained in the Participation Agreement, the contract that lists out the legal pieces that become the Collaborative Divorce process. There may be additional documents that are signed, sometimes under penalty of perjury, to ensure that there has been complete disclosure. I make it my practice to include sworn statements in final documents that everything that needed to be disclosed has been.

The transparency extends to the flow of information among the participants. For the Collaborative Divorce process to be effective, information needs to flow. Factual and educational information needs to flow to everyone; process information needs to flow between the professionals and then to the participants.

Neutral professionals are generally prohibited from holding onto confidences from other participants. Information that the neutral professional team members (such as the financial specialist, child specialist, and neutral coach in a one-coach model) receive is routinely and systematically disclosed. Similarly, there is a flow of information to and from non-neutral team members (attorneys and coaches in a two-coach model) if relevant. More on this below.

Transparency provides safety within the process, by helping to ensure that important information is known to all involved. By sharing information, everyone can participate in creating options and arriving at agreements. Without adequate information, it is not possible to take everything into account what may be important. Agreements made with inadequate information therefore tend to be shallower and less durable, if not a source of renewed conflict when the inadequacy of the information is discovered. The requirement for transparency in the Participation Agreement therefore not only helps to create safety for all participants, but also enhances the likelihood that the agreements reached will be durable.

Confidentiality likewise enhances safety. The confidentiality of the Collaborative Divorce process extends to the process as against the outside world. All the information exchanged in the process is to remain within the process. While the parties and their professional team are expected to be transparent among themselves, all are similarly expected to to maintain the privacy and confidentiality of the information against outsiders.

How is this confidentiality maintained?

There may be testimonial privilege (technically a different concept from confidentiality), that would prohibit testimony being elicited from those professionals who have a privilege. Privilege is usually created by statute. The professionals who have a testimonial privilege (generally the attorneys and mental health professionals in a Collaborative Divorce), cannot be compelled to disclose privileged information. However, privileges are narrowly construed and there are many exceptions to testimonial privilege that could impact a collaborative case.

In legal-speak, confidentiality is not the same as privilege. Confidentiality comes from several sources, including ethics rules, contracts (such as the Collaborative Divorce Participation Agreement), the rules of evidence prohibiting testimony concerning settlement discussions, regulations, and other sources. The Uniform Collaborative Law Act (not yet adopted) will provide additional protections of confidentiality. All of these sources are legally defined and have their limits.

In a Collaborative Divorce, the Participation Agreement normally contains provisions that address the confidentiality of the Collaborative Divorce process. Ethics and other rules that are applicable to the professionals (and HIPAA rules for the mental health professionals) enhance the confidentiality that is contracted in the Participation Agreement.

The purpose of Collaborative Divorce is to reach a good and durable settlement, and all the efforts of the team members are in working towards that settlement. While there are exceptions to the Rule of Evidence concerning settlement discussions, the triad of statutory testimonial privilege, the rule of evidence restricting settlement discussions, and contractual-ethical requirements provide significant protection of the confidentiality of the Collaborative law process.

How does the transparency requirement impact the non-neutral professionals? Must the lawyers and non-neutral coaches disclose information provided by a client in confidence during the Collaborative process? The general rule for lawyers, set out in RPC 1.6, is that lawyers are not allowed to reveal information unless expressly authorized by the client (with informed consent) or impliedly authorized because it is needed to carry out the representation. Given the contractual requirement in the Participation Agreement for transparency of information (signed by the lawyers), and the education that clients receive from their lawyers, perhaps also in the lawyers' retainer agreement, in many cases information would be expected to be routinely shared where appropriate.

Even in a Collaborative Divorce, clients are not precluded from instructing their attorneys to maintain the confidence of information. Such an instruction does create an ethical question for the lawyer. Attorneys are ethics-bound to maintain the confidence of that information when instructed. The issue arises out of the requirement in the Participation Agreement (and possibly the retainer agreement) to disclose information that the client is now asking to be withheld.

With the undertaking of transparency in the Participation Agreement, when a client gives such an instruction, the lawyer will need to engage in a conversation with the client about the obligations under the Participation Agreement and the impact on the Collaborative Divorce proceedings. For information that may be material, there would normally be two possible answers. Either (a) the confidence is maintained and the Collaborative Divorce ends, or (b) the confidence is disclosed in a sensitive and appropriate manner and the process continues. At all times, the decision lies with the client.

In some ways, the transparency requirement in Collaborative Divorce is little more than an extension of the Washington law that spouses owe a fiduciary duty towards each other until the divorce is final. (This is not the rule in every state.) Hence, the Collaborative Law transparency requirement helps assure that there is integrity in the process both from a conflict resolution and from a legal standpoint.

Divorce Resolution

2009-11-14T15:56:00.000-08:00

The time of divorce is not fair. It is well-studied that the ability to make good decisions is impaired in times of stress and upset. Yet, some of the most important and difficult decisions anyone can be asked to make in a lifetime occurs during divorce -- at precisely the time when one is likely to be least able to make well-grounded decisions.

As if this were not enough, divorce involves interacting and learning about worlds that are unfamiliar to many people -- the worlds of divorce law, financial analysis, parenting children in divorce, and resolution processes.

I have written a lot about Collaborative Law and mediation as effective dispute resolution processes. I have written less about a key distinction within those processes. That is the distinction between dispute resolution and conflict resolution.

What is the difference? "Dispute resolution" is about resolving the legal issues. It is about dividing the property, establishing a parenting plan and child support, and dealing with all the other legal nuts and bolts in reaching a settlement. Dispute resolution is a highly valuable and beneficial process. Taken to an extreme, an example of "dispute resolution" is when the court make all decisions, but even most other processes are "dispute resolution" processes rather than conflict resolution processes.

If dispute resolution is treating the symptoms of a disease, conflict resolution is treating the disease itself. When successful, in both cases the symptoms are reduced or disappear. However, if the underlying disease is not treated, then some symptoms may continue at a reduced intensity, or symptoms may reappear, or completely new manifestations of the disease may occur. The same is so with dispute resolution instead of conflict resolution. Unless the conflict itself is resolved, new or additional disputes (legal or emotional) may well become new symptoms of the unresolved conflict.

Dispute resolution therefore is not the same as "conflict resolution." Conflict resolution takes everything that dispute resolution has to offer -- seeking to settle legal issues -- and aims deeper, towards the very root of the conflict. By addressing the root of the conflict, the likelihood of "symptoms" -- irreconcilable problems in the future -- is diminished.

In divorce, most people want the pain to just be over. That is normal -- no one likes being in pain. And yet, without exploring and addressing what lies at the root of the conflict, the symptoms of the conflict -- the pain -- may well continue or be worse. Perhaps there is a reason for the terrible pain of divorce, and perhaps that reason is because there is something to learn, however difficult or unpleasant.

More and more Collaborative teams -- especially those working in an interdisciplinary team model, with all core professionals (legal, financial, emotional) being part of the Collaborative divorce process from the outset -- are offering the possibility of conflict resolution in addition to dispute resolution. This is one more reason why an interdisciplinary team approach often makes sense.

When there is closure on the conflict (as opposed to the dispute), all are more likely to be able to make good decisions by looking at the situation and making informed choices without so much emotional charge.

As unfair as divorce may be, it does provide the opportunity for some growth and addressing the conflict and not just the disputes. While not always available, or even desirable, it is well worth considering what type of divorce process would be best for you -- dispute resolution or conflict resolution.

2009-10-06T21:41:00.000-07:00

I just received updated information from the International Academy of Collaborative Professionals Research Project. The research, independently conducted by Crescent Research, provides some interesting data. I found these statistics particularly noteworthy:

Resolutions and Mediator Use. 90% of cases resolved through the Collaborative process. This very high success rate was achieved, even though almost none of the cases included a mediator -- a mediator was included in only 3% of cases. These two statistics reflect the successful formula of the Collaborative process, where the attorneys and other professional team members facilitate the cases. Of the ten percent that terminate the Collaborative law process without resolution, many later settled without trial; however, the research study did not track those cases.

Duration. 47% of cases complete in less than 7 months and 61% in less than 9 months. 20% take longer than a year.

Joint Sessions. In this research study, the average number of joint sessions reported was 4 per case. The average hours per meeting was 2.5.

Difficulty of Cases. The professionals rated 40% of the cases as "difficult" or "very difficult." Collaborative law is successfully used for moderate and high conflict cases.

Total fees. According to the research study, combined professional fees averaged $32,900 for difficult cases. 83% of clients felt the fees were reasonable or very reasonable.

Client Satisfaction. 78% of clients were "somewhat satisfied" or "extremely satisfied." 80% would probably or definitely recommend the process to others.

The research was based on 793 cases reported in the last year through August 24, 2009. Most were divorce cases. Given the obstacles to reporting, this is a large number of cases. Literally every Collaborative professional I have spoken to about this survey in the last year has indicated to me that they do not report cases because the requirements to meet IACP's research criteria are simply to complex and difficult.

I would be amazed if any other divorce process yields the satisfaction rates that the Collaborative process shows in this survey. While other processes might yield similar settlement rates, a 78% satisfaction rating highlights that what makes Collaborative divorce different is not the quantity of the cases that settle, but the quality of the settlements and the process. If the value of the service is measured by satisfied clients, then Collaborative law truly stands out as providing a uniquely high value for clients.

Anecdotally, my experience is not dissimilar. The primary differences are that, in my experience, the total attorney's fees in King County tends to be higher than reported in the research, particularly among the more senior and experienced practitioners. This is likely due to regional variations in hourly rates. The total average number of joint sessions is higher in my experience than reported in the study, although that may be reflective of the complexity of the Collaborative Divorce cases that I tend to handle. I would also rate a higher percentage of my cases "difficult" or "very difficult" than reported in the research. Otherwise, this research tracks closely with what I see in my practice.

Most significantly, this research adds to the body of data on the Collaborative divorce process. It provides additional information supporting the Collaborative process as a highly successful conflict resolution process that is quite distinct in terms of the quality of the resolution that is actually achieved in a large percentage of cases.

Advantages of Disqualification in Collaborative Divorce

2009-07-11T18:25:00.000-07:00

A Collaborative Divorce is governed by a "Participation Agreement" that sets out the contractual parts of the Collaborative process. One of the key provisions is the so-called "disqualification" provision, which disqualifies the lawyers such that they cannot represent the clients in an adversarial proceeding. In other words, lawyers in a Collaborative Divorce may not represent their clients in court in any contested matter.

This means that new attorneys will need to be hired if the process terminates prior to final agreement. Fortunately, only a small minority of cases (statistically, about 5% of cases) don't reach final agreement. The vast majority of cases in the Collaborative Divorce process successfully settle in the process.

However, there are also many advantages of the disqualification provisions that cannot be obtained without disqualification, and which for many couples outweigh the disadvantage.

The advantages include:

Complete Alignment of Attorney Interests with Reaching Agreement - While many attorneys feel they try to help clients reach settlement, the disqualification provision assures clients that their attorney's sole focus is on reaching settlement.

Safety - Knowing that both attorneys are fully committed to helping the clients reach an agreed settlement adds a level of safety and assurance for the clients. Neither client needs to worry that the lawyer who acts nicely today will be the lawyer who will cross-examine them if the case does not settle. This additional safety allows clients to explore options in ways that are not likely possible in a process that does not have this safety built in.

More Confidentiality - Because neither attorney can go to court, there is no public forum where confidential information might be revealed. The disqualification provision therefore supports better confidentiality.

Incentive to Attorneys to Learn Non-Coercive Dispute Resolution Skills - Lawyer training in the United States is largely focused on using the court and coercive skills to try to get other parties to back down based on the strength of cases in the courts. While useful in the courts, those skills may not be as useful when seeking to reach a durable voluntary agreement. Attorneys who are willing to abide by the disqualification provision therefore have a strong incentive to learn non-coercive dispute resolution skills.

Trying Harder- When court is no longer an easy option, all simply work a bit harder to reach settlement.

These are just some of the advantages of the disqualification provision.

Suitability for Collaborative Divorce

2009-07-03T21:08:00.000-07:00

People often ask me: "which cases might be appropriate for a Collaborative Divorce?" They are sometimes surprised when I tell them that divorces with a moderate or even significant level of conflict are often appropriate divorces for the Collaborative process. Perhaps the most essential requirement is that both spouses be committed to resolving their dispute themselves, and willing to engage with integrity in the process to accomplish an optimal outcome consistent with their values. The commitment of the parties is as paramount to the suitability of the Collaborative Divorce process as is the training and experience of the lawyers and other professionals.

But which divorces might not be appropriate for a Collaborative Divorce? There are "red flags" for which Collaborative Divorce lawyers watch.

The most obvious red flag would be those divorces where there is active coercive-type domestic violence or where equivalent coercion and control is present, and cases involving substance abuse, or where mental illness is present. Some believe those cases are never appropriate for a Collaborative Divorce. Others believe a few of those types divorce cases may be suitable for a Collaborative Divorce unless certain conditions are met, for example (a) both parties fully acknowledging and accepting the depth of the problem, (b) an appropriate treatment plan for is in effect and monitored, (c) a highly experienced Collaborative Divorce professional team is in place (lawyers, coaches, financial, child specialist, etc.), (d) an assessment as to suitability, and (e) the parties willing to have a lot of patience. Similar conditions might be appropriate for divorces involving substance abuse or mental health problems. Even when the spouses are fully committed and appropriate treatment is in place, those cases will likely be highly challenging in the Collaborative Divorce context.

Other divorces that raise concerns include those when a client wishes to enter the process for a dishonest purpose, such as to use the process to undue advantage or otherwise undermine the objectives of the Collaborative Participation Agreement. A Collaborative Divorce is unsuitable for clients who are unwilling or unable to respectfully participate in joint sessions, and those unwilling to abide by similar boundaries in-between the joint sessions. Clients engaging in the Collaborative Divorce process must also have at least a small amount of trust that the other will be participating in good faith in the process, even if there may be significant conflict.

The good news is that a Collaborative Divorce is suitable for most people. The dysfunctions that would exclude people affect only a minority of the population. If the spectrum of divorcing clients is depicted by a bell curve, with no-conflict cases on one end and highly conflicted cases on the other, then the vast majority of cases -- those that are solidly in the center of the bell curve -- are suitable for a Collaborative Divorce. For those who are suitable and who choose a Collaborative Divorce, it can be a life-changing experience for the better.

Video Interview about Collaborative Divorce

2009-05-01T19:48:00.000-07:00

We live in an age of ever-increasing media options. At one time, video production was largely available only at great cost. Nowadays, websites on the Internet seem to be using videos as a means of disseminating information.

The Collaborative Divorce field is no exception. There are a number of good videos about Collaborative Divorce that link from the website of the IACP.

My colleague Holly Hohlbein and I have now joined this new medium of of the Internet video. We were recently interviewed about Collaborative Law by Bellevue career counselor Jan Reha, who uses these videos to educate consumers about her services and related topics. Recorded in a conference room in her office a week or so ago, it has already been posted on the Internet. This is an interesting new world.

For our first video appearance, see here:

15 Seconds of Fame

2009-04-24T21:38:00.000-07:00

If Andy Warhol was correct that everyone will have their 15 minutes of fame, it seems that Collaborative Divorce is getting its share. Nowadays, people no longer look at me funny when I tell them I'm a Collaborative Divorce lawyer -- I am more likely to hear something like: "Oh, isn't that the friendly divorce? I heard something about that. Cool!" I never remember anyone previously telling me that my profession as a divorce lawyer was "cool." This really is different. More and more, it seems that people are learning about the many benefits of the Collaborative Divorce model.

This is no doubt due in part to the buzz of the many successful Collaborative Divorce cases. It sometimes seems that a day doesn't go by without another article somewhere about Collaborative Divorce. So it was that a friend of mine told me that she had read about one of my clients in the April issue of Seattle Woman Magazine. "Really?" I asked, as I made a mental note that I needed to look up that article. So it was that I learned that one of my cases had become part of the 15 minutes of fame of the Collaborative Divorce movement. Here is the link: Harmonic Divergence: A Win-Win Way to Divorce. It was really nice hearing about my client's wonderful experience.

More ink was spilled in April on the benefits of Collaborative Divorce in an article I wrote for the King County Bar Bulletin: Offering Families a Chance at a Better Divorce. My article was focused on helping other lawyers -- divorce lawyers and non-divorce lawyers alike -- learn about some of the significant structural advantages of the Collaborative Divorce process in helping clients divorce.

Collaborative Divorce Law as a Historical Development

2009-02-26T20:22:00.000-08:00

In terms of legal history, divorce is a relatively new concept. Only after the gradual acceptance of marriage as a civil contract (as opposed to a religious undertaking), were divorce legal systems developed in the civil courts. Before then, marriage matters were ecclesiastical in nature.

American divorce law was not part of the common law; in England, divorce could only be granted by an Act of Parliament. It was not until 1858, long after the American Revolution, that divorce could be granted by English courts. Applying religious law or doctrine, ecclesiastical courts could only grant annulments (as if the marriage never happened) or separations that did not allow parties to remarry.

The first divorce statutes in the United States were developed beginning in 1870. No-fault divorce was not introduced in the United States until 1969 in California. Washington's no-fault divorce statute was adopted in 1973. Prior to the adoption of no-fault laws, divorces could only be granted on proof of reasons for divorce, such as adultery, cruelty, or abandonment.

The concept of fault as a ground for divorce was a key factor in placing divorce decisions in the courts. Courts were deemed well-positioned to weigh the evidence to determine if there was adequate proof of "fault" for which the divorce could be granted. Using courts for the newly-created remedy of divorce was perfect for the morals of the late 1800s.

While perhaps adequate at determining fault -- "guilt," as it were, for divorce -- courts were never designed to restructure families. Neither judges nor lawyers were generally trained in family systems, instead focusing on making standardized decisions based on the mores of the time.

Although history and society has changed, legal decisions concerning divorces with the courts, even though fault-based systems have long been abrogated. Yet, despite divorces becoming more routine, and society changing, inherent structure of the divorce court has not changed since first established, even if the laws have.

In the United States, the structure of courts is adversarial -- the theory being that both sides present their cases, and the court is to determine the truth based on those presentations. Unfortunately, the structure of the adversarial system is less than conducive to helping people through what has become a normal, routine, life transition, and makes it difficult or impossible for attorneys to act in sufficient coordination to contain conflict and thereby assist parties in providing a better resolution.

One of the responses to the structural limitations of the adversarial legal system for divorce has been the development of Collaborative Law. Collaborative Law contains an institutionalized recognition that clients are in crisis and will therefore necessarily experience intense emotions as they restructure their families. Generally, the Collaborative process focuses the clients on their highest long-term goals, helps them obtain and understand the information needed to make good decisions, and then ushers them to productively and jointly work towards satisfying those interests. Collaborative Law is a formal process in which both clients are represented by attorneys who are trained in the process and its procedures to allow clients to safely move through their normal emotions and dynamics to a successful outcome, while also thoroughly addressing the legal, parenting, and financial issues. The measure of success is a durable agreement, which necessarily means that relationships important to the client be preserved.

Currently, there are only a handful of law schools that offer Collaborative Law as part of their curricula. For most of us, the process and techniques that are used in Collaborative Law lie outside our prior legal training and experience. While knowledge and skills in substantive law and court procedures are needed in Collaborative Law practice, conventional legal training and experience does not prepare attorneys to work within the formal Collaborative Divorce process structure.

For more information about Collaborative Divorce, visit www.mark-weiss.com

Divorce in the New Year

2009-01-01T11:54:00.001-08:00

Most divorce lawyers experience an upsurge in calls from clients after the holidays. Although the new year is just starting, it looks like 2009 will have the familiar uptick in client calls in January. For me, a number of people have called as early as November to make appointments to see me in January. It seems that many couples try to hold things together for their families for the holidays. Those who do well are able to give their family a nice holiday; others are less successful, with the knowledge that the great unknown of a divorce is looming.

What may make things more challenging this year is the economic turndown. It is not known whether the economic conditions will cause an overall increase or decrease in the divorce rate. Some couples teetering on divorce may want to "tough it out" because of their economic situation. Others may feel that the economic stress only exacerbates anxieties in their relationship. We can all hope that a silver lining of the economic downturn will be that more couples will seek out counseling before making a divorce decision, to be sure that they are truly making the best decision for themselves.

Rapidly changing asset values certainly add a wrinkle to divorce settlements. Last week, I mediated a young family's divorce settlement; the main question for them was how to best divide the debt and avoid bankruptcy. They did a good job in the mediation and made some very difficult decisions that required each to reflect on how they got to where they were. I believe we will be seeing more of those cases, especially since a large part of the economic conditions seem to have resulted from over-borrowing and an over-extension of easy credit.

In other cases, I have seen how carefully planned finances have needed to be redone based on changed conditions. For many who divorce, the most important thing is to be able to own a house or condominium. When both parties seek to own their own dwellings, all try to do more with the finite assets and income that exists. When the value of investments decrease, making an adequate down payment becomes more difficult. Tightened credit availability increases the necessity for an adequate down payment. The squeeze is easy to see. So far, there has been no bail-out on the Main Street of divorce. Yet, declining real estate values may well help these couples, although the decreases in the Seattle area have neither been as rapid nor with the dramatic swings as seen on Wall Street.

I believe that all this makes it even more important for lawyers, financial specialists, and other divorce professionals to do good work. With fewer assets with which to work, it becomes more important to try to help people efficiently and to identify the opportunities that exist. I have long believed that the role of the lawyer is to help clients by assisting with problem-solving, rather than problem-creating. To me, that includes providing information and engaging in inquiry with the client, to ensure that the client understands the impact and wisdom of his or her initial decision.

The value I try to bring top my clients is by helping and empowering them to arrive at the best solutions they can for their problems. To me, that does not mean seeking compromise from values. I view the compromise of values as an obstacle to conciliation, an enemy to resolution, and inherently disempowering. Instead, my goal is to help clients advance their highest interests by helping them truly identifying their values, needs and goals and reaching conciliation by honoring and working towards those values, needs, and goals.

On this New Year's Day, a day for new resolutions for many, it is good for me to re-commit to helping people problem-solve, make peace, and conciliate. Happy New Year.

Getting Good Advice

2008-11-01T17:23:00.000-07:00

In addition to practicing collaborative divorce law, I also train lawyers and other in the collaborative law model. At a recent introductory training for collaborative law, a participant asked whether collaborative divorce attorneys should refer clients to litigation attorneys to advise them as to what might happen if their case was litigated. I found the question very interesting. Subsumed in the question was the assumption or belief that litigators were best positioned to predict likely outcomes in court.

I often say that clients should not seek advice on collaborative law from lawyers who have not received training in collaborative law. The reason is because the collaborative law model is so different from conventional legal representation, that the collaborative law model is not well understood without training. However, all collaborative law attorneys have been trained in conventional representation, including litigation. In fact, collaborative law attorneys must be able to advise their clients about the law, drawing on the same resources and analysis as conventional attorneys. Collaborative divorce attorneys need to be as up-to-date and skilled at the law as any other attorneys. The difference is in the process and the way the information is used.

Yet, the questioner had an interesting point. There is an old saying that "a good lawyer knows the law, but a great lawyer knows the judge." In divorce and family law in particular, broad equitable principles are applied to decide cases. Since those principles are imprecise at best, and the application can vary depending on the local judge, there is definite value to familiarity with local judicial views. In counties with one or two judges, that can be done.

However, in large counties, having that degree of knowledge about specific ways judges might make a decision on an equitable matter is very difficult or impossible, since there can be too many judges and too few data points. In King County, where I practice, there are over 50 Superior Court judges, and it is extremely difficult to get that degree of knowledge -- there are simply too many data points (Judges) and too few contacts per data point for most lawyers to assemble a cohesive perspective of the many different judges.

Interestingly to non-lawyers is the fact that most divorce lawyers do not have frequent trials. Most litigators whom I know have maybe one to three trials per year. The contacts that most lawyers have with the court is on temporary motions, with different judicial officers applying different laws based on different standards and different considerations. It is problematic to extrapolate from Commissioners' calendars for temporary orders to final orders from Judges following trial.

The litigating divorce attorney will look at a case from the perspective of evidence and persuading a judge, which is a different perspective from that applied by a Collaborative Divorce lawyer. While I believe that Collaborative Divorce lawyers can and should be able to provide good advice as to the law, it remains an interesting question to me more because of the different perspective, rather than any possible substantive difference.

Lawyers and Dispute Resolution

2008-07-05T18:10:00.000-07:00

Like all other professions, lawyering is becoming more and more specialized. As time marches on, so has specialization. Over the past twenty years or so, the new field of alternative dispute resolution ("ADR") has emerged. ADR is really a misnomer -- "alternative" means other than the courts, which most responsible people have always viewed as the last resort for resolving disputes between private parties.

While the notion that settlement is preferred to litigation may be as old as the law itself, the concept of ADR as a formal discipline is quite new. This discipline includes the study and analysis of human conflict. Students learn about conflict and personality styles, and how to integrate various assessment, intervention, and dispute resolution techniques. This emerging field is beginning to draw from other disciplines, including psychology and physiology. There are several major centers that research, study, and teach the resolution of human conflict through ADR. Some of the most famous centers are at law schools, such as at Harvard and Pepperdine University Law Schools. The Harvard Program on Negotiation has even generated best-sellers for the general public such as the ground-breaking works Getting to Yes, and Difficult Conversations.

Unfortunately, there are only a handful of such centers. In fact, classes in ADR were not even offered in many law schools until ten years or so ago. Even today, those classes remain electives in many, if not most, law schools. The primary focus of most law schools continues to be on the useful skills of how courts interpret the law, how to procedurally maneuver through the courts in lawsuits, and adversarial advocacy. Unless deliberately sought out by students, legal education minimally focuses on helping clients solve problems, let alone current ADR techniques.

While most ethical lawyers seek to avoid going to trial whenever viewed as possible, most also lack formal education or any breadth of experience in ADR. Most lawyers settle their cases in one of the time-honored adversarial ways of our parents: by reluctantly compromising from ideal or desired divergent positions, by overpowering those less sophisticated or powerful, or by having decisions or recommendations made by private "rent a judges" through arbitrations. While such methods were perhaps state-of-the-art fifty years ago (and continue to have their place today), knowledge has significantly advanced, and such methods are far less than optimal for most conflicts. The old methods often even contain the seeds for future conflict. Ironically, many routine actions by adversarial lawyers can have the unintended consequence of fueling conflict and making cases more difficult to efficiently settle. This is not intentional, but due to shortfalls in legal training and knowledge.

Like all people, when lawyers without formal ADR education hear about other ADR alternatives -- such as interest-based mediation and collaborative law -- they make assumptions based on incomplete information. Many hear the words and think it is the same as what they already do, or that such methods do not adequately help their clients. In fact, interest-based ADR differs substantially from what adversarial lawyers do, and can help clients reach significantly better resolutions than is possible in an adversarial process.

Perhaps in part because the legal profession is largely unfamiliar with interest-based ADR, many non-lawyer mediators offer services using interest-based ADR techniques. Additionally, it takes substantial education, time, and practice to gain skill in ADR techniques -- for most, the techniques are very much like mastering a foreign language. The best of these non-lawyer mediators are extraordinary individuals who bring enormous skill and great care to their work. However, there are also many mediators who inadvertently cause their clients legal damage, and who may be unaware of significant legal consequences and effects due to their lack of legal education and experience. And, clients may not be aware of the legal effects of their decisions, because mediators are generally prohibited from giving advice.

The various ways to address disputes can have significant legal consequences. Arriving at an optimal outcome may well require the substantive and technical skills and knowledge that an experienced attorney has. For example, there is often an agreement reached when people resolve their dispute. This agreement is a legal document that can have far-reaching repercussions, and which may require substantial technical know-how to properly draft so the agreement is clear, can be implemented, and does not have unintended consequences. The settlement may have built-in legal landmines that an attorney could point out; and, if not properly prepared, the agreement may not be enforceable. There are significant benefits from substantive legal advice.

The challenge for the consumer who seeks an interest-based resolution to his/her dispute is how to benefit from the substantive technical legal skills and advice of a qualified attorney, and also benefit from the ADR skills of a skilled practitioner in ADR techniques. Both skill sets take education and years of experience to master. Sadly, the most experienced lawyers are likely the ones least likely to have any formal education in ADR.

The challenge for the informed consumer seeking to resolve a dispute that has legal consequences is to find the best skill set (or combination of skill sets) for his or her needs. If the consumer wishes to pursue interest-based mediation, he or she should likely have an attorney (even one not trained in ADR) to provide legal advice, and to prepare legal documents. Better yet, the consumer will locate an attorney who has both substantial experience and skill in substantive law, and substantial education and experience in interest-based ADR such as mediation and collaborative law.

As ADR becomes more known, available, and regularly practiced in the legal community, this combination of skill sets will likely become more widely available. Until then, the consumer who wishes to most effectively use ADR processes too often faces a deficit in professionals in one of two categories: (1) competency in ADR skills that take years to develop, and (2) solid, sophisticated, substantive legal skills that also take years to develop. Until more gain both important needed skill sets, the careful consumer of dispute resolution services should try to learn as much as possible, ask potential service providers as many questions as possible about their experience and education, and to always abide by the adage caveat emptor (buyer beware).

Two Divorces

2008-03-27T21:32:00.000-07:00

It is often said there are two divorces: the legal divorce and the emotional divorce.

The legal divorce is generally considered to be the practical part of the divorce. The legal divorce is the part that deals with important practical parts, such as how property and debt will be divided, what child support and spousal maintenance will be paid (if any), how the children will be parented, and, of course, changing the legal status from married spouses to unmarried individuals. The duration of the legal divorce depends on the applicable substantive laws and procedural rules, as well as how fast the parties can and want to settle.

The emotional divorce is less defined by time. Many people report that it takes two or more years after the divorce decree has been signed for the emotional divorce to occur. The emotional divorce involves the grieving process, but also a lot more -- all the emotions that result when the dream of the marriage has comes to an end, and the ensuing adjustments. There are some people who never fully go through an emotional divorce, and stay stuck in the pain of their marriage -- you may know some of them. Ongoing acrimony and unresolved issues can prolong the emotional divorce.

Any legal process necessarily focuses on the legal divorce. Adversarial processes recognize that an emotional divorce occurs, but generally lack the luxury of being able to give little more than lip service to the emotional divorce, usually with a referral to a therapist. Legal procedures, and time schedules set by court rules, necessarily take priority.

By contrast, honoring and respecting the emotional divorce is central to the collaborative divorce process. It needs to be, because emotions are often a key element to settlement. The collaborative divorce process therefore needs to be well-suited to placing divorcing individuals in a space where they can productively process their emotions so healing can occur. While neither healing nor the emotional divorce is actually part of a collaborative divorce, the collaborative divorce process needs to be -- and is -- gentle and adapted to allow the emotional divorce to productively progress. The process gently and respectfully step out of the way so healing may occur. Working with the emotional divorce is an important part of collaborative divorce training, and within the skill sets of many experienced collaborative divorce attorneys.

A coach, trained in counseling, is often used in collaborative divorce cases to help the spouses. Because the collaborative divorce process is a legal process that is focused on a legal divorce, good coaching will be limited to efficiently preparing divorcing spouses so they can productively participate in discussions for resolution of their legal divorce. Coaches will also provide information to the attorneys to better facilitate the collaborative divorce. Consistent with its purpose, coaching is short in duration and not confidential. The coach's office is therefore not the place to process the more time-intensive emotional divorce -- that is best addressed in private and in confidence with an individual therapist who can work with divorcing spouses at their own pace. The goal of the coach is to help clients get "unstuck" so they can talk about what is most important to them in their legal divorce, thereby enhancing the likelihood of reaching resolution.

Two divorces. One divorce.

The End of the Dream

2008-02-29T20:50:00.000-08:00

One of the great gifts of Collaborative Practice is that it provides safety and opportunity for people to process emotions as their marriage or long-term relationship comes to an end. One of the privileges of practicing Collaborative divorce is when people seek us out to help them process during such an intimate moment of their lives.

Two years ago, a client of mine walked out in the middle of her first joint session. She described having experience an overwhelming feeling of pain and that she was angry over what felt like she was negotiating the terms of a death. Fortunately, the Collaborative process recognizes that emotions like this are normal, and allowed all to take a breather so she could process her emotions. Several months later, my client was optimistic and she and her husband arrived at a settlement that made sense for them and their family.

More recently, at the very end of another Collaborative divorce, one of the clients told us attorneys how momentous that day was, when she and her husband signed the final divorce papers. She told me and her lawyer that the day truly represented the death of the dream. She then thanked us both for helping her to that bittersweet point in manner that honored her, her husband, and their son.

As these clients noted, a divorce is the end of a dream, and it in many ways it can feel like a death. The fact that half of all first-time marriages end in divorce does not change the depth and profoundness of this transition. Most all divorces involve a very real grieving process.

Psychologist Elisabeth Kubler-Ross is perhaps the pre-eminent researcher on grief and grieving. In her research, she identified five stages of grieving. Those stages are: (1) Denial (2) Anger (3) Bargaining (4) Depression and (5) Acceptance. Most grieving people go through most or all of these stages. Not everyone goes through all stages, some spend more time in some stages, and people often repeat stages or are in more than one stage at a time. Add to that the anxiety and stress in a divorce caused by fears about the future.

These stages of grief, as well as fear, are normal in divorce. No matter how overwhelming it may feel in the moment, just because you are afraid or feel anger or depression today does not mean you will feel that way tomorrow. And, it is possible to go through all the emotions without even realizing that one is are grieving, even if that is actually what is occurring. As distant as it may seem, there are and will be solutions.

Adding to the dynamics is that, in a divorce, both spouses will be going through their individual grieving processes at their own separate paces, and have their own fears. It is therefore possible that one spouse has accepted the divorce while the other is in denial. Or that one spouse is in an anger stage while the other is in a depression stage. These emotions are nearly universal.

Because of the strong emotions that grieving people experience, divorcing people have better and worse days. If you are feeling anger, is this perhaps a bad day? Anger is one of the normal stages of grief. If your anger (for example) is part of a bigger process that you are passing through, does it make sense to make important life-long decisions based on your momentary anger?

While both spouses may not be ready to discuss a divorce settlement until they have processed some of their emotions, the fact that you or your spouse may be experiencing very strong emotions does not mean that you will be unable to reach an agreement in the future. It only means that you are going through a normal grieving process. A process such as Collaborative divorce, that takes account of these normal emotions and pacing differences, can be particularly well-equipped to allow you and your spouse the time to process the normal emotions that people experience in the grief process. The divorce settlement can proceed efficiently once the emotions have been processed to the point where they are not significantly in the way.

My client who couldn't sit through the first joint session was in an anger stage of the grieving process. By giving her a safe space and time to process her emotions, she was able to move through that phase to a better place, where she could see her future. The result was a divorced couple where both parents were really able to co-parent well, and where her husband could show financial generosity towards her and their children. The support she received in her Collaborative divorce allowed her the time and opportunity to safely process her emotions, allowing for a better future for her, her ex-husband, and their children.

Different goals and skill sets of collaborative divorce lawyers

2008-02-05T21:48:00.000-08:00

I had my first Collaborative Law training in 2003, and my first collaborative case a few years after that. Like most Collaborative Law practitioners, I have completed many more trainings to enhance my skills. The dozens of Collaborative divorce cases I have since handled have provided additional experience and training.

I decided to get Collaborative Law training even though I was a highly skilled divorce lawyer and successfully settled probably more than 95% of my cases. However, my earlier legal education and years of experience did not provide me with either an understanding of Collaborative law, or the skills necessary to practice in the field of Collaborative divorce. The approach and skill set necessary to understand and practice Collaborative Law is that different.

As a lawyer whose full-time career now focuses exclusively on non-adversarial dispute resolution (primarily Collaborative divorce), it is often interesting to hear attorneys without training and experience in Collaborative Law try to describe its basics. Many, probably most, lack more than a superficial understanding of the Collaborative process. While they may not have sought out the necessary education to get a good understanding of Collaborative Law, it also appears that Collaborative divorce practitioners can do better at educating our colleagues.

One of the misunderstandings stems from an overtly different measure of success in Collaborative divorce cases. That different measure of success requires a different approach. In an adversarial representation, the measure of success is to get as much as possible for one's own client as ethical boundaries will allow. However, in a Collaborative divorce, the measure of success is achieving a resolution that is durable (or at least as durable as the circumstances allow).

Achieving a durable resolution instead of a temporary cease-fire requires that both parties not only accept the settlement at the time it is made, but also continue to accept the settlement long thereafter. Achieving that decree of durability requires a different way of negotiating. Those skills come only after substantial specialized training and experience. And those skills can only be effectively applied within a process that is designed for them.

A durable resolution is in everyone's best interest because it reduces the likelihood for the need for future legal services and leaves parties better equipped for their futures. To achieve the degree of ownership necessary for a truly durable and long-term solution, everyone's priorities and goals need to be openly yet safely be considered and discussed together.

Because threats and coercion are not conducive to an open and safe discussion and consideration of the issues (even when not overt), a Collaborative divorce lawyer will not make arguments for you in the traditional manner while advocating for you. The advocacy looks very different, and often consists of asking important questions, educating you and your spouse, and facilitating a difficult conversation, rather than making arguments or telling you what you should do. Instead of attempting to make arguments to “win” at the expense of one party, the lawyers help both parties identify and address their most important priorities and goals, and help them fashion an outcome that is in alignment with those priorities and goals. Unlike the adversarial method of negotiation, which can easily leave one or both parties with resentments that cause agreements to unravel, a durable agreement achieved through the Collaborative divorce process does not contain the seeds of its own undoing.

Collaborative Law does not sidestep known issues or disputes. When issues and disputes are not addressed, they also are generally not resolved, which undercuts the durability of the agreement. Hence, a key skill of Collaborative Law practitioners is to identify potential disputes and issues, and raise them in a way so they can be productively addressed. To work effectively in this model, lawyers need to learn how to deploy interventions that allow the parties to productively discuss the issues that cause conflict.

Attorneys seeking to practice Collaborative Law therefore need to learn the necessary protocols and skills to effectively participate in the Collaborative Law process, and productively facilitate difficult conversations. The required skills are in addition to solid skills and knowledge of substantive and procedural law; similarly, the additional skills do not replace skills and knowledge of substantive and procedural law. Both are required for competence.

At a minimum, attorneys should have specialized training in the Collaborative
process and facilitative mediation techniques. While basic training is essential, new Collaborative lawyers also need experience and advanced training to become proficient. The skill level required to competently practice Collaborative Law is high, and differs significantly from what has traditionally been taught in law schools or can be acquired through conventional practice.

Financial Considerations

2008-01-27T16:30:00.000-08:00

Practically every divorce includes financial considerations.

All couples own property and most have debts. Property and debt needs to be divided.

When there are children, they need to be supported, normally with child support.

Spousal maintenance (alimony) may be a tool that can be used to provide for a former spouse.

There are also the costs of the professionals involved, which may include lawyers, financial analysts and advisors, accountants, coaches, etc.

Simultaneously all divorcing couples face the reality that it costs more to maintain two households than it costs to maintain one.

Financial decisions are among the most important decisions in a divorce. Yet, because divorce is unpleasant, many people want to make decisions quickly. When it comes to financial decisions, quick decisions may not be the best ones, particularly if made when under stress as in a divorce. Taking time to make the best decision is time well spent, and will pay off in the end.

A fundamental financial question in any divorce is whether both parties will be able to make ends meet. Careful budgeting, as unpleasant as that exercise may seem, proves to be a useful tool to ensure that needs can be met. It can also significantly reduce anxiety. The budget will show whether you earn sufficient income to cover expenses. Regardless of the answer, budgeting provides information with which to make decisions.

Financial decisions in divorce can have significant tax consequences, and some cases present the opportunity for tax planning. Some of the tax rules are very complex. For example, many people know that alimony payments are ordinarily tax-deductible to the payor and taxable to the recipient. However, that is so only if certain rules are followed. There are many tax considerations in a divorce. It is best to consult with a tax professional for your particular situation. If your collaborative divorce uses a qualified neutral financial specialist (many do), then s/he will alert you to tax issues to bring up with your CPA or tax attorney.

There is no formula for property division. While Washington is a community property state, the rules relating to community property are more applicable at death than at divorce. Unlike many other community property states, in a divorce, separate property need not be respected in Washington. And, property is often not divided 50-50 between spouses.

There is also no formula or convention related to the amount and duration of spousal maintenance (alimony). There are factors that make the amount and duration of spousal maintenance unique for the circumstances of each case.

While Washington uses child support worksheets to arrive at the baseline "presumed" child support transfer amount, not all expenses are included in that amount. Moreover, the majority of cases have "deviations" in child support based on the particular factors of the case. The worksheets are truly only the first step of a multi-step process.

It is best to get good professional financial advice as part of your divorce. If you choose a collaborative divorce, be sure that you have a neutral financial specialist on your team, who can provide cost-effective financial analysis.

Divorce Tip of the Month - Counseling

2007-12-22T22:07:00.000-08:00

The current "Divorce Tip of the Month" on the www.mark-weiss.com home page is to consider individual counseling to assist you through your transition. The end of a relationship and a divorce normally includes experiencing a wide array of emotions, which can include grief, anger, relief, pain, confusion, gratification-seeking, indignation, depression, anxiety, happiness, hopelessness, loss, neediness, frustration, attention-getting, withdrawal, loneliness, lifelessness, negativity, and more. If you are experiencing some or all of these emotions, then congratulations -- it means you are normal. Even though almost half of all marriages in the U.S. end in divorce, studies have shown that divorce can also be one of the most stressful transitions that most people will ever experience.

Divorce is one of those times in life when professional counseling is a very wise investment, because of the intensity and wide range of emotions. Usually, lots has happened that led to this point, and the guidance that a good mental health counselor can provide includes helping you make sense of the emotions you are experiencing, processing and releasing the intense emotions, and becoming centered again. Good divorce counseling can include helping you achieve clarity and hope by helping you process your emotions faster without staying stuck.

Divorce counseling is different from collaborative divorce coaching. Collaborative divorce coaches are trained in and focused on assisting the collaborative divorce process. Coaching is mostly limited to identifying communications patterns, skill-building for the collaborative divorce process, providing insights so the team can better facilitate reaching agreement, and some other narrow tasks during the collaborative process. Unlike a counselor, there is no privilege or confidentiality between coach and other team members; in fact, a coach must provide information to the other team members for the coach to provide full value.

The work you would do with your own therapist, with whom you would have confidentiality to the maximum extent allowed by law, will also differ from the work you do with your coach. Most people who have counseling during their divorce feel that it helps them greatly.

A Year of Change

2007-12-15T11:16:00.001-08:00

Welcome to my blog. This is my very first post to a blog anywhere. As the first post, I thought it might be best to give some introduction to who I am. So, this post is a bit more about me than I expect in future posts. A post on this last year, when I experienced great change in my life, is a way I can share a little.

As I reflect on it, the year 2007 has perhaps been the most extraordinary year in my two decades as an attorney. This year was one of significant professional change and growth. I concluded my career as a litigator, and changed my practice to a full-time alternative dispute resolution (ADR) professional, emphasizing collaborative divorce and mediation.

While I was a litigator, I always worked hard to settle cases when possible. Despite my efforts, I always had maybe a trial or two per year, plus one to three dozen motions on substantive and procedural matters every year, and occasional other court proceedings. The clients always got a result, and almost always appeared reasonably happy, or sometimes just accepting, with what they got. But the outcome also came at a high financial and emotional cost and almost always left the client with extra "baggage." That baggage was usually somewhat detrimental to the client's future relationships, and often tended to leave both parties somewhat "stuck" in life.

Over two years ago, then trained in collaborative law and mediation and exposed to the taste of my first collaborative cases, I made the decision to stop litigating. However, it took time to wind down my remaining litigation cases. In January 2007, I concluded what I expect will have been the last trial of my career. It is hard to believe that was nearly a year ago.

I expected that when my litigation practice ended, my professional life would be richer and happier. That has indeed been the case. But there have been many surprises. For example, in many ways, my days are much busier.

Perhaps the biggest surprise for me is how much more skill is required to handle a collaborative divorce well. While I do not believe I was ever a "Rambo" lawyer (some may think otherwise), I was effective as a settlement-oriented divorce lawyer who occasionally went to trial. Conventional divorce lawyering, which is litigation-based, involved knowledge (law, financial and business concepts, how things worked, etc.), procedural prowess, tactical thinking, creativity (within tight parameters), writing skill, and advising clients. As a conventional lawyer, I tried to get my clients as much as possible (money, parenting time, etc.) within bounds.

Collaborative law still requires many of those skills, but deployed in a very different way, plus a surprising amount of additional insights and skills. For me, it was (is) not an easy path from intellectually understanding how my client's interests would be best served with a durable resolution, to actually getting the depth of what a durable resolution means and then developing and integrating the skills to make that available for clients who wished to go there. I am fortunate to have learned this year from extraordinary teachers (some in person, some in books, some in both), including Ken Cloke, Bill Eddy, Erica Ariel Fox, Chip Rose, Pauline Tesler, Stu Webb, and others. I will probably be learning these lessons the rest of my life.

It has been an extraordinary year as I have seen how it is possible to assist families transition into their new future based on what is most important to them and not only preserving, but enhancing, their relationships. I suspect that not many lawyers think about actually enhancing the relationship between a divorcing husband and wife, or in a post-divorce dispute, but it is possible, and I have seen it repeatedly this last year. With the right team, a collaborative divorce approach makes that available to couples in a fully-informed and supported environment.

The year is also a bit of a blur, as I shoe-horned too many tasks into too little time. Some events that stand out include chairing the annual CLE of the Washington AAML, co-chairing a WSBA CLE on ADR in Family Law, and training collaborative law attorneys and other professionals. I seem to have taken on many tasks as Trustee of the King County Bar Association, and Board Member of King County Collaborative Law, and remember spending time co-authoring a few articles and an amicus curiae brief for the WSBA Family Law Section, and trainings in Seattle, Toronto and San Diego. Was that this last year? Yikes -- I guess there is a reason it's a bit of a blur!

2007 has been a year of change. In mediations and collaborative divorce cases, I try to help clients look forward. In this post, as the gander instead of the goose, looking towards 2008, I welcome my old and new friends, my former and current clients, and my future friends and clients, to join me in another year of this adventure called life and towards peace.