Excellent questions and illustrative picture of the contrast between two
approaches. Is this excerpted from a public blog post? If it is, I would
love to link to it.
cheers - amy
<http://www.wholefamilylaw.com>
*Compassion. Collaboration. Resolution.*
Amy H. Martell, mediator and collaborative attorney
1 Snow Road
Marshfield, MA 02050
T: 781-780-2500 F: 781-780-2501
amy@xxxxxxxxxxxxxxxxxx
www.wholefamilylaw.com
<http://www.wholefamilylaw.com>*Watch the video: "Collaborative Divorce - A
Safe Place"*
<http://video.collaborativepractice.com/video/default.html>
<http://www.facebook.com/wholefamilylawandmediation>
Facebook<http://www.facebook.com/wholefamilylawandmediation>
<http://www.linkedin.com/in/amymartell>
LinkedIn<http://www.linkedin.com/in/amymartell>
<http://www.twitter.com/AmyMartell> Twitter<http://www.twitter.com/AmyMartell>
<http://tungle.me/amymartell> Tungle.me <http://tungle.me/amymartell>
IMPORTANT: The contents of this email and any attachments are confidential.
They are intended for the named recipient(s) only. If you have received
this email by mistake, please notify the sender immediately and do not
disclose the contents to anyone or make copies thereof.
On Wed, May 23, 2012 at 3:46 PM, kscudderlaw <kevin@xxxxxxxxxxxxxx> wrote:
**
If you are getting a divorce, and assuming that there are issues in the
future that require the two of you to be able to communicate and make joint
decisions, (co-parenting; co-ownership, etc. . . .) which of the following
would you choose:
1. Getting the divorce over as soon as possible and dealing with
communication issues at some point in the future; or,
2. Working during the dissolution process on the issues that are
impeding communication so that, when the dissolution action is
finalized, you are ready and more capable of communicating on
issues requiring joint decisions.
My experience is that option A is detrimental to children of a divorcing
couple and detrimental to the ability of the parties, in the short and long
term, to communicate on issues requiring joint decisions.
Option B, while perhaps more challenging for everyone involved, results in
better results for children and long-term communication between the parties
in the vast majority of cases.
This fact was recently reinforced for me when I completed a
non-collaborative family law case by sitting with my client through a
nine-hour settlement conference. This post sets forth some of my thoughts
as I process all that happened in this case over the ten months of my
involvement.
In this case I represented the husband. When we had our initial
consultation we had a thorough and wonderful talk about options and process
and children and decoupling and hopes and dreams. Off he went with my copy
of Mom's House Dad's House, which he reported to me about via email as he
read it through. His hope was that his spouse would choose a collaborative
divorce.
Not only did his Wife choose not to proceed collaboratively, she hired one
of the downtown Seattle corporate firms.
My client and I did not give up hope that we could generate dialogue that
would lead to a lasting, durable agreement and a healthy co-parenting
relationship. We had a four-way meeting so everyone could meet each other,
we could set interim financial and parenting arrangements, and to explore
the interests of the Wife and Husband so that, as we moved towards
resolution, we could make sure to craft something that reflected what the
parties held as important.
The parents were still living together so they agreed to a relatively
equal residential schedule for their two children.
We agreed to use a collaboratively trained financial neutral to gather
financial information and organize a spreadsheet to assets and liabilities.
We agreed to have a free exchange of information. All we needed to do was
contact the other attorney and ask.
But the big firm was set in its ways. First came a comment from the Wife's
attorney that his view was that the Wife would be the primary residential
parent and would stay in the family residence. Then came a brief set of
interrogatories. Next came a subpoena. When I called the other attorney to
inquire as to the need for these legal devices when we were willing to
provide the information without the need of going to the expense they did,
the only answer I received was that it was done as part of the firm's
regular due diligence.
Since the bank account of the parties remained joint, my client watched as
the Wife's legal bills mounted at a rate that was three times the bills
coming from my office.
Trial was not imminent but we scheduled the settlement conference well in
advance so we could try to get the case resolved and the parties further
along in the divorce process.
Prior to mediation each party submits a letter, spreadsheets, and perhaps
proposed orders. Since the Mediator is not the decision maker, my practice
is to simply set forth the facts and my client's view of how things should
turn out. I certainly do not spend time disparaging the other party. This
is not a trial. Why submit a letter that calls the other party names, says
they are not a good provider, or say they are not a good parent? Doing so
only escalates the animosity between the parties and gets in the way of
what my job is: to get the case settled in the best way I can based on what
my client has told me is important for them.
In terms of height, my submission was about one inch. The Wife's attorney
submitted almost a foot of material at an unimaginable cost.
The Wife's attorney did not feel the same way about their settlement
submission. I was appalled by their eight-page mediation letter to the
point that I stopped reading and set it aside. In an email to my client I
called it a bunch of "crap" and advised my client not to even read it. My
client responded with an upbeat email, saying that he appreciated my
support and that he felt the same way about the letter.
Prior to the mediation I briefly flipped through the foot of documents the
Wife's attorney charged her to put together. I found most of the material
they provided irrelevant given that both sides knew what the assets were
and they were already summarized in the financial neutral's eight page
report.
The Wife's proposed parenting plan was a plan we called the `70's Plan:
every other weekend and an every Wednesday, non-overnight "hamburger
night". Quite different from the plan the nearly equal schedule the parents
had been following for the prior six months.
It was clear to me that the Wife had delegated her authority, her
decision-making, to her attorneys, a choice that I never recommend to
clients as it is the client that has to live with the resolution, not the
attorney. That being the case, why delegate the decision-making to the
attorney?
All of the above being said, the case settled. Before my client signed the
final agreement I talked to him about our initial and subsequent meetings
during which I learned what my client wanted in a final resolution. I had
promised him that prior to settling the case I would check in with him one
last time to make sure that what he agreed to incorporated as many of his
high end goals as possible.
In this instance he said that despite the actions of the Wife and her
attorney, that he was satisfied the agreement would be good for the
children and that the financial resolution was something he could live with.
So we signed the Agreement and left for the day.
Two days later I received a phone call from my client saying that his six
year old daughter had come up to him and told him words to the following
effect:
"Mom says that a big truck is coming to take our stuff away and we have to
live in a small apartment because you have all the money."
Imagine your child saying these words to you. I know I would be greatly
saddened that my daughter was used in such a way and felt so angry.
My client and I talked about the incident and I talked about the fact that
he and his Wife had done no "decoupling" work together. While my client had
been in individual counseling throughout the case the Wife had not. This
meant that the high emotions that each party brought into the process were
not resolved and while they had many years of marriage during which they
learned how to co-exist, they had not worked together to learn how to live
in a two-household family.
I immediately sent an email to the Wife's attorney pointing out the way I
thought we had failed our clients, the need for our clients to do
de-coupling work, and passing an invitation from my client to the Wife to
go into counseling designed to work on what living in two houses would
entail.
The attorney or the Wife passed on the invitation in some form or another
and the Wife declined the request.
My concern is that the children are going to suffer as a result of that
decision. In fact, the odds are that children of divorcing parents that
refuse to communicate about child-related issues will have problems as they
grow up.
What I want to leave you with is the idea that though you are the consumer
of legal services, the client as opposed to the one with the legal
knowledge, you are in charge of the legal process and you should never
delegate your authority to your attorney or to anyone else.
YOU know what is important to you and what you need to have in the final
resolution of your case.
I think that the role of the attorney is to find out what is important to
you and do everything possible to make sure that your agreement reflects
those important elements.
Do not be afraid of asking your attorney what they intend by their
actions. Why do you need to send a subpoena? Doesn't calling my spouse
names and making accusations against him have a chance of working against
me because the letter may hurt his feelings and he will be less likely to
settle? What are you doing that benefits my children?
If your attorney is not able to answer these questions, it may be that you
are looking for a different attorney, one who is interested in what is
important to you and for the children.
