Family Law and the Three Conversations: Co-Parenting, Property Division, and Cash Flow

If you are an attorney and have been regularly practicing traditional family law, you must consider that the knowledge you have gained about family law and district court procedure is, surprisingly, not central to the collaborative process.

The Role of the Law in the Collaborative Process

The role that the substantive law of domestic relations plays in the collaborative process is diminished and is far different from the role it plays in traditional domestic dispute resolution. In traditional practice attorneys are hired because of their specialized knowledge of the law and because of their training and ability to access the court system. From the moment the client walks in the attorney’s door, the attorney assesses the client’s “case” and renders advice based on his or her specialized knowledge of the law and procedure. In this traditional practice, the attorney assesses the likely outcome of the “case”, and explains to the client what is a fair and reasonable settlement under the “law.” Thus, many experienced family-law attorneys tell their clients up front that they should not expect to achieve an outcome that the client believes is fair and reasonable.

In the collaborative process, the assumption is that only the parties can determine the optimal outcome for their separation and divorce. They must talk about and decide how they will choose to co-parent from two households, how they will divide the property that has been accumulated during the years of marriage, and how they will meet the cash flow needs of the two households once they have separated. The only possible resolution in a collaborative case is one in which both parties are satisfied that these matters have been resolved in a way that is fair and reasonable to each of them. Otherwise, one or the other will refuse to sign the agreement, since going to court, and the threat of going to court, are not part of the process. The conversations may be difficult, and it may seem at times that the parties are worlds apart, but in the collaborative process resolution comes only when both parties find an agreement acceptable to them.

Now, to be sure, the law can be helpful information to the parties in having the conversations about co-parenting, property division, and cash flow, and in determining what they believe to be fair and reasonable. After all, the law is an expression of the community’s standard for how each of the parties should be treated. It is important information. When questions about the law arise in four-way conferences, it is helpful to explain not only the possible legal outcomes for a particular matter, but also the rationale for and principles behind the law. In this way, the participants can test the values incorporated into the law against their own values.

Focusing too much on the law tends to move people toward taking positions rather than into conversations around needs and interests. For instance, when a traditional attorney runs the facts through his or her mental computer and tells a client that she is entitled to $x amount of alimony under the law, the conversation with the client’s spouse around her needs and interests has been passed over and the parties are on their way to haggling over the amount of alimony based on what a judge might do.

Conversations about the law also tend to gravitate toward fault and entitlement and the making of moral judgments. In other words, a conversation about alimony (as opposed to cash flow needs) will often lead to judgments about “marital misconduct”. While this is necessary and important in court, it is detrimental to conflict resolution in the collaborative process. Making judgments and finding fault with the other spouse tend to reduce the willingness of the spouse to consider options that meet the fault-finder’s needs and interests. In other words, people get defensive and tend to verbally counter-attack. Conversations around who’s “right” and who’s “wrong” are not very effective in the collaborative process.

Additionally, a couple may wish to consider options and strategies that would not typically be considered in a judicial resolution of the case. Perhaps, for instance, after they have fully explored their respective needs and interests, a couple might determine that the best strategy for them is to inequitably divide the estate in exchange for eliminating alimony, despite an absolute right to alimony under the law. Thus, a couple could decide against equitable distribution and against alimony. In any event, the law does not impose an outcome as it does in traditional cases. In order to achieve an agreement in the collaborative process, regardless of what the law provides, both parties must find the agreement acceptable, and the law is simply information for the couple to consider as they reach an agreement.

Thinking Like Lawyers

The law’s diminished role in the collaborative process creates a difficult challenge for lawyers trained in the adversarial system. As lawyers, we have been trained, in the words of the fictitious law professor in the movie The Paper Chase, “to think like lawyers.” We have developed a pattern in the way we approach and analyze disputes. We elicit information, identify the legal issues raised by the information, investigate and gather facts pertinent to the legal issues identified, and assess the likely outcome in court based on legal precedent. As one experienced attorney explained: “As the attorney, it’s my job to marshal the facts--what are the assets, what are the expenses and incomes, who’s been good, who’s been bad--put all these things in my mental computer, and determine what I think should be the outcome in court.” When we “think like lawyers” in negotiating settlements, then, we seek to achieve an agreement that is at least as good as our conclusion about the likely outcome in court.

In the collaborative process, difficulties arise when we attorneys are unable to adjust the way we think about and approach the conflict. When an attorney is intent on eliciting the material facts, analyzing whose at fault, and determining likely outcomes in court, then an attorney will not be listening to understand the client’s underlying needs and interests, determining the clients priorities, coaching in interest-based negotiation, and working to create a safe container for the conversations the couple must have. After three years of law school and more years in practice, the pattern of “thinking like a lawyer” can be difficult to alter. The difficulty of moving away from the comfort of long years of “thinking like a lawyer” can be a block for many attorneys who would wish to skillfully practice collaborative law.

Thinking Like Conflict Resolvers

Effective collaborative attorneys work to facilitate the ability of parties in conflict to resolve their own disputes through ongoing dialogue. Their primary focus is on understanding what each of the parties is suggesting that they need and what underlying interests they are attempting to express. Their primary effort is to help the parties effectively express their interests, understand the other party’s interests, and develop strategies and options that address both parties concerns. Perhaps the biggest challenge for attorneys is to move out of the legal realm of who’s right and who’s wrong, or who’s good and who’s bad, or who’s deserving and who’s not entitled, and focus on the legitimate needs and interests each party carries into the negotiations around the dissolution of a marriage.

Changing the vocabulary can be a helpful first step. The standard legal terms are laden with moral judgment. Who should have custody (who’s the better parent)? Is alimony appropriate (has there been marital misconduct)? What about child support (does one parent have an obligation)? It can be helpful to stay away from legal terms and concepts and focus instead on the three conversations: co-parenting, property division, and cash flow. When the collaborative process is framed as a safe way to have these three conversations, and the parties are consistently coached in interest-based negotiation, then issues of legal entitlements, right and wrong, fault and innocence will tend to take a back seat.

Beyond changing the vocabulary, the collaborative attorney’s approach to conflict resolution is informed by the work that family mediators have been doing for the last three decades. (In this context, the reference is to family mediators who resolve disagreements between couples that do not come to mediation with attorneys and that generally stay in the same room and do not caucus into separate locations.) These mediators have developed skills in guiding conversations toward interest-based negotiations and in monitoring difficult conversations to effectively handle the emotions and negative use of language by the parties. These are skills discussed in other parts of the training, and are skills that collaborative attorneys are constantly seeking to improve.

Explaining the Law to Clients

There does come a time, in many collaborative cases, when it becomes important to “think like a lawyer,” to run the facts through the attorney’s mental computer, and to give the client some idea as to whether the particular options and strategies he or she is considering as a settlement are similar to or different from the resolution that would likely happen in court. Timing, however, is important. And each case is different. Some clients need and demand an understanding of the possible legal outcomes early in the process. Perhaps even in the initial consult. With these clients it’s critical to emphasize that under the interest-based negotiation model, the legal outcomes present one option among many. And that before we get to options, we will be fully exploring needs and interests. It will be more effective for them in the negotiations to fully express what they are needing and to show that they understand what their spouse is needing, than to get into fault-based conversations. Obviously, if the separation is causing your client a great deal of pain, then it may take some time and a gentle approach to help them get to that point.

Other clients will want to know, after numerous collaborative law sessions, what you, as the attorney, think about the options being considered. These clients often want some assurance that they are not “giving away the farm” as they assess possible settlement scenarios. In this case, it is important to explain the concept of BATNA (Best Alternative to a Negotiated Agreement) and provide an idea of what the client’s best alternative is. In most cases, the best alternative is going to court, so some prediction of what might happen in court is necessary and helpful. Of course, the alternative must be presented realistically, incorporating not only the uncertainty of what any given judge might do on any given day, but also the intangible, emotional costs of going to court and the potential damage to a cooperative working relationship in the future.

In other cases, the collaborative attorney may be concerned that the client is “giving away the farm.” In that instance as well, it is important to discuss with the client, either in or out of a four-way conference, the attorney’s concern that the client have an agreement that will be satisfactory to the client in the long run, and the concept of the client’s BATNA. If the outcome in court would likely be significantly better than the proposed settlement agreement, then the client can be informed of the attorney’s opinion and make decisions accordingly. Ultimately, however, it is up to the client to determine the terms of the settlement and regardless of what the law would provide.

The timing and the way in which the collaborative attorney handles questions about the law will have an impact on the collaborative process. It is not helpful for the attorney for one of the spouses to come into the collaborative process with a proposed separation and property settlement agreement in hand. In Raleigh it is frequently the practice in non-collaborative cases to deliver a proposed separation and property settlement agreement to the other spouse in advance of any careful discussion between the spouses about what should go into the agreement. The agreement is typically tilted in favor of the initiating spouse, in anticipation that it will favorably position any future negotiations. Delivering such a proposal, even if firmly grounded in the law, will quickly lead to the parties’ taking positions and hard feelings. Moving the conversation to needs and interests will be difficult, and the likelihood of an impasse will increase.

Summary

Collaborative attorneys see their role less as legal advisors and more as negotiation coaches. As a negotiation coach, we want our clients to understand and effectively assert their interests, before the parties jointly begin to develop options and strategies for addressing their interests. Thus, in the collaborative process, it is typically more effective to wait to talk with the client about likely outcomes in court until the parties are assessing options and strategies, after there has been thorough discussion between the spouses about their respective needs and interests. This first discussion of “the law” may well be after several collaborative sessions have taken place, or perhaps not at all.