I have served as a New Jersey-based professional divorce mediator for 18 years, almost as long as I have been practicing law. Approximately 40% of my current litigation practice consists of family law cases. About 20% of my caseload involves matters in which I serve as a mediator. It is from this dual perspective that I present this article on divorce coaching, client counseling, and mediation as liability-avoidance tools for matrimonial practitioners.
In my experience, matrimonial practice can be a trap for both the wary and the unsuspecting. Clients come to lawyers at a time of deep emotional trouble and financial turmoil. If they are the ones promoting the divorce, clients often seek protection from a spouse they experience as rapacious, unforgiving, embittered, and bent on vengeance. If they are the ones resisting the divorce, clients often seek vindication from a spouse they experience as abandoning, untrustworthy, unloving, and destructive. As lawyer-advocates, once we accept a case we are ethically and also for practical reasons bound to zealously advocate for clients whom it may be difficult or impossible to satisfy. Often we literally can’t give clients what they really want, but that fact doesn’t stop them from asking or us from trying. Unfortunately, at some point in the life of a case, we lawyer-advocates find ourselves getting shot at from both sides. No one is happy. We enter the realm of the “lose-lose” outcome.
Too many of those experiences prodded me to question the fundamentals of my early practice years. From the beginning, I promoted my mediation practice alongside my traditional litigation practice, but the two never seemed to meet. About 10 years into my career, I began experimenting with a model that I use to this day, which liberated me from the shackles of my earlier legal training and experience. The key to this conundrum came from my collaborative work with mental health practitioners, who taught me to look past the client’s own frame of reference. I began to seek things the parties could not see for themselves. I began to change my stand as an advocate, to reframe issues, to reinterpret for clients what was happening to them and what they were creating, whether consciously or not. I also began to advocate for the best interests not only of my clients’ children, but also of my clients themselves.
Here is how it works. A potential client comes into my office and, like Arlo Guthrie’s crazed draft dodger of “Alice’s Restaurant” fame, says (I’m paraphrasing here): “I want to kill, kill, kill . . . .” My practice stance is not to take the client’s word for what (s)he wants. Rather, I spend a great deal of time questioning the client’s stated needs and goals. I ask about previous and current counseling, both joint and individual. I ask about both spouses’ health problems and the children’s as they may relate to issues to be negotiated.
I use the initial meeting to gather as much useful data as possible about the parties, how they get along with one another and the children, collateral relationships that may affect negotiations (parents, siblings, in-laws, step-children, extra-marital relationships), substance abuse issues, violence and intimidation issues, possibilities for reconciliation, and related matters. I also ask the client to tell me, quite apart from the other spouse, his or her future orientation. Where and with whom will you live? Are you satisfied with your career? Are you changing careers? Do you plan to seek schooling or additional training? What financial resources do you have or will you need? What are your plans regarding your children (co-parenting, housing, financial responsibilities)? What additional data needs to be collected? What additional experts need to be consulted? Is the client prepared to cooperate with his/her spouse in the data collection and evaluation process?
I also find out early on whether the client plans to negotiate directly with the other spouse; is willing to engage the services of a professional mediator; is willing to share the services and expenses of jointly retained experts if the other spouse will agree; wants me to take on direct negotiating and advocacy responsibility; is willing to cooperate and problem-solve with the other spouse; or wants to battle things out in an adversarial way.
I tell my clients that I take a stand in favor of cooperative problem-solving if the other spouse is willing to do the same. If my clients are met with unreasonable resistance, then I have no problem taking on the role of traditional advocate. However, I always encourage my clients to remains open to constructive problem-solving if the other party happens to change his/her mind along the way.
Throughout my representation, I encourage divorcing clients to jointly engage the services of facilitative experts in counseling, taxes, asset and debt valuation, college financial aid planning, general financial planning, life insurance planning, therapeutic mediation, divorce mediation, and all similar multidisciplinary inquiries. Such facilitative undertakings get parties to cooperate with one another and with legal counsel, and also get them past their initial (and natural) resistance and emotional acting-out. By concentrating on future planning and orientation, we tend to minimize clients’ “bomber” tactics and preoccupations with the “small stuff”.
Through these techniques, lawyers promote clients’ long-term interests and healing. We help clients manage their emotions. Importantly, we also manage clients’ expectations, get them better focused, help them create more realistic scenarios, show them the light at the end of the tunnel, help them detach safely from their spouses, help them gain the independence they seek or need (even if previously resisted for understandable reasons), and help them see, create, and live into a successful future.
So what does all of this have to do with professional liability avoidance? Simply stated, everything. Clients whose real (inner) needs are met will be happier with their outcomes than clients who frame the professional undertaking for us and then (unconsciously) prove themselves and us wrong in the process. Clients who initially resist this style of lawyering will either drop out early (thereby avoiding future headaches, ethics complaints, fee disputes, and/or professional liability claims), or they will come around. I have learned to respect and appreciate either client choice without judgment.
These techniques have a beneficial effect on legal practitioners as well: we take a healthy and positive stand regarding our clients’ lives; we see ourselves as our clients’ professional friends rather than as their hired guns; we avoid burnout by concentrating on realistic outcomes rather than trying (and usually failing) to attain the unattainable for the unappreciative; we reward our clients’ healthy instincts rather than their punitive ones; we pay positive and close attention to healthy client modeling rather than reward those who play the complain, blame, and victim-identify game; we maintain good client relationships and sever those that do not serve us; we become known in the community as problem-solvers; we maintain better and more professional relationships with our legal brothers and sisters as well as with members of other professional disciplines; our families like us better because we are constructive problem-solvers and carry less stress than our adversarial counterparts.
Much of this work comes out of Fisher and Ury’s Getting to Yes philosophy of finding “a third way”, that is, being a principled negotiator rather than a “hard” or a “soft” bargainer. Roger Fisher also teaches us to be unconditionally constructive, thereby serving our inner need for peace and security, while drawing reasonable lines and always looking to improve our position apart from the negotiating partner. In this philosophy there is both simplicity and strength.
Who is the most powerful negotiator? The one who can do without the item being negotiated. In my view, that includes (or should include) the professional who understands the power of choice in the first instance: to take or reject a case, to renegotiate a professional relationship during the life of a case, and to withdraw or invite substitution of counsel when the time has come to take those steps. Conflict resolution, like charity, starts at home.