Divorce Mediation & Collaborative Divorce Articles

We hope you find our articles relevant and informative. If you have questions about divorce or any other family law matter, please contact Susan Lillis for a consultation or call (978) 356-2934 ext. 12.

Communication and divorce mediation

image for divorce mediationMany marriages break down because of a lack of communication or poor communication. So if a marriage can’t last due to bad communication, how can you expect those same two people to sit in a room and come to an agreement in divorce mediation? Does a neutral third-party mediator make that big of a difference?

Yes, it does.

How a divorce mediator makes a difference

Think of any argument you may have had. Would a third person in the room have changed the dynamic, perhaps making the discussion less volatile? Probably. With a divorce mediator, you have a neutral third-party who is a trained negotiator with specific credentials. Add to those variables the fact that both you and your spouse are there with a shared goal in mind—to reach a fair settlement to end the marriage—and many of the communication obstacles experienced during your marriage are neutralized.

Those elements lay the foundation for negotiation, yet the potential to fall back into bad communication patterns exists. That’s where the skill of the mediator comes in. It’s his/her job to direct the negotiation from positional—e.g. “I want the children 50 percent of the time—to interest-based—e.g. “I want to be a good parent. If I spend less time with the kids, I’m worried they won’t like me as much and eventually won’t want to come to my house at all.”

The difference in positional versus interest-based dictates the tone of the negotiation. Positional essentially paints one party into the corner—e.g. I will only be happy/agree if I have the children exactly 50 percent of the time. Interest based—e.g. I want to have a quality relationship with my children and to be part of their lives on a regular and consistent basis—opens the door to numerous possibilities during the negotiation. For example, if exactly 50 percent does not make sense either because of the children’s or the parent’s schedules, perhaps the settlement could include additional parenting time during the week or a different schedule during summer break or during winter vacations. Or both.

That’s just one example. But the mediator can refocus the negotiation by finding out what’s important to both parties and using that as the basis of the discussion and coming up with solutions.

Besides the focus, the mediator seeks to diffuse old communication habits that circumvent discussion. For example, the parties may trigger reactions from each other just by their body language.  One person may roll his or her eyes when their spouse says something not to their liking. The mediator, as the quasi communication coach, can acknowledge the eye roll but try to convert it into a meaningful discussion.  For example, “You don’t seem to be receptive to that suggestion, can you explain why?”

Another way the mediator reads body language is to assess when a heated conversation is productive and when it is not. In a one-on-one discussion/argument during their marriage, a couple might continue to go at it even when the body language of one person is clearly not responsive. The neutral, third-party mediator can read the body language and call for a break if necessary. In 20-plus years as a mediator, it’s amazing to see how stepping away from the negotiating table and collecting your thoughts can refocus the discussion.

Another common communication trigger is when discussion sounds more like accusation.  For example:

“You never listen to what I say.”

While that may or may not be true, the accusatory nature of the statement is likely to put the other person on the defensive. A mediator might guide the spouse who made the statement to instead say something like this:

“I feel like you never listen to me.”

Rephrasing that statement gives ownership to the person who said it instead of putting it on the lap of their spouse to refute. It then becomes the feelings of the spouse who said it. It may seem like a small thing, but it can prevent stalls in communication and a “he said/she said” argument.

The mediator is the main reason why couples who could not communicate during their marriage find a way to do so during a divorce negotiation. Yet the intent of the couple divorcing is a factor as well. After all, most divorcing spouses enter into mediation because they are looking for a less contentious and cost- effective way to get divorced. By starting essentially on the same page, it creates a better platform to begin the negotiation.

So, not only is it possible for couples who could not communicate well during their marriage to do so in negotiating a divorce, but many couples leave mediation with a better understanding of how to communicate with each other going forward. Frankly, the tools and the communication skills divorcing couples develop during this process could save thousands of dollars in future legal fees as exes can now work things out without a trip to court.

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Communicating to get divorced

Road SignsHow many couples point to a lack of or the breakdown of communication as the reason for their marriage ending? Without any hard data, I would have to say most. Yet, it’s ironic that many couples finally learn to communicate with each other as part of their divorce, particularly if they choose collaborative divorce.

The collaborative divorce model puts a premium on communication. That includes spouses speaking directly to each other as part of the negotiation. You will not find that in other types of divorce where attorneys do all the talking.

You’re probably wondering how successful collaborative divorce could be if it relies on people who probably weren’t very good at communicating with each other negotiating important issues directly. Quite simply, the collaborative divorce model includes a coaching element where we work with each spouse on how to communicate with their ex within the process. With most collaborative divorces, there will be an actual “divorce coach” on the team whose job it specifically is to help couples communicate better throughout the process and afterwards.

Part of that coaching involves the divorce coach sitting down with each spouse individually and reviewing the way they have up until this point communicated with his/her spouse. That includes discussion of the things his/her spouse says or does that pushes that pushes his/her buttons and also the things that he/she does to push his/her spouse’s buttons.

For example, maybe one spouse speaks in a condescending tone and that puts the other spouse on the defensive. Maybe there’s certain body language one spouse uses when speaking to the other that indicates that either he or she is not listening. The divorce coach, in speaking to both spouses, tries to help the parties understand how all those past behaviors could interfere with communication during the negotiation.

This coaching serves many purposes during the negotiation. First, by putting those issues out on the table, the divorce coach can now give each spouse the tools to address these communication issues. It could be as simple as starting a sentence with “I” rather than “you” or developing a catch phrase so the other spouse knows to pay close attention to what is being said. For example, one spouse could start key points by saying, “I feel it’s important that…”

While tools can improve communication during the negotiation, it does not preclude spouses from reverting to old habits. That’s when the divorce coach’s expertise is even more important. By noticing the tone, body language and other indicators, the divorce coach can intervene if he/she feels things are about to get heated or take a negative turn or unproductive turn. Often, a short break for the spouses to regain his/her composure is enough to prevent a breakdown in the negotiation.

With the divorce coach as the communication guardian, the negotiation can better focus on the issues on the table. Hopefully, that leads to a more satisfactory result for both parties.

For couples with children who will be co-parenting for years to come, working with the divorce coach provides a wonderful tutorial on how to communicate going forward. The tools used during negotiation can just as easily be used by exes when discussing potentially contentious topics like holiday schedules, weekday visitation and other issues. Quite honestly, these tools and the communication skills divorcing couples develop during this process could save thousands of dollars in future legal fees as exes can now work things out without a trip to court.

More importantly, this new kind of family—with communications ground rules in hand–will be able to function more effectively, even harmoniously. Yes, a collaborative divorce still represents the end of a marriage. Yet for many couples, collaborative divorce can save (or at least improve) the future relationship.

 

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How long will my divorce mediation take?

image of divorce mediationIt’s a question that’s asked quite frequently. The answer is pretty standard:

“That depends.”

Couples often choose mediation based on the presumption that it will be faster than going through litigation. Typically, that’s correct, but not always.

Factors arise in divorces of all kind—litigation, mediation and collaborative—that can prolong negotiation. “That depends” is my stock answer because it really does depend on the motivation of the divorcing couple to do the homework and participate in the process.

As a general time statement, a divorce mediation will take four to six months. During that time period, the following will take place:

  • Parties will exchange a comprehensive list of financial records
  • Three two-hour negotiation sessions will be held
  • Parties will prepare their financial statements and I will prepare the paperwork to be filed with the court

The negotiating sessions are approxmimately a month apart, which I do for many reasons. The first reason is that negotiations tend to produce action items for both parties. So, the divorcing couple will need some time to track down financial and other records, prepare budgets and financial statements and sometimes hire appraisers.

Another is emotions. While we try to keep the negotiation civil, it’s an emotional process. We are talking about the end of a marriage. A month between meetings can provide enough time for both parties to adjust to changes and get their composure, if needed.

Of course, couples who come in with their financial documents organized and complete and who have verbally discussed and agreed to most of the larger terms of the divorce can settle even faster. Four months really is generally the minimum amount of time for a fully prepared couple who agree to reach a settlement.

Except for one previous couple.

In my two decades as a mediation attorney, there was one couple who resolved their divorce in three months. The even more amazing part of their speed was that the couple had a business together. Yet when we began mediation, their financials were complete and they had already agreed in principle on virtually everything. It was essentially a matter of going over the details, fine tuning the agreement that they had reached and putting it all in writing and signing.

Yet if you’re reading this and thinking that could be my spouse and I, that’s probably not the thought process you should take into any negotiation, particularly a divorce.

As mentioned in previous blogs, your divorce must be something you can live with not only at the time you sign it, but for the rest of your life (and hopefully that’s a very long time). Rushing through your divorce to save some money on legal fees is penny-wise and pound-foolish. Actually, it’s not even penny-wise as an agreement that’s not carefully thought out and executed may eventually end up before the judge as a contempt action or for modification. And that’s what you were trying to avoid in the first place.

If you and your spouse are concerned about timing and costs and have chosen mediation for that reason, that’s fine. But be ready to put in the work. Get your financials in order. Be responsive to requests for information. Be willing, ready and able to negotiate, realizing you may not get everything you want. Come into the negotiation having thought about not only what you want but what you can live with. With this outlook and commitment to do the homework, four to six months is very reasonable timeframe.

While you can reach a settlement a little before that four-to-six month window, it’s also possible to extend far beyond if you are not willing to do the work. Or, if other circumstances come.

I have had cases where we began mediation and then I did not hear from the couple for many months (in a few cases, more than a year). In most of these cases, some things happened during the delay (the sale of a house, or trying out a parenting plan) that made it easier to reach a resolution when they resumed negotiations. The downside was that when negotiations reconvened, it was almost like starting from scratch. All the financial documents had to be updated and financial statements revised.

So if you and your spouse opt for mediation, you need to realize it’s far from a “quickie” divorce. It will take work, negotiation and compromise. But if you’re intent is to reach a settlement that works for both of you, your best bet is to put away the stop watch.

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Collaborative Divorce – Why everybody wins by participating

wicp-sign-participationThe benefits of collaborative divorce appeal to many divorcing couples. Those benefits include: private negotiations; in general, shorter period of time to reach a settlement; and, consequently, smaller legal fees. Those benefits, however, come with a commitment: you have to participate.

A participation agreement is something I make every collaborative client sign and participation goes far beyond his/her physical presence. The participation agreement means you agree to:

  • Provide full and honest disclosure of all financial information.
  • Share information freely and work towards an agreement.
  • Preserve the status quo (e.g. no selling off marital assets during the course of the proceeding) unless there is an agreement otherwise.
  • Negotiate in good faith, take reasonable positions and accept that compromise is inevitable.
  • Work with neutral experts should that be deemed necessary

Ultimately, the participation agreement is about respect. Respect for yourself, your spouse and, mostly, respect for the process.

It’s not lost on collaborative divorce attorneys that the prospect of not going to court and potentially reducing the time it takes to get divorced and legal is what draws a lot of people to collaborative divorce. The participation agreement makes it clear to couples that you will have to work and put forth an effort to reap the rewards of those benefits.

Sometimes, the “I don’t have to go to court for my divorce” mentality comes with  a winner-takes-all attitude towards the divorce. In collaborative divorce, we like to say everybody wins, largely because nobody loses.

In collaborative divorce, you need to understand you will not get everything you want. In a certain sense, you should not want to “win” because that will mean your ex  “lost.” That can lead to some bitterness that will permeate your relationship going forward. If you have children that can lead to potentially ugly situations, even a return trip to court—the very thing you were trying to avoid.

You should enter into a collaborative divorce hoping for the best but expecting to have to compromise. You should also have an idea of what you want, what you will accept and what you can and can’t live with. That’s why people with winner-take-all approaches to collaborative divorce can sometimes end up in litigation because they are not willing to accept less than what they want.

In all the years I have been practicing collaborative divorce, there has been only one instance where we could not reach a resolution and the case went to litigation. That’s a pretty high percentage and one I take a lot of pride in.  I like to think  it’s largely because of the work done in the initial meetings and explaining how the proceedings will go and, of course, the participation agreement.

To request a sample copy of a typical participation agreement, please e-mail me at lillis@domesticlaw.net.

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Why people haven’t heard of collaborative divorce

Most people haven’t heard of collaborative divorce and that usually presents a great opportunity for me to talk about it.

For example, at a recent holiday party, I was talking to an attorney and her husband. She had heard of collaborative divorce, though she did not practice it. But her spouse, a seemingly intelligent and educated man, had no idea.

After sharing some information on collaborative divorce, the conversation moved on to other topics and I didn’t give it a second though until the drive home. Then, I started to really think about why more people do not know about collaborative divorce.

The most obvious explanation is that unless you are either going through a divorce or been divorced, there’s really no need for you to know. Yet with more than 50 percent of marriages ending in divorce, it’s still difficult fathom why more people don’t know about collaborative divorce.

One reason could be that collaborative divorce attorneys typically get business by word-of-mouth from people who have been through the process. You are not likely to hear many of us advertising on the radio or TV.

While lack of media exposure could be a reason, it probably has more to do with people’s reluctance to talk about their divorce—unless the proceedings are going poorly and/or are drawn out. So, you might say that collaborative divorce’s lack of notoriety is a byproduct of its many benefits.

What are those benefits? For starters: privacy.

Collaborative divorce takes place in conference rooms, behind closed doors in confidential meetings. The only time collaborative divorce “goes public” is when the final agreement is submitted to the courts. In litigation, virtually everything is public and you have to make your arguments before the judge, who will ultimately make the decision.

Drama is another reason. Or when it comes to collaborative divorce, a lack of drama.

By its’ very nature, couples choosing collaborative divorce generally agree on the basic terms of the divorce. The divorce settlement becomes a negotiation of the specifics. That’s probably why you will never see a movie with a collaborative divorce as the backdrop.

On the other hand, a movie like Kramer vs. Kramer, with its dramatic custody verdict, won five Academy Awards.

That doesn’t mean there’s no drama or tension in a collaborative divorce case. Far from it. But in a collaborative divorce, couples work with professionals ranging from psychologists, divorce coaches, financial professionals, etc. so that drama can be mitigated and avoided.  That’s why a large part of the collaborative attorney’s job is to maintain the focus of the negotiations. If emotions begin to run hot, there are enough professionals in the room to call for a break before anybody loses his/her composure.

Collaborative divorce’s name recognition also “suffers” from the efficiency of the process. Typically, a collaborative divorce and take between six to nine months—with exceptions being cases where one or both spouses do not provide financial and other documentation in a timely manner.

In litigation on the other hand, you are barely beginning process at six months and a final divorce decree will probably take close to two years. The added time certainly does not help people going through a major life change to find closure. Quite often, it involves reopening wounds and that can increase the bitterness. And that’s when people tend to vent.

The added time can also mean added legal expenses. That can add to the bitterness of a divorce and, you guessed it, more venting.

In fact, that may be the very reason right there: venting, or lack thereof.

The outcome of a collaborative divorce is literally in the hands of the divorcing couple. Each party will come in with a vision of what they want, a thought in mind as to what they will accept, and, finally, a worst-case scenario they can live with. What keeps or diminishes the amount of venting is that, in the end, the decision of what you agree to is yours and not some third-party.

As I pulled into my driveway, this internal brainstorm came to an end. The average man or woman in the street may not know what collaborative divorce is. That’s not ideal but that will change. Divorcing couples should have as much say and control at the end of their marriage as they did in the beginning. Collaborative divorce is really the only way to make that happen.

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Must reads for divorcing couples

article-0-05707195000005DC-856_468x309It’s been said that nothing can prepare you for divorce. Emotionally that can be true. From a practical standpoint, you can prepare yourself for the type of divorce you want and what you might expect after making that choice. That’s why in addition to filling out questionnaires, I send my prospective clients to my blog before meeting with them.

While I try to make all articles on the blog relevant for divorcing couples, some offer that “what to expect” element better than others. Those articles are as follows:

Is there a type of person who shouldn’t use collaborative divorce or divorce mediation? – The title is self-explanatory. There are certain personality types for whom collaborative divorce or mediation are not the right options. This article reinforces the expectations for when you take part in either collaborative divorce or divorce mediation.

Read the article

Setting the boundaries for a smooth divorce – Again, this article is of the “what you can expect” variety. It also highlights some of the ways you can avoid negotiations from becoming contentious.

Read the article

A guaranteed way to reduce your lawyer bill – In a divorce, time is money. Specifically, your attorney’s time is money. Divorces where parties do not have all their financial statements and other paperwork prepared will typically result in more hours for the attorney, resulting in a larger legal bill.

Read the article

5 common missteps in mediation – Perhaps the first paragraph of this article says it best, “In mediation, there’s an overall assumption that both parties are reasonable and are willing to work together to reach an agreement. In addition, it is not uncommon for at least one of the spouses to be anxious to get through the mediation in order to put the divorce behind him or her. This can sometimes lead spouses to assume that some that details of the mediation agreement do not require a high level of attention, or that if something important comes up later they will be able to discuss it with their ex spouse and come to a reasonable arrangement. Unfortunately, these assumptions can lead to the more common missteps in a divorce mediation.”

Read the article

Life and death divorce matters – Life insurance for your spouse is an important matter in a marriage. It becomes just as important in a divorce. Particularly when there is child support and spousal support or alimony involved. This article takes an in-depth look at an often overlooked part of any divorce.

Read the article

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Can your divorce be like your wedding?

cakeThe short answer to that question is “yes”. Before you think I’ve lost my mind, think about the process of getting married. The decision-making process is very much like collaborative divorce.

First, you and your spouse made a mutual decision to spend the rest of your lives together (in most cases). Then, to varying degrees, you planned a wedding based on several variables: budget, logistics, your individual tastes, family considerations, etc. Then, with help of several professionals—wedding planner, caterer, photographer, videographer, travel agent, limo service, etc.—you planned and executed a wedding and honeymoon.

How a wedding is like a collaborative divorce is that even though you relied heavily on the counsel of all those professionals, each decision was yours and your spouse’s. More couples are turning to collaborative divorce because they want the outcome of their divorce to, similarly, be in their hands.

If you’re having trouble with this analogy, let’s back up a bit.

For starters, couples make a mutual decision to end a marriage. Sure, it may have been one party’s decision at first, but ultimately you both agree to end the marriage.

Much like beginning plans for a wedding, you both have an idea of the things you want out of the divorce. For example, one of you may want to stay in the family home. Your spouse may want certain holidays with the kids. These wants and desires become the agenda for the negotiation.

In negotiating the settlement, you will work with a number of special advisors—financial planners, divorce coaches, psychologists, and your collaborative divorce attorney. These professionals are there to guide you through the process (much like a wedding planner). But each and every decision made as part of the settlement is made by you and your spouse.

In a divorce settled by litigation, it can be quite a different story. The lawyers are bound by rules and math formulas to create financial settlements, allocation of assets, parenting schedules and a number of other agenda items. For many couples who go the litigation route, very little of the final divorce agreement resembles their wish list of things they want.

Perhaps the most frustrating part of the litigation process is that it can feel like your voice is never heard, figuratively and literally. Just your attorney’s and the judge’s. While a judge you don’t expect to know, it’s difficult for an attorney you have never worked with before to really know you. And though your attorney will do his/her best, it really is an interpretation of your thoughts and feelings.

In a collaborative divorce, you truly dictate the terms of the divorce. And it can be your actual voice in the negotiation stating what you want and your choice as to the terms you are willing to accept.

To state it simply, using our wedding analogy, the divorce is ultimately what you want it to be and all the professionals involved are there to help make that happen.

Does that mean you get everything you want? Think about your wedding? Was everything exactly what you wanted? Was every person you wanted to invite there? Probably not. The same will be true of your collaborative divorce. But at the end of the day, just like before, the decisions will be made by you and your spouse. And, just like your marriage, you will have to live with the consequences—for better and worse.

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Not your typical meeting

78163618-1024x685As part of every collaborative divorce proceeding, spouses, their attorneys and a facilitator have a series of  “team meetings” to discuss  and negotiate the terms of their divorce. Even if you regularly attend meetings as part of your job, the collaborative team meeting is like no other meeting you will ever attend. Hence, you need to prepare for it differently. (more…)

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Why Ben and Jen chose mediation

Ben Affleck and Jennifer Garner mediation

Ben and Jen: Breaking up is hard to do.

That headline should probably say, “why Ben and Jen probably chose mediation”. Without knowing the two parties or being involved personally, that’s all I can do. Yet as a practicing mediator for the past 25 years, it’s fairly obvious why a high-profile couple would choose mediation: control.

That answer might surprise those of you who thought money. While even couples worth a combined $115 million may not wish to spend more than they have to on attorneys, there will be legal fees whether they settle in court via litigation or privately in mediation.  But by taking the latter approach, Mr. Affleck and Ms. Garner can control the outcome of their divorce settlement. (more…)

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Is there a type of person who shouldn’t use collaborative divorce or divorce mediation?

I’m a collaborative divorce and divorce mediation attorney. As you have read in this blog over the last several years, there are a great number of benefits to using both methods to resolve issues so that divorcing couples can reach a divorce settlement fairly and swiftly. Yet as firm a believer as I am in both methods as effective means to end a marriage with minimal hurt and stress, some divorcing couples are not suited to collaborative divorce or mediation.

(more…)

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