Funny you should ask. Kevin's article was the first posting on the
brand new public blog our county organization launched a few days ago -
http://kingcountycollab.org/collaborative-blog/
Mike Fancher
*MICHAEL V. FANCHER*
Seattle Divorce Services
2317 NW Market St.
Seattle, WA 98107
206-784-3049
Mike@xxxxxxxxxxxxxxxxxxxxxxxxxx
On 5/24/2012 7:02 AM, Amy Martell wrote:
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>
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Amy H. Martell, mediator and collaborative attorney
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On Wed, May 23, 2012 at 3:46 PM, kscudderlaw <kevin@xxxxxxxxxxxxxx <mailto: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.
