I recently participated in a Collaborative Six-Way Meeting, which comprised both spouses, their lawyers, a divorce coach and a financial specialist. During this meeting, my collaborative counterpart was very aggressive. While that tactic can work in a case being negotiated through the court system, an overly aggressive attorney in a collaborative divorce is less effective. My collaborative colleague is a well-trained collaborative attorney, and well intentioned. However, she still does a lot of divorce litigation, and that affects her collaborative practice.
In divorce litigation (court based), being aggressive can be very effective because of where the power lies. In litigation the power rests primarily with the Judge, secondarily with the attorneys, to the extent they can persuade the Judge or intimidate or outfox the other side. The clients have virtually no power. Indeed, during a trial the clients can only speak during the limited period of time that it is their turn to testify as a witness.
In a collaborative case, there is no Judge, and the power rests primarily with the spouses, and secondarily with the collaborative attorneys and other professionals.
So here is what happened in my recent collaborative settlement conference. The other collaborative attorney, when she and her client were frustrated by a position my client expressed passionately, reacted by either being critical of him or engaging in forceful, hardline advocacy for her client. This is not necessarily a bad thing in a collaborative case; the key in a collaborative case is to know when, and under what circumstances, to engage in such forceful advocacy. This requires keen listening and sensitivity, which are skills that many divorce litigation attorneys lack.
An example of a critical comment made by my counterpart was – when my client dug in his heels regarding an issue – she said to him: “So it’s your way or the highway?” This made my client dig in his heels more; he even told my collaborative counterpart to stop acting like a litigator. When my client said this, there was nothing that my counterpart could do about it, short of walking out of the meeting or terminating the collaborative process, neither of which her own client wanted to do. So all she could do was back off. She was totally disempowered.
My counterpart was similarly disempowered when she told my client, “that’s not going to happen,” and when she argued with the neutral financial expert about an issue. By arguing with this neutral expert, my counterpart lost even more creditability with my client, which is not a good thing for her to do in a collaborative case.
People going through divorces have a tremendous need to be listened to. I have observed miraculous things happen in the approximately 15 years I have been handling collaborative divorces, when a collaborative professional demonstrates to a spouse that the professional has heard what the spouse has said and expresses some empathy or compassion about it. This kind of empathic listening is the bedrock of collaborative divorce practice because it is so effective in helping people reach settlement. Empathic listening is just one tactic that would have been more effective at the collaborative negotiating table.
Another approach that my colleague might have tried is to ask questions of my client to elicit from him the underlying need or interest for his position. This enables us to find out what is most important to the client, and what the client’s deep-rooted values are regarding a particular issue. Often, when the client’s underlying need or concern is identified and acknowledged, the client is open to exploring various ways of meeting that need, rather than clinging to his or her stated position.
Another good option for my colleague would have been to begin a brainstorming process with the parties and professionals regarding the issue, in order to explore creative settlement ideas.
All of these collaborative methods are intended keep the client in the driver’s seat. Indeed, in a collaborative divorce, the client has the power.
So, if you’re a client in a collaborative divorce (or thinking of becoming one), you have a lot of power. But, don’t abuse it, because if you do, the collaboration could end, and you could end up in Court, and lose all your power.
© Arnold D. Cribari, 2017