Whenever I begin a mediation session, a collaborative divorce meeting, or a four way in a cooperative or litigated divorce, I recall the words of Saint Teresa of Calcutta. “If peace & love are not allowed to take their rightful place at the table of negotiation, then hatred and anger will produce conflict that will continue for years to come.”
For those of you who do not know or are unfamiliar with the different divorce processes available to you; here is a brief description of each process:
1) Mediation- a mediator facilitates discussion. A mediator attempts to come to common ground on the issues of divorce so an agreement can be prepared. The mediator is a facilitator not an advocate for either party and remains neutral.
2) Collaborative divorce- Here a couple hire attorneys that are collaboratively trained and there is a written pledge not to go to court. The couple and attorneys form a team with professionals that are collaboratively trained such as divorce coaches, financial advisers, child specialists, or a CPA may be brought in and become a part of the team. It is interdisciplinary. There is a sharing of information and transparency.
3) Cooperative- Each spouse hires their own attorney. The goal is to not have court intervention. The case however, is treated as a litigated case. Financials are exchanged and he attorneys and couple attend four-way conferences and prepare settlement proposals. At any time if there is a breakdown in obtaining information or inability to come to terms either side can file for a court date.
4)Litigation– The divorce case begins with the filing of the summons and complaint. One party is served with divorce papers each hires their own attorney and there is usually court intervention.
5) Uncontested parties have an agreement and the attorney merely prepares an enforceable agreement and files the uncontested divorce papers. The attorney represents the person filing and may assist that client in the terms of the agreement with the other spouse who is not represented by counsel.
In any divorce as described above there is no way to settle any legal conflict without peace, humility and love. Love, being defined as willing the good of the other, needs to be the motivation. This is especially true when you share children with your ex or soon to be ex- spouse. There must be justice, which means each person getting what is their due tempered with mercy. To have successful settlement negotiations, the parties and their attorneys must be grounded in the following:
1) Knowledge of the law
2) Attentive listening- seeing and hearing where a person is as well as discovering their fears and concerns. Looking beyond a position to the underlying goal and what is behind these goals is crucial to success.
3) Humility – not allowing pride, wanting to win, competition, or hurting the other person to be a motivation.
4) The attorneys must not get in their own way or the or the way of their clients. Lawyers are counselor of the law, not judges or the parents of our clients. Clients must be free to choose their own course. Our job is to counsel them on the law and try to persuade them to take a reasonable position that will benefit them not just in the short term but long term.
5) Attorneys must not stand in the way of negotiation or their clients. Not allowing a client to voice what they want or how they want to settle is damaging and unethical.
6) Prayer, my friend and colleague Antoinetta, told me whenever she begins a conference or appears at court, she asks God to give her the words to say. I do the same and ask for strength, guidance, and wisdom. I often pray the prayer of Saint Michael prior to entering the court room or a settlement conference.
7) Integrity- attorneys counseling clients to do the right thing.
Each of these factors are key ingredients to successful negotiations and settlement. When any of them are absent everyone is in for a bumpy ride and sometimes the ship may capsize.
I recently attended a collaborative meeting which almost ended the collaboration because the lawyer would not allow his client to speak and spoke for her. This couple had worked out parenting but he imposed his own ideas on her and dominated the discussion. He nixed their shared schedule which they had been living with and agreed to. I asked that we table the parenting. I spoke to the attorney privately and asked him to let his client have a voice. At our next session I was able to bring the wife into the circle and let her speak freely. As a result, the shared plan is being tried and if there are any problems, we have agreed to have the couple see a child specialist who is collaboratively trained to help them with a final parenting plan.
in a litigated legal case, my client was the primary caretaker for the child while the Mom was at work. I attempted to settle the entire case with fairness and equity. Shared parenting no support as each made similar salaries and sell the house so each could obtain a new home. However, an accident while the child was in my client’s care has now set the stage for a custody case. He has been demonized and blamed for something he did not do. The child has not been able to see him and the devastating emotional, financial, and psychological damage as a result is monumental. It is heartbreaking. The attorneys in the case including the attorney for the child lacked many of the skills and abilities discussed above including not doing what is best and fair for their clients.
So, what is the answer? I do not know. All I can suggest is if you are the client understand an attorney advises and advocates for you. They cannot not and should not stand in the way of a settlement. If they feel you are making a mistake or getting less than you” deserve” if you proceeded with court litigation or a trial, your lawyer can simply write-up something between you that you went against their advice. In this way they are protected. it is your life and the life of your children. any settlement offer must include a cost benefit analysis. Your attorney should do this exercise with you. An excellent matrimonial Judge I often practice before says about settlements and going to trial, “What you know and what you can prove are two very different things.”
With all the years I have practiced and with my own experience of divorce I am committed to continue to fight the good fight. I will continue to educate my colleagues and clients about how and why we should be resolving cases and how detrimental litigation is for clients especially their children. At the conclusion of a litigated case the devastating financial and emotional costs are beyond measure. Of course, some complicated cases with certain legal or financial issues may need to be litigated; but most cases if prepped properly, the information is gathered and complete, there are frequent discussions, conferences, and well-thought-out settlement proposals drawn up they do not need to be litigated. In a settlement you chart your own course. Everything is covered in a well thought out, well written settlement. It is all laid out in a complete package.
I think of Mother Teresa’s words and hope I will be her are spokesperson in bringing peace and harmony into divorce. Anything is possible for God and those that work for his purposes. I will continue the good fight. As the song goes, “Let there be peace on Earth and let it begin with me. “Won’t you join me?
