I don't have a complete solution, but I've been there.
You should work with the other lawyer, and any other team members involved,
on what exactly to put in the minutes about all this, before they are sent
to the clients. It sounds like both parties are worried about leverage the
other party might hold over them that would illegitimately affect the terms,
or even the existence, of a final agreement. And they, and the team, had not
fully known the extent of each other's worry and distrust. That is very
important to note in the minutes and for everyone to acknowledge. It sounds
like they are both very right to be worried about this "leverage" issue.
Just to reiterate the general "textbook" approach to the substance of these
issues, although it may not be precisely right for this case:
* Collaboration agreements generally say that no one will take unilateral,
permanent action, such as relocating the children.
* Collaborators agree on interim agreements when needed at the beginning or
in the middle of the case, to ensure that each party and the children are
able to live stably for the time being, and that their current needs do not
hamper their power and self-determination to negotiate a sustainable
agreement.
* People sometimes agree to bifurcate or "piecemeal" agreements, but it is
more common to settle one topic at a time but only tentatively, recognizing
that parts of other topics may legitimately be linked, and that the
agreement is not final until it is complete.
* We respect feelings and try to address them, and try to flag them so as
not to irritate them unnecessarily as we go about our business, but we don't
let them completely derail the process.
John Crouch
Crouch & Crouch, PLC
2111 Wilson Blvd., Suite 950
Arlington, Virginia 22201
703-528-6700
Fax: 703-522-9107
john@xxxxxxxxxxxxxxxxxxx
www.divorceandestateplanning.com
Fellow, International Academy of Matrimonial Lawyers
and International Academy of Collaborative Professionals
From: Andrea Hirshman <hirshwoman@xxxxxxx>
Reply-To: <CollabLaw@xxxxxxxxxxxxxxx>
Date: Wednesday, May 30, 2012 2:43 PM
To: <CollabLaw@xxxxxxxxxxxxxxx>
Subject: [CollabLaw] Process Snag
Dear Colleagues,
I¹m looking for some assistance in how to handle a situation that feels
difficult to me but seems less so to my collaborative counterpart. Husband
and Wife, UK citizens, are trying to work out a parenting plan that will
provide meaningful relationship between hands on dad and two daughters in
spite of Mother¹s relocation to UK. Dad has accepted that Mother is
miserable here and does not want her to feel like prisoner and therefore is
agreeable to her relocating. His job has a London satellite office which he
can work out of one week per month however, his employer says that
relocating his job there full time is not an option. Parents are confident
that they can work out some parenting plan that will meet everyone¹s needs.
However, Father will not agree to the relocation until the financials are
worked out because he wants to know that he will be able to financially
afford the parenting plan in place. For example, if he has to fly to the UK
once a month, he needs to know that he will have sufficient money to support
that plan. Also, he wants to have a flat in the UK so that the girls feel
like they have a home. He feels stability would be compromised if they were
coming to a hotel room. Mother would like to put a parenting plan in
place, sign it, and then take off even if the financial matters are not yet
settled with her promise that she will continue to negotiate the financial
terms. Father has lost trust in the Mother for various reasons and will not
agree to the relocation until a written agreement is in place. When this
became clear, the Wife¹s attorney in agreement with her client¹s claims,
told Husband that she saw his use of the Mother¹s inability to relocate
without his permission to leverage the situation to get all the financial
agreements that he wanted. The Husband, who remains cool as a cucumber,
asked his wife¹s attorney what she meant and she reiterated. He explained
that his UK collaborative attorney told him that without a written
agreement, if he agreed to his wife¹s relocation, she could open the whole
matter up in the UK courts. The case is somewhat complicated by the fact
that right before entering collaborative law, the Wife started an action in
the UK courts regarding the financials of the marriage in hopes that a
decision regarding the home they¹ve built there would be made in her favor.
The husband filed in NY immediately after and moved in the UK for dismissal
for lack of jurisdiction. Both cases are on hold.
At the end of the meeting, my client and I debriefed and he was furious at
the other attorney felt attacked and felt there was no need for him to
feel that from more than his wife. After my debrief with my client, the
other attorney and I debriefed and I shared that my client felt attack and
was very upset. I shared some of what he said the other attorney felt as if
I was just saying it to humiliate her turn the screw. I apologized and
said that I was sharing in the hope that we could discuss how to address the
situation. We discussed the substance a bit more to better understand where
she was coming from and she didn¹t realize that my client was concerned that
the Wife would relocate and then try to use the UK courts for the financial
relief she seeks. Wife¹s Attorney offered that the Agreement could include
a provision that NY law would be applied. I asked whether she thought some
sort of acknowledgment of her misunderstanding, or an apology would be in
order to which she replied that since sh e was writing the minutes, she
would draft them in a way that will address the situation - she¹ll include
her new understanding in the minutes. I¹ve read the draft minutes and feel
they do not adequately address the situation.
After receiving the draft minutes, my client wrote me an email explaining
how he felt and reflecting on the session. I wrote the Wife¹s attorney
wondering whether we could talk a bit more about the dynamic between her and
my client, informing her of my client¹s email, and suggested sharing it with
her so we could figure out together how to use his reflections to make the
process even stronger. The Wife¹s attorney responded that she is feeling
somewhat managed by me and feels that she and my client should work it out
themselves at the next session. I¹m feeling stifled. I feel like an
apolog y is in order to restore my client¹s trust in the process and in the
Wife¹s attorney. My hope is that the other attorney would in the beginning
explain her misunderstanding and apologize for lashing out. Clearly, the
other attorney is opposed to the idea of making an apology of sort. I¹m not
sure why? Is it that it feels humiliating to her (and my goal is not to
humiliate her I don¹t view apologizing for a mistake as reason for
humiliation I view it as strength of character)Or is it that she feels an
apology would not be helpful? Is it best to remain silent and let the chips
fall where they fall at the next meeting if my client is brave enough to
say something? Where does that leave me with my client? Do I tell my
client to email the Wife¹s attorney directly? Will he wonder why I am not
having the conversation with the other attorney? Do I tell him that I tried
and that the other attorney did not want to discuss it with anyone except
him? Does that look like I¹m not behind him? And so on, and so on. Any
insights would be so so appreciated.
Thank you.
Collaboratively yours,
Andrea
Andrea Hirshman, Esq.
Law & Mediation Offices of Andrea Hirshman
Main Office & Mailing Address:
30 Ocean Parkway Suite 3F
Brooklyn, N.Y. 11218
917-969-6416
Familymediationmatters.com
Andrea.hirshman@xxxxxxxxx
Manhattan Satellite Office for Appointments
225 Broadway Suite 2510
New York, NY 10007
