Posts Tagged ‘collaborative’

The Danger of Premature Certainty in Divorce

Dewey Defeats Truman
I recently heard a reporter and author discuss his team’s process for determining which stories to pursue, and which ones to shelve. He said that in their process “premature certainty is the enemy.” I had never heard the term “premature certainty” before, and maybe he invented it on the spot (a quick Google search found it in one lone discussion of software development). But, it struck me as exactly what the collaborative divorce process is designed to avoid. A general definition of premature certainty might be thinking that you know the facts or solutions before the prerequisite information has been determined or proper analytical steps have been taken. In a divorce context, one or both spouses commonly try to figure out the solutions and answers to the legal, financial and practical challenges as soon as they realize what is happening. They frequently do this in their minds, before and without input from the other. That is, they become prematurely certain of the best way to resolve the issues. That is a perfectly natural response to the new and unknown situation that spouses find themselves facing in separation and divorce. It is not a bad thing to begin thinking of those issues. But, there is an important difference between initial thinking and premature certainty. One is thought and analysis, the other is a conclusion. Why does it matter? Premature certainty negatively impacts the negotiation process by:
  • Closing the door to alternative, potentially better, solutions before they can be analyzed
  • Truncating the information and fact gathering and therefore eliminating necessary information from consideration
  • Creating dangerous blind spots
  • Entrenching thought processes and creating “positional” bargaining that often leads to the creation or increase of hostility and destruction of basic trust
  • Creating a dynamic in which any challenge to one spouse’s premature certainty feels like a challenge or criticism; i.e. “I’m not sure that will work” is heard as “your idea is terrible/wrong/dumb”
  • Making the other spouse feel as though their input is neither wanted nor valued
All of these issues extend a negotiation, fueling increased costs and stress. When it comes to divorce negotiations, haste really does make waste. The collaborative negotiation process is designed to combat premature certainty by placing the certainty phase at the end. In the collaborative negotiation structure, we only seek certainty about solutions after we have gathered all of the necessary relevant information, figured out what is important to the spouses and children (if any) and thoroughly explored potential options for resolution. Before completing those three steps, certainty is premature. That is not to say that those three steps cannot be completed quickly in appropriate cases so that certain solutions can be chosen. After all, the goal is to achieve certainty in your resolution, just not prematurely. If you find yourself in a separation or divorce situation, make an effort to resist premature certainty in favor of a structured information gathering and analysis process. And consider a process like collaborative divorce that is designed to combat premature certainty. The resilience and quality of your ultimate solution will benefit.

Divorcing Without Losing Your Communities

One of the saddest, but most common losses in divorce occurs when one or both spouses lose their communities as a result of the divorce (perhaps even sadder is when divorce causes children to lose their communities, but that is another story for another day).  

These communities are diverse and take many forms.  They are neighborhoods, social friendships, church families, extended families, work families, and in-laws among others.  These communities can even be clients, referral sources, and other networks that are foundational to your livelihood.

We are all familiar with this, having either been the divorcing spouse feeling shunned or anxious about how those communities will receive us. Or, as the community member unsure of what to say, whether to reach out or how to navigate the waters of someone else’s divorce. 

The question is how to prevent it.  The answer lies largely in how the spouses handle their divorce.

In general, the less conflict involved in a divorce, the fewer community relationships suffer. Just as children are highly sensitive to the conflict in their family, communities are highly sensitive to conflict among its members.

Every divorce has conflict.  For that matter, every happy marriage has conflict.  The difference is that in cases where communities are lost, the conflict has spilled over to community members. A spouse is sharing negative information about the other with the community.  Conflict erupts into arguments in front of friends or family.  In seeking support from their communities, spouses sometimes “poison the well” for the other spouse, intentionally or not.  

When conflict spills over to the community, the community rarely knows how to react appropriately.  Most communities are not trained to manage that conflict.  They don’t know how to support both spouses without shunning either of them. 

The best way that I know to get through a divorce without losing your communities is to adopt a divorce process that can contain the conflict so that it does not spill over into other areas of your life.  

While all divorce processes have pros and cons, some are designed to contain conflict, while others are designed (intentionally or not) to intensify conflict. For example, court processes are designed to contain conflict in the sense that it substitutes for vigilante justice. But an adversarial court process is not designed to avoid collateral damage to your communities.  In fact, your communities are often dragged into court as witnesses. Mediation is designed to contain conflict before it spills over to trial. But mediation is most often highly leveraged based on strong-arm tactics, increasing the odds that the conflict spills over into communities, even if it avoids more courtroom time. 

The best process for containing conflict, and preventing it from costing you your communities in divorce is the Collaborative Process.  There are many reasons, but they all come back to the fact that experienced collaborative attorneys are extensively trained and committed to handle conflict, even highly emotional conflict, productively, by de-escalating it and channeling that energy it into problem-solving without becoming adversarial with each other or the clients.

If you are facing a divorce, then give some thought to preserving your communities, and how to do that.  Give some thought to the collaborative process.

 

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 Smart People Can Have Dumb Divorces

Left brain = logical thinking Right brain = emotional thinking

Left brain = logical thinking
Right brain = emotional thinking

Working in Research Triangle Park (Raleigh, Durham, Chapel Hill) a region renowned for its education level, I have the privilege of working with a lot of very smart people.  Doctors, professors, business executives, entrepreneurs, nurses, techies, and domestic geniuses all bring healthy IQ’s to the collaborative divorce conference, mediation or negotiating table. Certainly raw intelligence helps in a divorce.  The ability to learn, process and analyze complex legal issues and numbers is immensely helpful to efficiently resolving a divorce. But, in my experience, it pales in comparison to the ability to recognize, understand, process and deftly handle the emotional component of divorce, both in yourself and in your spouse.