Why Running To Court And Refusing Divorce Mediation Is A Bad Idea

C. Sean Stephens had an excellent post this week in his Collaborative Divorce Northwest Blog about how the strategy of rushing into court to get a ruling on issues such as custody, possession schedules, support, etc. may be ill-advised. Not only is this blog one of the few dealing primarily with Collaborative Law issues, but it is always interesting and well written. This post gives the perfect example of how an attorney can misread a case, with bad results for their client, when a settlement process (here, mediation) before the hearing could have provided for an acceptable arrangement for both parties. Here's what he had to say:

"Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom.

"I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

"Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome."

Here in Tarrant County, we rarely do mediation before a temporary hearing, although it is done in some cases. (We tend to rely on mediation more for final orders.) There certainly can be a benefit to trying mediation before going to court any time. Even without mediation, it's usually a good idea to make every effort to come to an agreement before you go to court.

Sometimes, however, a party or attorney will come to believe that the facts of the case are all on their side and that they shouldn't waste time negotiating. I consider that sort of an old fashioned attitude. It's great to be confident, but you really lose control of the case when you turn it over to a judge to make a decision. It's always a gamble. Sometimes it pays off, but sometimes it doesn't. With high expectations of a favorable result, it can be devastating to a party if the judge picks up on something unexpectedly and rules the "wrong way"!

Sean is a Collaborative lawyer and like many Collaborative lawyers in Texas, he tends to use a Collaborative approach even in non-Collaborative cases. Usually, that is an effective approach. Parties should never approach a court hearing overconfident, because they are likely to be disappointed. A lot of heartache and anger can be avoided if the parties and attorneys will make a genuine effort to settle before they take a chance in court.

Recipe for a Happy Divorce

In looking around the blogosphere recently, I ran across an uplifting blog post by Marie Fahnert, a Chicago divorce lawyer. She provides a "Recipe for a Happy Divorce". While no one can guarantee the outcome of a divorce, or even how the process will work out, she presents some points that strike me as eminently do-able, even if they would take some effort. I believe that if people going through a divorce gave her approach a try, they would have a much better experience going through a divorce.

Here's what Marie had to say:

"Maintaining happiness (or some semblance of it) through your divorce might not be as difficult as you think. According to scientists, the following things make us happy:

1. Virtues: Our sense of wisdom, justice, compassion for others,
2. Gratitude: Appreciating what we have and expressing it to ourselves and others,
3. Savoring: Enjoying the moment and taking time to smell the roses,
4. Engagement: Being in our activities for the experience of it ("being in the zone"),
5. Living a meaningful life: Doing things for others and helping others.

"Studies of the Danish (the happiest people on earth) show that low expectations also make us happy. If our expectations are low, then we become happy when things go unexpectedly well. Also, Denmark's social safety net ensures people the basic necessities of life.

"How can you go through a "happy" divorce?

1. Remember that you are in control of the things that make you happy (see 1-5 above).
2. Approach the divorce—and the associated child-custody, division of property, maintenance issues—with realistic expectations.
3. Reach an agreement with your spouse and litigate as few things as possible. This will save you money and—like the Danish—you won't have to worry about the basic necessities of life."

This post is very timely because I always notice an increase in filings for divorce just after the first of the year. For various reasons, people put off filing until after the holidays, and then the divorce season gets into full swing. If you or someone you know is facing a divorce, please take the time to incorporate Marie's ideas into your life. Divorce is naturally stressful and unpleasant. If you can reduce that unpleasantness, your efforts will be well rewarded.

Should You Hire a Collaborative Lawyer for a Case in Litigation?

An issue that comes up all the time is whether a Collaborative lawyer can or will handle non-Collaborative cases. For me, the answer is yes. Some people just assume that a Collaborative lawyer will no longer participate in litigation. That is true for some attorneys, but (at this point in time) all Tarrant County divorce lawyers who are trained in Collaborative Law still handle litigation, and that is true of most Collaborative attorneys in Texas. You can just ask an attorney if you wonder about it.

A related issue is whether it is advisable to hire a Collaborative lawyer to handle a litigation divorce. Some people may have a vague fear that a Collaborative lawyer would be unprepared, uncomfortable or unable to function in a litigated case. That is a misplaced fear. Actually, the main difference is that Collaborative attorneys have extra training and experience in negotiating that some litigation attorneys don't have. Which leads to the question: How are the extra training and experience an advantage in litigation?

Let preface my answer by briefly explaining how Tarrant County divorces work, which is essentially how they occur in many of the other counties in Texas. In a litigated divorce, here are the basic steps that are commonly followed:

• One party files for divorce, gets a restraining order signed by the judge and then gets a temporary hearing scheduled. It is usually set 10-14 days after the filing date so that there is time to get the other party served with papers.

• The other party receives the papers, usually from a process server. The papers are a petition for divorce, restraining order and notice of the hearing. There will be a citation explaining the need to respond to the petition.

• If there's enough time, the two sides will sometimes negotiate before going to court to start to work out temporary or interim orders.
  

• Both parties appear at court on the appointed date. They, or their attorneys, negotiate. Although the event is called a "Temporary Hearing", there usually isn't a hearing. Cases are usually set at 8:30 or 9:00 a.m. and often the parties spend all morning at the courthouse negotiating.
  

• Negotiations can involve meetings with the judge and occasionally end in a bench conference with the judge, attorneys and parties. Even then, usually, most issues have been resolved before the conference begins and the attorneys usually only submit a few issues. Sometimes, there are negotiations in the judge's office with just the attorneys and judge present.

• After the judge decides or gives suggestions or an advisory opinion, there's often more negotiations to iron out the inevitable few remaining details.

• Temporary orders are drawn up and signed.

• The parties then begin to gather and exchange information, either informally (sometimes) or through the formal "discovery" process. In discovery, written requests for information are sent to the other party that require that other party to produce various and extensive types of information to each other.
  

• A trial date is usually set about this time, often many months away. Before the trial date, virtually every court requires mediation in almost every case. Mediation is not attempted only in the most unusual circumstances.

• Mediation occurs. It's usually either a half- or whole-day marathon in which all remaining issues in dispute in the divorce are to be resolved.

• Mediation usually works in around 90% or more of the cases. If it doesn't in a particular case, the case eventually goes to trial, although there's always the proverbial "courthouse steps" for final negotiations, and such negotiations are often successful.
  

You may have noticed that the common denominator in the above summary is the repeated occurrence of negotiations. The bottom line is that whether you end up in litigation (either by choice or otherwise) or Collaboration, you will be participating in negotiations.

Now, back to the question of the day: Should you hire a Collaborative lawyer for a non-Collaborative case? Here are some things to consider:

• Is there a good chemistry between you and the attorney?
• Does the attorney listen and communicate well?
  
• Can you afford the attorney?
• Does the attorney have the level of experience you require for your case?
• Is the attorney a Board Certified Specialist in Family Law?
  
• Is the attorney local and familiar with the judges and other attorneys?
• How would the attorney approach negotiations in your case?
  

Ultimately, you need to decide if there is good chemistry between you and your lawyer. If you don't feel good about how the attorney communicates or the strategy the attorney proposes, try another attorney. Even excellent attorneys are not always a good match for some people. And don't worry about hiring a Collaborative lawyer in a litigated case -- it may be one of the best decisions you have made.

Staying Ahead of the Curve: 12 Proactive Steps To Take If You Are Contemplating Divorce

I always recommend reading Sam Hasler's Indiana Divorce and Family Law Blog. He is a good source for staying current on family law issues because he writes insightful and interesting posts and also comments on posts he reads on other blogs. He recently wrote about a post he read in the Minnesota Divorce and Family Law Blog that is really appropriate for this time of year. At the same time that many people are making their New Year Resolutions, many other people are deciding to initiate divorce action. I often see a rise in divorce filings in January and February. People get through the holidays and then decide it's time to end their marriage.

For those who find themselves about to start on a divorce, the Minnesota blog has a great post with suggestions on how to prepare. The situations that Jason Brown mentions in his post occur all the time in Tarrant County divorces, and the need to plan ahead seems universal. Here's Jason's excellent article.

"Once you break the news of your desire to dissolve your marriage, interesting things may start happening at your house. Critical records and valuable items of personal property may suddenly vanish. It pays to be proactive to ensure that you have all the information you will need to move forward as efficiently as possible.

"The wasted time and cost associated with hunting down missing documentation can be staggering. We've handled cases where everything from an expensive diamond ring to boxes of business records have taken a bit a 'vacation.' We almost always find them, but not without substantial effort. In cases where they are not found, the Court will impose substantial sanctions and assume the missing evidence is favorable to you.

"To help avoid the mess, we've assembled a list of 12 things you should gather to ensure that you have all of critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

"Copies of financial statements;
Copies of tax returns;
Copies of computer hard drives;
Copies of insurance policies;
Copies of wills and/or trusts;
Inventory of safety deposit boxes, with a witness;
Copies of deeds and/or titles to real property;
Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
Copies of appraisals for art, antiques, jewelry and collectibles;
Record the contents of each room in your home through video;
Copies of retirement account statements; and
Copies of your spouse's pay stubs for the last few months.

"Investing some time in gathering these items will ensure that your spouse cannot take advantage of you during the divorce process. The denial of the existence of an asset is a fraud upon the Court. Once your spouse knows that we have all of the key information in hand, they are far less likely to engage in bad faith conduct and [more likely to] be honest in their disclosures throughout the process."

I can't exaggerate the importance of taking time in advance and copying or gathering all these records. Much of your likelihood of success depends on the information you have. What you believe the facts to be is not nearly as important as what facts you can prove. Having these records will greatly improve your chances of proving the facts to your judge or convincing everyone in negotiations that you are correct and are prepared to try the case, if settlement fails. And that's the best position to be in.

7 Ways to Wreck Your Kids' Holidays

Even with the bad economy, there's plenty to celebrate and enjoy this time of the year. But sometimes people are just miserable because of holiday stress and family issues. If you have children, this can be a great time of the year. If you have children and are divorced, this might still be a great time or it can be really difficult.

While you can (if you take responsibility and try) control your own feelings and attitudes, many people don't do it and let themselves get swept up in various holiday dramas. We can't control what an ex-spouse feels, says or does, and that sometimes leads to problems at this time of the year. On top of that, there's a natural feeling of disappointment when you can't be with your kids at certain times during the holidays.

Parents have a variety of attitudes about sharing or not sharing their kids, particularly around holidays. Their attitudes range from very considerate to insensitive to indifferent to the concerns of others, and even to being antagonistic toward others. Some people seem to thrive on conflict. Other people want to avoid conflict. If you're one of those who wants to avoid wrecking the holiday season, here are some quick tips on what you should avoid so you don't ruin it for yourself, your kids and other family members and friends.

What Not to Do:

• Make last-minute changes in your plans. You can create more havoc and hard feelings if you try to change the arrangements after everyone else has their plans made and travel schedule booked. Ignoring the other parent's plans will certainly create a great opportunity for conflicting plans. Trying to be cooperative well in advance of the holidays is the best way to deal with planning.
  

• Be inflexible if the other parent requests a change in the schedule. Things do come up that require new plans. Some parents insist on following the court's order without variation, when the other parent is asking for a favor. Such parents later inevitably have situations arise later that necessitate a change in the schedule. If they haven't been kind to their ex-spouse, they may not be able to convince that ex-spouse when the shoe's on the other foot.
  

• Be inflexible and demanding if you request a change in plans. If you are working under a court-ordered schedule, you can change it by agreement or by going to court and convincing a judge. Which do you think is quicker and cheaper? If you think that you can always have your way on visitation issues, you will quickly learn otherwise.
  

• Argue in front of the kids about the plans. Mature parents understand the need to keep kids out of adult issues. Arguing and negotiating a holiday schedule should not be done in front of the kids.
  

• Short-change the kids, but blame the other parent. If you choose to not let the kids have or do a certain thing, such as attend a family party, don't blame your ex-spouse. If you are convinced that the decision is the right thing, then notify the kids in an age-appropriate way and don't criticize the other parent.
  

• Criticize the other parent and the other side of the family. There are many times when a parent is very tempted to make fun of, or put down, the ex-spouse and his or her family. Some people even claim that such criticism is acceptable because it is "the truth". It's not necessary to investigate the truthfulness of the statements, because that's not the real issue. Even "truth" can be hurtful. The concern is that such critical statements are damaging to the children because they realize that they come half from each parent. They likely will take that criticism personally.
  

• Compete against the former spouse for the love and affection of the kids. Don't try to provide the best gifts, the best parties or best trips. Children have plenty of love to share and there's just no need to wage a battle over the children.

What to do

Some people are interested in avoiding the drama and conflict during the holidays. If you are one of those, here's some things you can do to improve your chances of having a happy holiday season.

• Keep a good relationship all throughout the year with your ex-spouse. You may have to hold your tongue occasionally, but the kids will respect you for it and you will have a better chance of getting any needed schedule adjustments or favors that you request.
  

• Be flexible and be willing to compromise. There are two sides to everything. Keep in mind that you can accomplish more through cooperation than through battle. And your kids will appreciate a reasonable and realistic relationship between their parents.
  

• Demonstrate mature behavior for kids. This will help your children learn to deal with adversity and it will help earn their respect.
  

• Listen and think before you speak out. Don't just blurt out an emotional response in discussions with your ex-spouse. Take a deep breath, listen to what your ex is saying and then think through your response before you answer. It will help avoid a lot of hurt feelings.

Happy Holidays!

Be Careful What You Say, Text and Write!

At the risk of bringing up a subject that many people are already tired of, the recent highly-publicized woes of a famous golfer clearly illustrate some of the issues I have written about before. As most people who have been paying attention are aware, Tiger Woods' predicament revolves around extra-marital relationships that appear to have been substantiated by his own texting and voice mails.

We will probably see and hear more in the coming weeks and months, but there has already been quite a bit of publicity about some text messages and voice mail. It's hard for Tiger to deny what's spoken, not just in his own words, but by his own mouth. When voice mails are saved, they can become evidence in court or in court cases. And the texting seems to add further proof.

Tiger's image and reputation are taking quite a hit and it looks like the controversy will end up costing him some of his endorsement income. There's a lot of money that is at stake.

I have previously written (here and here) about how emails, texts and voice mail can be and are used in court. It's powerful evidence.

The lesson is clear. Always remember that anything you write or say or do may be recorded and then presented in court. Make sure that you say and do appropriate things that you would not mind showing up in court or in the public media. Think before you speak or write.

Even if you are not Tiger Woods, there will always be people who will use your words and images against you, if you give them the opportunity. It's your decision. Think before you speak, write or act.

Five Quick Lessons from Tiger's Crash

It is pretty hard to ignore the firestorm surrounding Tiger Woods, and I won't, but maybe we can all take some positives from his situation. Here are some lessons that we can all try to remember and apply if we ever get into a family crisis. I'm not here to defend one side or the other, or to determine exactly what the facts were. Instead, I suggest that we use this as an opportunity to learn and to think about how we might act if faced with any crisis.

Lesson 1: If you realize you are involved in a seriously escalating argument, leaving is often the best strategy. Let both sides cool off. Avoid physical contact or threats. Let a little time pass before you re-contact the person. If you leave, drive carefully.

Lesson 2: Apologies may help. A sincere acknowledgement of fault and request for forgiveness may help avoid escalation. It's not a free pass, but it can help minimize the damage.

Lesson 3: Practice forgiveness. If you think you are the victim, at some point you have to decide whether to wipe out a relationship or salvage it. You should think carefully about it. If you see reasons to continue a relationship, then you may need to be forgiving. That doesn't mean there are no consequences for bad behavior. It just means that there are limits to the consequences.

Lesson 4: Remember there are always at least two sides to every story and every argument. It's very rare that all the fault lies on one side of the issue. Be ready to accept some responsibility. It helps to try to put yourself in the other person's shoes for a while to try to understand their point of view.

Lesson 5: Think carefully before you start telling the world, or the local police or press about what is going on in your personal life. Even a dull story may become prominent on a slow news day. Think before you speak. No matter how bad the other person has been, you may gain more by keeping control over the dissemination of news. If it is a serious situation, it would be a good time to consult with an experienced lawyer for evaluation and advice. Don't try to do everything on your own. With all the new media outlets, news can spread unbelievably fast. Get some advice before you go public.

People in difficult relationships probably spent a lot of time thinking how they would react if they had been in a situation similar to the one faced by Tiger and his wife. If you might get caught up in something like that, it would be a good idea to try to think ahead to the various consequences of your behavior and to consider your options. Better safe than sorry!

If You Want to Settle Right Away...

In about half my cases, my client is anxious to get the divorce over with as soon as possible. That may be true because of a new significant other, a desire for a fresh start, being tired of his/her spouse, or countless other reasons. Sometimes, a party to a divorce becomes so anxious to finish the divorce that they will concede almost everything. Even with that attitude, sometimes it's hard to move quickly to a conclusion. Many times, though, a party wants the divorce to be completed right away, but remains unrealistic about how to reach an agreement.

A recent post in the Alaska Divorce Blog discussed this situation and recounted some advice from a judge at a settlement conference. That advice is worth considering, so I am reproducing most of that post:

"• In order to reach a settlement in any type of dispute, each party must be willing to make concessions. To make concession means each party must be willing to give up something in order to attain something.

"• It is unreasonable to expect a party to settle for a property division, which represents their worst outcome at trial. It is unreasonable for a party to receive what represents their best outcome at trial.

"• If a case is not settled, then each party gives up all control over the outcome to the judge (a third party) who does not know either party and may view what is important in the case in way, which neither party anticipates.

"• If a case is not settled, then each party gives up the opportunity to get divorce immediately and faces what could be months of delay until the trial date and many more months until the judge finally has time to make a decision.

"The point the judge was trying to make is that to settle a case both sides have to be willing to give up something in exchange for getting something. In addition, even though the parties in a divorce case are dividing one 'pie', frequently, there are other issues involved than how much of the pie each of them will receive in the property division."

Lawyers try to get the best deal they can for their clients, but the clients must seriously prepare for negotiations by analyzing their own bargaining positions and the motivations of their spouse. It really helps if both parties can take their emotions out of the discussions and approach the sessions as a business deal. They have to be willing to concede some issues to the other side. There needs to be a spirit of give and take. Both parties ideally will come out feeling they each won on at least some points. As the judge indicated, a settlement is not likely where a party ends up with the worst possible outcome they might have experienced if they had gone to court.

Remember, both parties will be thinking, "What's in it for me?" Successful negotiators have a good answer for that question.

Tips for Saving Attorney's Fees

Peggy Roston, who writes the Alaska Divorce Blog, recently had a brief post with some excellent common sense ways to cut down on attorney's fees. Most people going through a divorce or other family law issue are interested in conserving their funds and not over-spending for the attorneys. Here are Peggy's ideas:

"Divorce litigation is extremely expensive. Your attorney will charge you for the time he or she spends writing and responding to letters, emails, and motions. Some of the time your attorney has to spend on your case is unavoidable. But there are a few things that you can do to help your attorney handle your case in a cost-effective manner.

"• Communicate by e-mail rather than by telephone. Telephone calls tend to be more expensive because of the pleasantries exchanged before you and your attorney get down to business.

"• Keep your e-mails short and to the point. Your attorney may receive hundreds e-mails a day. If you keep your emails short and to the point, your attorney can respond quickly to the issue you have raised without having to wade through a lengthy email.

"• Organize your financial documents before you give them to your attorney. Parties in a divorce case must exchange tax returns, credit card statements, brokerage statements, bank statements, and personal property lists. Respond promptly to your attorney’s request for financial information. If you have personal or work time-constraints, I suggest you call your attorney to ask for a referral to a financial professional who can help you out. Having organized financial documents can save you hundreds or possibly thousands of dollars in attorney’s fees or paralegal fees and can keep your case moving forward."

In general, clients can save money by controlling their urge to call up their attorney to discuss every issue that comes up. It also helps to save money when clients take on as much of the preparation as they are competent to do. Gathering and organizing records is vitally important and can result in a signifcant saving of money.

Has anyone else come up with good ideas on how to save attorney's fees? Please send your comments with suggestions.

Responding to Provocation

I have just run across a new (for me, at least) blog called the Fresh Start After Divorce Blog, run by the National Association of Divorce for Women and Children, which had some really good, practical advice and inspiration for dealing with the transition from marriage to single person. Ellen Kellner wrote a recent post entitled "How NOT to React to Your Ex!" which I reprinted below. Her advice can work equally well for men or women.

"What is the cinching element to The Pro-Child Way? Mindfulness. It’s that moment where you stop reacting to your ex and let the stillness guide your heart. It’s the breath in, before you say something spiteful about your ex in front of your child. It’s the glance downward towards your child, before your eyes start rolling up in aggravation. Mindfulness is an opportunity – an opportunity that opens your awareness to choice.

"Mindfulness leads to the other way: the Pro-Child Way. Whereas another divorced-parenting path may have been previously obscured, mindfulness opens your eyes to other possibilities. Your challenge is to be aware that this other path exists and then recognize the opportunity before you pass right by it. Why bother? Because you have a child who needs to be considered.

"Thankfully, when it comes to divorce, we get many, many opportunities to practice mindfulness. If you’re lucky, your ex may be a jerk several times before noon – all lovely opportunities for mindfulness practice!

"After the first 'ex' incident, when you react with full divorced passion, do you find a moment when you think, 'hmmm, maybe I shouldn’t have said that.' If you do, grasp that moment: this is the call of mindfulness. Reaffirm that inkling, by saying, 'yes, I should have stopped before saying that.' And then move on, this isn’t about guilt trips!

"How much practice is it going to take to shorten the time between your ex’s provocation, and your realization that maybe you shouldn’t blurt out what’s on your mind? If you can come to that conclusion in an hour after the crime, why not in 10 minutes, or in 5 seconds? When you catch yourself reacting BEFORE you do it, not only will the angels sing, but also your ex’s mouth may drop. That’s when you can smile. That’s when you’re recognizing an opportunity for mindfulness.
So what’s next? Your ex just said something and you’re standing there smiling. Clearly, someone’s gotta do something next. This is the real beauty… you can choose! The possibilities are fun. In the flash of your smile your wonderful brain can create a zillion responses. As it discards the ones that will land you in jail, the more caring responses rise to the top. Slightly problematic are the times when the nurturing response is elusive. It happens. Here are two good standbys to have in your 'do' list:

"Do keep smiling, turn, and walk away from your ex.

"When you become better at multi-tasking, add vocal to the smile/turn/walk routine. Do sound 'hmmmm' then smile/turn/walk away.

"In your mindfulness, it’s much better to choose to say nothing than to react with an under-processed thought. It really doesn’t matter if your ex thinks you’ve lost it. It isn’t your ex’s opinion that matters anymore. Your child will benefit from your practice of mindfulness, and you will too. It’s from this point that you can start your journey down The Pro-Child Way."

A special thanks to my friend Sam Hasler of Sam Hasler's Indiana Divorce & Family Law Blog for the tip to read this blog. I agree with him that it is worth watching. I can recommend it to both women and men, despite the title. It won't help some people, but I can imagine a lot of men and women will feel better and more hopeful after reading some posts.