Most clients don’t know what to expect when they consult a divorce attorney. Although often confused and emotional, I believe they do know what they want – to feel safe and tended. The Collaborative Law process may seem mysterious but experienced practitioners know it is simply another way to advocate for clients and their goals.
Merriam-Webster defines “Advocate” as one who “pleads the cause of another” but also as one who “supports or promotes the interests of another”.[1]
Hypothetical clients Adele and Barbara, who have three children, help to illustrate what advocacy looks like in a collaborative process.
In an initial consultation with Adele, the lawyer’s advocacy begins by noting interests revealed in Adele’s desire to avoid court and her stated positions on the issues. At this stage, her positions can be seen as strategies for resolution which may, or may not be, effective once a fuller picture of the situation is revealed by both parties. At this initial meeting, the attorney might ask about the hopes and dreams Adele has for herself and her family 5 years down the road. The attorney will pay attention to information on Adele’s motivations and how she responds when she judges herself or feels judged by Barbara. Paying attention to all of these things will help the attorney understand how best to support Adele throughout the process.
At this initial meeting, Adele learned that the Collaborative process involves a multi-disciplinary team approach to restructuring family relationships. Her attorney explained that the team, including the clients, would work together to support her interests. And, since her interests include reaching agreement, the team would also show consideration for Barbara’s interests because that is how agreements happen.
Adele, a conflict avoider, who generally takes an “all you need is love” approach to life was attracted to the collaborative process because she felt insecure when faced with Barbara’s typical dispute resolution style – laying out facts and data, presenting a bottom line and then continuing to press logic and data until Adele became weary and gave in. Barbara had always handled their finances. Adele put a lot of energy into raising the kids and even though she wants what she is “entitled to” financially, she doesn’t want to harm the children in the process. She doesn’t want to destroy her relationship with Barbara either.
After consulting with another trained Collaborative attorney, Barbara also selected the collaborative process. She feared that Adele would be overwhelmed by facts and figures leaving her unable to make a decision. She believed a traditional legal process would allow Adele to avoid the conflict until a judge had to decide it. That would not meet Barbara’s needs for autonomy, confidentiality, and efficiency. She felt the Collaborative process provided the support Adele would need to feel confident making decisions.
Even though she wasn’t thrilled at the expense of divorce in any process, Barbara’s need for control was met by having a say in selection of a Certified Divorce Financial Planner (financial neutral) and a coach to assist with communication and parenting plan development. Barbara also liked the idea that she would work with Adele to provide needed information to the financial neutral which would help reduce costs.
Additionally, as the parent who had provided more financial support and less parenting time, having a marriage and family therapist on the team as a neutral coach appealed to Barbara. Some of their most heated arguments revolved around the needs of the kids but Barbara knew they both wanted the best for them and she did not want to be pushed into accepting second class parent status.
After working with the financial neutral to identify assets/liabilities and develop post-divorce budgets the clients were ready to meet for initial discussion of financial issues. At the team meeting, as they examined the budgets, Barbara began commenting on Adele’s use of alcohol. Their collaborative attorneys skillfully addressed the concern. Adele’s attorney brought the issue into light by neutrally restating the concern Barbara had voiced. Barbara felt heard but Adele did not feel attacked so she was able to stay present and remain in the discussion.
The attorneys then queried Barbara about immediate safety concerns for the children. Adele was given an opportunity to voice her perspective. Barbara, being persuaded that there was no immediate danger, agreed to a short time frame for the clients’ first meeting with the coach. In that meeting, the perspectives of both parties would be more thoroughly explored and then the professional team would facilitate a joint session discussion to address temporary parenting issues as well as further steps.
At their subsequent joint session, the coach began with a general discussion of parenting, allowing each client to express her hopes for the children’s future. As the discussion progressed, Barbara revealed concerns voiced by the children about Adele’s drinking. Adele said she enjoyed wine because, as an artist, it helped with her creative process but she denied that her drinking impacted the children. Barbara described the children finding Adele passed out in her studio. Adele mumbled that she occasionally “took a nap” which the coach picked up. The coach then steered the clients through a discussion of the children’s weekly routine and each parents’ role in it. Barbara stated that she no longer agreed with the 50/50 parenting arrangement they had been discussing and felt that the children should reside primarily with her once they separated, at least until Adele got help.
Barbara’s attorney floated the idea of an alcohol assessment. Adele’s attorney, could sense his client bristle at that idea and suggested that more information might be needed about the children’s perspective. The attorneys suggested using a child specialist to bring their voice into the process. The coach picked this up and began working with Adele and Barbara around an agreement to get more information using a child specialist.
Adele, relieved to have the focus off an assessment of her but also aware that she did not want to harm her children, agreed. The coach, noting this opening in Adele’s thinking, began to explore whether she had previously considered seeking support to stop drinking. Adele revealed that she had looked into Buddhist recovery groups. The coach, who by this time had built some rapport with Adele, skillfully gained an agreement that she would look into this method of support again.
In collaborative practice, the voice of appropriately aged children can enter the process through use of a child specialist who is a mental health professional experienced in child therapy. The specialist will conduct one or two interviews with the children to bring more information to the parents and the team. Their role is to inform, not to recommend. Through skilled interviews, the children will reveal the impact of their parents’ conflict and separation. The information is carefully presented to the parents in a team meeting or coaching session. Once the information is on the table, it is up to the parents, supported by their attorneys and the coach to decide what to do with it.
This process differs significantly from litigation where a parenting evaluator or GAL is appointed to report recommendations to the judge who will then tell the parents what they must do. In litigation, apart from telling their story to the evaluator and the judge, the parents are removed from the decision making process.
When Barbara and Adele met with the child specialist and the coach, they learned that the children loved them both but had concerns about Adele’s drinking. The oldest, a high school senior, was mostly concerned that her life and her plans would not change as a result of the divorce. Their 14-year-old son was struggling with feelings of responsibility. He was conflicted about hurting Barbara but wanted to spend more time with Adele because she was the familiar parent who had been around the most. At the same time, he was concerned and felt a need to take care of her because she was emotionally distraught and her drinking was escalating. He also felt responsible for his 10-year-old sister and wanted to shield her from the emotional pain of the breakup as much as possible. For her part, the 10-year-old just wanted to be a kid. She didn’t want it to be weird if she had friends sleep over and she wanted both her moms to be happy.
Once this information was presented to Adele and Barbara, they began to see what they each needed to do to support their children through this process. Barbara recognized that just because she wanted to step up and do more parenting, the kids would not necessarily be receptive. She would have to work at building stronger relationships. Adele saw that her drinking was impacting the family. Although still reluctant to commit to total sobriety, she did agree that she would not drink at all while the children were in her care. The attorneys would skillfully draft an agreement with safeguards and steps if Adele failed to keep her promise. The agreement wouldn’t become part of the public divorce record at this point but would be added to the record if Adele violated it, providing an extra incentive for her to stick with it.
Throughout this process, the attorneys have advocated for the interests of the clients. Barbara expressed an interest in safety and stability for the children when she stated her position that they should live primarily with her. Both parents want minimal impact on their children as a result of their separation. Barbara could get a “second opinion” with a litigation attorney or learn in consultation with her collaborative attorney that a court would likely order Adele into an AA style treatment program and make her jump through hoops before she was allowed more parenting time with the kids. Adele is likely to resist because she is a bit of a rebel and she has already rejected the AA approach to sobriety. And, sure, that is her problem – if she loves her kids, she’ll do what it takes. However, that strategy may meet the interest for safety but what about stability?
Despite her drinking, Adele has been the most present and accessible parent. The children want what is familiar. Moreover, the level of conflict that would be introduced in a litigation setting will impact the parents and the children well into the future. Indeed, the family may not recover. So how can attorneys best advocate for the interests of these clients and their family?
With gentle and skilled support from the Collaborative team, Adele can be brought to an agreement on terms that she influences and is more willing to respect, with the interests of safety, stability and least impact on the kids all met. That is how Collaborative practitioners advocate.
[1] “Advocate.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 6 Mar. 2016.