Any dispute resolution process for families in conflict that adopts a problem-solving approach (such as divorce mediation and collaborative divorce), as opposed to an adversarial, competitive approach like litigation, understands that people (especially people who are or were emotionally connected to one another) do not negotiate solely from a place of intellectual rationalism. But the opposite is also not true. That is to say that just because a family is going through a divorce does not necessarily mean they are suddenly completely bereft of any ability to make thoughtful decisions for their own and their family’s future, and have no choice but to offload those life-changing decisions to a third party who does not know them or their family.
Collaborative Divorce knows that the marital history, family dynamics, personalities, and communication styles of divorcing parties all make a difference in how the settlement discussions should go. A previous post on this blog explained in some detail the role of the collaborative divorce coach, but I want to emphasize here that the whole team, including the attorneys, parties, and neutral professionals, should always keep their eye on the ball that these non-tangible factors, which we often label collectively with the term “interests,” must be tended to throughout the collaborative divorce process to maximize the chances of the case staying on track and ending up with a settlement that feels good enough to both parties.
While many experienced collaborative divorce attorneys do a great job seeing and working through interests, some do struggle with keeping the parties’ interests on the table in productive ways. These lawyers seem to fall into one of three basic categories:
1. They Miss It – The first category of attorneys simply miss the ways interests are showing up in the case because they are not trained or hard-wired to notice some of the subtle dynamics at play in the case. As a result, these lawyers end up losing important opportunities to address the parties’ interests in a constructive way. They sometimes feel as though the case is “off” for some reason, but they cannot put their finger on why that is true.
2. They Ignore It – Other attorneys may see how a client’s interests are showing up in the collaborative divorce process, but the attorney may simply be uncomfortable engaging with those sorts of traditionally “non-legal” issues because they feel too touchy-feely or too conflict-laden to the lawyer. As a result, this camp of lawyers tends either to ignore the interests or even actively redirect the parties away from these sorts of issues, frequently with comments like “the divorce is a business deal.”
3. They Make It Worse – A third category of attorneys are the ones who see how interests are in the room, but instead of trying to recognize the interests and work with them in a constructive way to guide the parties toward a mutually acceptable durable agreement, these attorneys end up colluding with their clients around their interests in less healthy ways. These are the lawyers who tend to actively “stir the pot” with their clients. For example, they might affirm the client’s anger about something the other spouse has done during the marriage and encourage the client to use their anger (and the facts that led them to feel angry) as a sort of weapon in the negotiations as would be true in litigation. Cases that include lawyers in this category tend to leave everyone on the team with the feeling that the case is not feeling “collaborative.”
Here in Nashville I am fortunate to work within a collaborative divorce practice group that includes a number of lawyers who really do “get” the collaborative divorce process and work effectively with their clients in noticing and working intentionally with the clients’ interests. But it is worth saying that clients who have bought into the benefits of the collaborative divorce process for them and their family should be wary of this issue and watch for signs of how a prospective attorney might or might not be able to navigate these tricky waters when the rowing gets tough in the negotiations.