Safety in the Divorce Process: Reducing Anxiety to Facilitate Joint Problem-Solving
The end of a marriage is a frightening time for most people. Not only are past hurts and failures likely to be triggered, in most cases the husband and wife have lost their primary confidants (each other) at a time when they are most vulnerable and in need of support. As emotions escalate, cognitive areas of the brain shut down and problem-solving becomes impossible. Reducing anxiety is therefore critical to the collaborative process.
The following is an A through H list of how to reduce anxiety and encourage creative problem-solving.
1. Attractive Attitude. My Uncle Joe’s favorite bromide: “you’ll harvest more bees with honey that you will with vinegar.” It seems simple but we all know lawyers who don’t follow this path. Be a likeable person, and the collaborative settlement process will proceed more smoothly and give satisfactory (often amazing) results. I tell my clients that I am going to be extra nice to their spouse. My reasoning: if the other party trusts me, she is less likely to be distracted by thoughts of how I’m working to take advantage of her, and so there is less static on the line as we communicate about the business deal of getting the clients divorced. My attitude toward the spouse also supports my client in being more amicable.
2. Belonging. Organizational consultant Sallie Lee defines belonging as a “state of connection such that work can begin.” At the beginning of the collaborative process, our clients are focused on survival. They’re doing their best to disconnect but we need to focus on what connection is still there to be able to work together. They’re in a protective, defensive mode that is not conducive to accessing intelligence. They’re often hearing admonitions from friends to “be tough” or “stand up for yourself” that are well-intentioned but lead to polarization. To do the best work, that sense of polarization must be interrupted and belonging must be encouraged. Belonging includes a climate of openness, honesty and trust where everyone has the opportunity to speak and exchange information. Collaborative attorneys should offer constant invitations for clients to control the process and be continuously engaged. Do the same with your co-counsel; that is, think of yourself as teammates with a common goal to get your clients the best deal possible, with maximized mutual benefit. Practice listening and encourage others to listen, respond to disclosures in a positive way that encourages more disclosure.
3. Contract. The Collaborative Agreement provides the structure and ground-rules for the process. It can be a roadmap that provides much needed safety and security. In addition to our typical collaborative agreements (no litigation, etc.), it can also be an opportunity for personal contracting. Maureen McCarthy, creator of The State of Grace Document offers the following as a foundational part of creating an enduring agreement:
Each person creates a bullet-pointed list of his or her Work Styles and Warning Signs. The Work Styles is an account of how you like to work in general. Do you need to think out loud with a group, work alone at times, need an agenda? The Warning Signs lists the external clues that show signs of stress. Do you go quiet, immerse yourself deeper in your work, become a perfectionist?
By spending a few minutes on identifying these possible sabotaging moments, everyone becomes part of designing the process and identifying where they might take it off task. I might tell the group “I tend to talk too much when I get nervous.” They can agree that if I’m talking too much, someone will ask me what I’m nervous about and get everyone back on track.
4. Dialogue. The communication model known as Appreciative Inquiry, or “AI” focuses heavily on creating dialogue. AI practitioners have identified inquiry and curiosity as powerful tools to forming agreements whereas advocacy often shuts down communication and leads to positions that do not tend to resolve issues. Often we lawyers believe we see a solution for our clients or for the couple and we attempt to steer the process in the direction of the answer we see, advocating rather than staying in the inquiry.
Keep an open mind throughout the process. In a collaborative practice, dialogue should focus on the exploration of understanding rather than an assertion of conclusions. The tone of your communications should be fair, open, and free of threat or coercion. The language of in-person communication, telephone calls, letters, and emails should be businesslike, and should serve as a stepping-stone to settlement. It should be invisible, and not a vehicle to encourage repulsion and fear. Stu Webb’s advice on keeping the tone of written communication productive: end letters with an upbeat, friendly sentence. That way, the reader at least leaves with a positive feeling. Pauline Tesler suggests a powerful technique when in doubt about whether a letter is going to fuel flames: send the letter to co-counsel as a “draft,” with instructions to reply whether the letter comes off wrong. J. Kim Wright uses the subtle technique of signing off with “Warmly, Kim.” She reports that many readers tell her that they find this comforting.
As lawyers, our listening skills in the negotiation process may pose difficulties, as we’re very often conflict averse, and we usually have already come up with a solution. Typically, we’re better problem-solvers than we are active listeners. In the collaborative process, the clients are the masters of the deal, and by giving judicious exercise to the difficult art of sitting silently and actively listening, we encourage them in creative problem-solving. As litigators, listening without immediate retort proves very difficult. Collaborative practice requires empathic listening. That is, did you hear what the speaker said AND was what you heard in line with the message the speaker meant to convey? In other words, did you get it? Backchanneling and reframing are often good tools for this.
5. Environment. Logistically, the environment of meetings should be comfortable, as distraction-free as possible, and at a table which discourages us-vs.-them positioning…a round table preferred. Food offers a welcome surprise to clients and co-counsel. In Asheville, collaborative cases often get somewhat competitive in terms of who can bring the best snacks. This is a fun way to vent the competitive spirit.
6. Feedback. Feedback should be constructive and constant. We become better collaborative lawyers when we encourage each other to help us improve our collaborative practices. Our clients need the reassurance that they’re doing well in the process – or help in doing so. It is a scary process, but the results are transformative.
7. Goods & Gear. Have on hand and in active use the tools that help neutralize conflict before it can manifest in your negotiations. In order to reduce the stress and dissonance inherent in the equitable distribution process of classifying and valuing property, think about using a spreadsheet which details the property and agreed-upon values of the parties thereto. One of the co-counsels can prepare the spreadsheet and update it following each 4-way meeting. This will memorialize interim decisions and helps to create boundaries on the subject matter. I have found the spreadsheet also helps with memorializing parenting decisions as well. Another powerful tool is a needs-inventory, which is a list of each party’s (and the kids’) emotional, physical, and economic needs, created in the time-frame of a 4-way meeting. It is a group project for the parties, and it often leads to magic moments of belonging, understanding and empathy…good tools for the parties to have with them as they begin to divide their assets and children’s time.
Neutral Experts are a particularly powerful collaborative tool. In your personal practice and in your practice groups, develop a list of collateral professionals (therapists, appraisers, money managers, tax experts, etc) who can help you settle cases. And avoid professionals that are going to increase acrimony. A business appraiser who knows how to communicate understanding and layout the reasons for his valuation is going to help you avoid difficult problems. The clients are more likely to trust him mutually if he knows how to make his process transparent. If you’re really lucky, your collateral professional might also have some mediation skills too, and then your work will seem very light indeed.
Impasse Strategies also can have a prospective problem-solving aspect. Parties take comfort in knowing in advance that if counsel get caught in negotiation quicksand, they have tools for getting unstuck. Talk about mediation in advance. Perhaps agree on a mediator. Perhaps agree in advance on the acceptable conflict-resolution strategies.
8. Harvest. When you’ve come up with your agreements, make sure they’re memorialized in a form that is consistent with your amicable relationship. Adversarial language or unnecessary jargon in consent judgments, separation agreements, etc. will tend to undermine the process and may trigger confusion that leads to distrust.
CuttingEdgeLaw.com publisher, J. Kim Wright, also contributed to this piece.
