Good Family Lawyers are Problem Solvers

Rubix CubeI’m now in my 14th year of practicing law.  While I’m not yet a planning any retirement parties, I’ve got a fair bit of my life invested in this profession. Over that time, I have noticed an evolution in the way I think about the law and my role in it. Fresh out of law school, I, like most new lawyers, saw getting the “right” legal answer as the goal of practicing law.  Each client and case was an exam question that I wanted to get right. Then, it evolved into a need to “win.” You realize that the “right” answer doesn’t always win the day (and may not even exist); you want to win.  Even if the legal basis is dubious or makes poor policy, you want to win for your client, and yourself. 

Analytics: “There aren’t many clear cut ‘winners’ in domestic proceedings.”

Analytics Analytics has confirmed what family law attorneys have known anecdotally for a long time:  There are not many clear cut winners in divorce cases in court. Analytics has taken root in almost every industry in the world. Now it’s even made it’s way to the notoriously mushy world of family law. As described in this article in the Miami Herald, an analytics firm recently dug into data from litigated (i.e. outcome decided by a judge) family law cases in Miami.  The results paint a pretty ugly picture for anyone considering asking a court to determine their divorce and related legal outcomes. According to the researchers, the results of the analysis revealed three important dynamics: 1. Favoritism exists: Judges appear to have favorite lawyers and those favorites fare better with those judges. 2. Big firms offer a 7% outcome benefit, but for a significantly higher cost. 3. More expensive attorneys do not win more than less expensive attorneys. There are some caveats to be mentioned here in my mind:  First, it could be that good lawyers choose their battles more effectively, settle their weaker cases or prepare more effectively; and that could be why they have higher win rates with particular judges.  Favoritism is one possible explanation, but it may not be the correct one.  The numbers are curious nonetheless. Another caveat is given by the authors, but it is even more alarming than the results!  The researchers admit that “determining win rates is highly problematic.”  Why?  Because, “there really aren’t many clear ‘winners’ in domestic proceedings.” The researchers go so far as to claim that “Family law is the Wild West of the Legal profession.”  (Que the Gunsmoke theme music) Given all of this, it seems that a savvy consumer would steer clear of court when getting divorced.  Choosing a process that allows them to determine their own outcome and allows both parties to define their own “win” seems to me to be a far better choice than “the Wild West.” The good news is that in North Carolina, there are great alternatives to the Wild West. Collaborative Law allows a divorcing couple to keep their divorce out of high noon duels in the courtroom.  It allows a couple to sit down and negotiate a resolution face to face with the help of their attorneys, and other professionals.  There are no bullets to dodge, no posses to round up (and pay), and no hired guns to fear. The objective evidence against getting a positive divorce outcome in court continues to mount.  It’s a good thing alternatives exist.  

Why Arguing is So Expensive in Divorce

In divorce, time is money.  Most divorce attorneys charge by 6 minute increments.  That means that you are going to pay anywhere from $2.50 to $7.50 or more per minute for your divorce attorney’s work. Legal BillI would be greatly concerned about using my attorney efficiently.  I would want more money going into my pocket, my kids’ college, or my retirement than to attorneys. To be sure, skimping on an attorney for a divorce is not a good idea.  That can lead to very expensive mistakes. But, paying more than necessary for your attorney can be avoided. In my experience, the number one factor in the legal fees in a divorce is not the hourly rate of an attorney.  Rather, it is the amount of time that a client pays an attorney to do things other than help resolve their case.

Don’t Confuse Arguing for Negotiating

Arm WrestlingDoes your attorney argue or negotiate? Arguing is not the same as negotiating. Negotiation, at its root, is problem solving.  It is the act of solving joint problems. Arguing, by contrast, is at its best the act of trying to persuade someone to adopt your point of view. It is the act of trying to convince someone else that you are right, and they are wrong. At its worst it is trying to convince someone that that you are worthy and they are not; they are bad, and you are good. Negotiating involves a consideration of the other party’s perspective, and what they need from the negotiation.  It involves some degree of effort to meet the other party’s needs in a resolution, in recognition that resolution is a two way street. By contrast, argument ignores the other party’s part in a resolution.  It treats the other party as if their agreement is not required for resolution.  It says to the other person “You are an obstacle to me having what I want.”  That may be true, but

In Divorce, It Pays to Be Nice

When trying to influence someone, as in a divorce negotiation, respect and politesse go a long way.

When trying to influence someone, as in a divorce negotiation, respect and politesse go a long way.

I often have conversations with clients about “catching more flies with honey than with vinegar.”  Angry people are not very generous or considerate.  So, if you can try not to anger your spouse in a divorce negotiation, then your outcome is almost always going to be better. This short musing inspired by Richard Pryor makes the point nicely, I think.

The Echo of Divorce

I heard the phrase “the echo of war” for the first time this week.  An expert on Chechnya was discussing the Boston Marathon bombings as a possible “echo” of the military conflict in Chechnya that began almost 20 years ago, the Iraq Wars or the war in Afghanistan.

 

That got me to thinking about the “echo of divorce”.  These military conflicts, this expert explained, created resentments, hard feelings and explosive emotions among some Muslims.  Once created, these volatile feelings were very hard to contain.  So, years after these conflicts began, we may have heard an echo of them in a most unexpected place.

 

Divorce is simply another form of conflict.  It too has an echo. 

 

And, the echo of divorce can also be heard decades after the fact and in very unexpected places.

 

The echo of divorce can be heard in your children’s emotional well-being, school performance, future romantic relationships, and adulthood.

 

It can be heard in your family life, financial future, your future romantic relationships, your emotional well-being and friendships.

 

It can be heard in your place of worship, job, school, and social circles.

 

It can be heard at holidays, birthdays, graduations, weddings, delivery rooms and custody exchanges. 

 

But, once an echo is created, it is difficult to control.  Just as no one could have foreseen the events in Boston, you will have trouble predicting when and where the echoes of your divorce will sound. 

 

The good news is that you can largely control the sound and volume of the echo of your divorce.  In my experience, noisy divorces create louder, longer more negative echoes.  Quieter divorces create lower volume, shorter and more positive echoes.

 

Determining the echo of your divorce starts with finding a divorce process that reduces anger, animosity and acrimony in favor of respectful dialogue. Diplomacy over combat. It proceeds by not wasting time on argument, but instead invests your valuable time and money in problem solving.  It finishes not by crowning the “last man standing”, but in a dignified de-merger of two whole individuals. 

 

Decide early on what kind of echo you want your divorce to have, and choose your divorce process accordingly.  Otherwise, you may be dealing with unpleasant echoes for a long time.

Lessons from Christie Brinkley’s Divorce

As a collaborative divorce attorney and mediator, I spend a lot of time explaining the potential negative effects of an adversarial divorce. 

 

But, nothing exemplifies those negative effects as well as the story of Christie Brinkley and her husband.

 

They have been divorced since 2008, but they are still consumed by the anger and hard feelings generated in the divorce. 

 

Instead of moving on and finding happiness, they are emotionally chained to events that happened four years ago.  And imagine what their kids’ lives have been like since!

 

Unfortunately, this couple’s experience is not unique.  Less famous stories like theirs play out every day for many couples who choose to handle their divorce in a “win/lose”, “me versus you”, “attack mode” process like going to court or traditional negotiation process.

 

One of the keys to collaborative divorce is “de-escalation”, or the lowering of tensions and emotions during the negotiation process.  This helps couples think clearly and productively.  And, it models the blue print for a healthy future co-parenting relationship.

 

I can’t help but wonder what would have been possible for Christie Brinkley, her husband and her kids if they had chosen the collaborative divorce process.  I suspect that her Today interview would have been about her career, as intended, instead of her divorce.  

Update: Family Financial Settlement Mediation Certification

I am happy to announce that I have been certified to mediate court-ordered Family Financial cases by the North Carolina Dispute Resolution Commission (NCDRC).  

While I have mediated family financial issues by for families that selected me in the past, I am now certified for court appointed mediations in the family law field.

This means that judges in Wake and surrounding counties can appoint me to mediate equitable distribution, alimony and other financial issues in family law matters.  

I look forward to continuing to help families resolve their financial problems as a NCDRC Certified Family Financial Settlement mediator.

The Value of Neutral Information in Child Custody Issues

Unbiased neutral information about the children and their families in custody issues is invaluable.

North Carolina judges seem to be placing greater value on the opinions of neural third parties in custody actions.  But, expert witnesses that testify in court are cost prohibitive for most people.  Most people simply cannot afford to pay $5,000 to $10,000 or more in addition to their legal fees to hire an expert to provide this testimony.  And, experts hired by just one of the parties are hardly considered neutral.

In the face of these issues, more judges are appointing a Guardian ad Litem to provide truly neutral opinions on what is in the best interest of the child.  In a growing number of cases, a Guardian ad Litem is appointed by the court to investigate the situation and make recommendations to the court regarding the child’s best interest.  A Guardian ad Litem can be an attorney, but can also be a non-attorney. 

The value of a Guardian ad Litem’s testimony is that it is coming to the court from a neutral source who is not advocating for one of the parents, but instead for the child.  It is a truly objective look at the family and the child.  Objective neutral information is hard to come by in a litigated family law case.  That is why it is so highly valued by judges. 

Collaborative divorce has long utilized child expert neutrals to provide the kind of objective unbiased information that a Guardian ad Litem can provide to a court.  The major advantage of the Collaborative process is that it provides not just neutral input, but expert neutral input.  The child/parenting neutrals that participate in the Collaborative Divorce process are trained therapists that specialize in children’s issues.  They are experts on how children react to divorce and provide neutral, unbiased expert input as to how the children in a particular case are handling the separation and divorce.  They also provide information on what the children will need moving forward to help them adjust to the new family situation in the healthiest way possible.  And, because the child neutral is hired by both parties in a Collaborative Divorce, the information remains unbiased and objective.

The courts’ increasingly active pursuit of information from neutral third parties in the form of Guardian ad Litems reinforces the time-tested wisdom and value of the child neutral in the Collaborative Divorce process.  The advantage of Collaborative Divorce is that this neutral information is more affordable and is provided by an expert in the field.

If you believe that obtaining neutral expert information about your children and their adjustment to the divorce would be helpful to your decision making, then you should consider obtaining that informaiton through the Collaborative Divorce process.