Lawyers are counselors

That doesn’t mean we are therapists, but sometimes we need to think like one. That’s largely because it’s difficult to conduct any divorce settlement through the three types of divorces—litigation, divorce mediation, and collaborative divorce—without the emotional component playing a factor, large and small. If you know there will be a certain level of emotion within your divorce, collaborative divorce offers the best resources for a smoother resolution.

Why not divorce mediation? Essentially, divorce mediation is more about the numbers and couples coming to a resolution about division of assets, support and, if applicable, a parenting plan and schedule.  That’s not to say that emotions don’t run high in mediation, but most of my clients have reached a point where they can set those emotions aside in the interest of a shared goal to reach a resolution.

As for litigation, the emotional component is so strong that both parties communicate primarily and sometimes exclusively through their attorneys. In fact, litigation often heightens conflict because it encourages parties to take extreme positions in the hope of getting an advantage with the judge.

Collaborative divorce has a number of built-in tools to address the emotional component.  First, most collaborative divorce teams include a divorce coach/facilitator. This professional, typically somebody who has some sort of counseling background, takes the initiative to meet individually with both spouses before the first team meeting to get a read on what led to the break-up and how he/she communicates with his/her spouse. This is not a therapy session but more of an exploration of the triggers that can lead to emotional reactions that can derail a negotiation.

For example, perhaps one spouse tends to talk in a condescending tone or roll his/her eyes to the agitation of his/her spouse. This can take a civil discussion into another direction if not addressed. The divorce coach can make one spouse aware of this habit and help him or her to try to avoid triggering the other. The coach can also work with the other spouse to develop techniques to prevent the triggering behavior from distracting the negotiation.

In addition to coaching the parties outside of the meetings, during the negotiation meetings, the divorce coach will pay attention to any the signs that emotions might be rising. The coach has a variety of techniques to redirect the parties (or attorneys) if their verbal or nonverbal contributions are counterproductive.  Other collaborative divorce team members—e.g. attorneys, financial professionals, accountants, etc.—also provide an extra set of eyes and ears.

The collaborative process post brief is another way to assess the emotional dynamics in a negotiation.  After each meeting, the attorneys meet with their respective clients to see how they are feeling.  Next, the professional team discusses the clients’ reactions and different aspects of the session. The emotional component will be one of those. How did the couple interact, and could it be better? Should we change something for the next meeting? These are all variables that are discussed and scrutinized.

A recent negotiation had a divorcing couple seated across the table from one another. This had a negative impact on one spouse, who never lifted her head up when she spoke, averting eye contact with her soon-to-be ex. In our post-meeting session, the team noted this and decided to sit the two diagonally from each other rather than directly opposite to have more an open discussion. The divorce coach also followed up with each party with feedback.  This improved the communication in the next session.

Preparation stands a key component of a smooth negotiation meeting. The best tool for that is a prepared agenda distributed to all parties well in advance of the session. Even more important is the collaborative divorce team sticking to that agenda. Introducing topics not mentioned on the agenda can blindside one or both parties and heighten emotion. Worse, it can create ill feelings and counteract the productive portions of the session.

Third parties can also have a negative impact on a divorce negotiation and heighten the emotional element. During my career I have been part of many productive and meaningful negotiating sessions where both parties seemed in agreement, only to come back to the next session where one spouse had talked to a family member/friend and did an about face.

Part of the role of the divorce coach is to get a sense of each spouse’s sphere of influence. This is not an easy task as the impact of third-parties may not be noticeable at first. Yet once a determination is made about a third-party, the divorce coach and team can help that particular spouse decide whether his/her concerns are being addressed–or the ones of the friend or family member—and who, ultimately has to live with the outcome.

At the end of the day, YOU have to be able to live with the divorce agreement you and your spouse come up with today and years from now. While getting a divorce is an emotional event, you will be better served if you can remain in control of those emotions to make sound decisions for your future. If you have a divorce where you suspect emotions might get the better of you or your spouse, a collaborative divorce with a divorce coach/facilitator as part of the team can really make a difference.

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