Category Archives: Collaborative Law

Supporting Divorce Recovery

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Writer, Abigail Trafford once said that divorce is “a savage emotional” journey.  Trafford is but one of the scores of people who have studLicking.woundsied the “divorce recovery process” over the past two decades.  Noted researchers like Judith Wallerstein and Mavis Hetherington as well as leading divorce mediators like John Haynes all agree that the period of “divorce recovery” is about 24 months.  This means that, if allowed to move through the expected steps from separation through a sense of “being okay” and free of the psychologically intense and depressing forces of divorce, most people will take about two years to complete that process.  However that caries with it a big “if.”

If people are allowed to proceed through the process of divorce and not gouge additional psychic wounds in each other in the process, most people will be through the journey in two years.  (That, by the way, doesn’t mean that they will be miserable for two years.  Most divorce experts say that the acutely painful passage occurs in the first six months.)  However, here’s my biggest beef with conventional divorce litigation.  It has been my experience (time and time again – seen throughout the 25 years I’ve been doing this work – first as a lawyer and now as a mediator and counselor) that the conventional divorce process does inflict avoidable damage on both people.  The shame of it is that these poor folks have to devote psychic energy to licking the wounds that are gouged by the divorce process. This leaves them with fewer internal resources to manage the natural progression of divorce recovery.  It will prolong the period of intense distress beyond the normal six months and stretch the entire divorce recovery process out to beyond the natural 24 months.

Divorce hurts.  It is the most stressful experience that many will ever undergo in their lives.  The process of stabilizing a new sense of self; managing the intense emotions and solving a myriad of practical challenges are daunting.  My advice: Find professionals who will help you make good decisions and support you in the tasks of this life transition who will not contribute to prolonging the pain.

My Two Big Beefs – Part I

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There are two subjects that always make me jump on my soapbox.  (I might even wave my hands around like the little guy here.) 

First, the court’s are an atrocious forum for resolving marital disputes.   After all, how are lawyers trained?  Law school is a three-year course in “the case method” of teaching law, which is over 100 years old and still going (fairly) strong.  In this model, students read written opinions from appeals courts and learn how to support each side.  Our legal system is based on this “adversarial method of conflict resolution” in which each side  promotes their side aggressively, secure in the fact that they don’t have to worry about the other side because they have their own representative promoting their side aggressively.  Well, suffice it to say, if I were ever charged with a crime, I’d want one aggressive individual fighting for me.  Yet, when intimate couples fracture their relationship, the intensity of individual vulnerability and wounding on both sides his breathtaking.  The triggers that caused each person to become flooded by anger – or fear during the marital fights are no less sensitive when they commence upon the road to divorce.  If anything, the vulnerability is even more exquisite.  How cruel, then, to subject these poor people to the violations that are inherent in legal advocacy.  Making the private pains public – subjecting individuals who are going through the soul-searing doubt of divorce to public revelations, criticism or outright attack is nothing short of torture.  Adversarial lawyers speak of protecting their client’s rights.  I would say, “protect from what?”   The answer can only be the other person who had been their intimate partner.  This is the individual who has seen us at our least guarded; with whom we shared sexual intimacy and who knows our deepest fears.  We thought this person would hold this information in trust and yet they become weapons to persuade a person in a robe to give them what they seek.  The minute we tell someone we will “protect” them from this other person, we have created an environment of paranoia which, in most cases, can only do ill.  Courts are a too-blunt instrument for the exquisitely sensitive task of helping people dissolve their intimate bonds.

Law as a Healing Profession

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I was fortunate recently to be asked to write an article for the Washington State Bar monthly magazine about the new trends in law and how they contribute to civility in the profession. I thought I’d reproduce it here because the theme of law as a healing profession is so important today.

Starting in around 1960 and continuing through the ‘80’s, the practice of law was marked by the ascendancy of litigation as both the engine of economic growth in the profession and the prevailing ethic. Competent, smart, hard-working and, above all, tough – these were the values which permeated our professional world. Aggressive was good, results (measured in monetary terms) were paramount. Adversarial litigation exploded as a practice form, and with it came the concomitant rise in interpersonally destructive behavior. The oft-referenced rise in incivility among lawyers was both striking in its metastatic growth and often shocking in its brazenness. Isolated voices would express concern about the law’s shift from a “profession” to a “business” and its effect on the well-being of both the lawyers and the clients they served, but during this time they remained just that – isolated. But in the late ‘80’s and early ‘90’s, these voices coalesced into what law professor Susan Daicoff has called the “Comprehensive Law Movement.”

If there is one driving force behind this, now formidable, movement within our midst, it is the recognition that law should not be an instrument for inflicting avoidable personal (and interpersonal) damage in the service of reaching a specific “legal” objective. Indeed, if there is one theme which is shared by these approaches to practice, it is that when we can manage to turn down the heat generated by adversarial conflict, we are actually able to arrive at solutions which are far more satisfying to our clients. It is about the ascendancy of civility in how we conduct our affairs – not just to be “nice” but to achieve effective results. The various “vectors” of this Comprehensive Law Movement include:

• Collaborative Law: Arising 20 years ago from the creative mind of Stu Webb, a Minnesota family lawyer, Collaborative Law is predicated on the notion that the last place to resolve disputes between wounded, divorcing individuals is an adversarial litigation process. In Collaborative Law, all professionals and the clients sign a contract explicitly abandoning litigated adjudication as the means for resolving disputes. There is a generous use of neutral professionals to support the individuals in managing their emotional challenges, making parenting decisions and untangling their financial community.
• Therapeutic Jurisprudence: In 1990, law professors David Wexler and Bruce Winnick began to write about the various psychologically destructive consequences of legal action. They explicitly joined the social sciences of law and psychology in an effort to enhance the therapeutic possibilities inherent in both legal process and result. Starting in the mental health courts, TJ (the subject of more than 600 articles and 18 books) has had a significant impact in such diverse practice areas as workers compensation, sexual orientation law and business negotiation.
• Transformative Mediation: First discussed in a 1994 book by law professor R. Baruch Bush and communications professor, Joseph Folger (The Promise of Mediation) this form of dispute resolution seeks to fashion a resolution that reaches beyond a settlement of the legal issues between parties. Baruch and Folger emphasized the promotion of each party’s empowerment and voice and the recognition of each party and their concerns by the other. TM, at its highest expression, explores the power of empathy and forgiveness, making mediation a vehicle for growth and reconciliation.
• Restorative Justice: More than 25 years old, RJ is founded in the criminal justice system. It is an avenue for healing between the criminal offender, the victim, and their community. It is founded not on adjudication of guilt and sentencing, but rather upon dialogue, future problem solving and, critically, the offender’s acceptance of accountability for his/her conduct and the damage which has resulted. RJ seeks to heal the deep rift which arises from the commission of criminal acts.
• Holistic Justice: Again, from the single seed from the brain of attorney Bill van Zyverden, Holistic Law seeks to “promote peaceful advocacy…encourage compassion, reconciliation, forgiveness and healing.” HJ emphasizes the spiritual elements of dispute resolution. The International Alliance of Holistic Lawyers is a vibrant, 20 year old organization.
• Humanizing Legal Education: Florida State law professor, Lawrence Krieger, authored an influential research report on the destructive impact of the law school environment on the well-being of law students in the early ‘00’s. His observations found a very enthusiastic audience in the legal academy and today there is a section on Balance in Legal Education which seeks to encourage and support avenues for law students to strengthen their resources for dealing with stress and deepen their interpersonal skills.

Back in 1974 we used to talk about law school as training to become “high speed legal tools.” This led to troubling blindness to a fundamental truth – we, lawyers, are people. Our clients are people… with dreams and troubles and a fundamental need for connection. During the last 20 years, our colleagues, by the thousands, have striven to sculpt a new and different profession which is wiser and more civil – not because it is nicer, but because it is a return to our roots as lawyers as counselors and supporters of our clients’ lives and endeavors.

Collaborative Lawyers – A Different Type Indeed (Part II)

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(I’d suggest you check out Part I of this 2-part post to get the foundation for what I’m going to be talking about here.)

So…..where was I?  Ah, yes – we have some really good information about lawyers and the kinds of temperament categories they tend to fall into.   Larry Richard’s huge study of lawyers and psychological type gave us a ton of insight.  The first interesting bit is that, while about 30-35% of the general population falls into the SP Artisan temperament, only  9.1% of lawyers fall into this category – definitely  the smallest percentage.  This makes sense when you think about it – as lawyers really aren’t encouraged to go-go-go and live for the moment.  While being quick on your feet and able to put out the fire is a valuable trait for a lawyer, it is much more valuable to be prepared.  The next least likely temperament you are likely to find among lawyers is the NF Idealist.  Studies have shown that Idealists experience the highest drop-out rate in law school.  The intense adversarial world of litigation (the meat and potatoes of legal practice for the last 40 years) makes the profession quite uncongenial for the Idealist lawyer or law student.  Richard found that 14.7% of lawyers were Idealists, about the same percentage as in the general population.  (Teaser alert!: There are way, w-a-y, more Idealists in the Collaborative Lawyer sample – see below.)  The next most common temperament among lawyers today is the SJ Guardian – the conservative, pillar of the community, who is preoccupied with everyone doing the right thing.  Of the 16 personality types, the one with the greatest presence (17.8% of the total) is one of the 4 Guardian types (ISTJ).  Fully 35% of the lawyer population are Guardians.  I would suggest that this temperament reflected the prevailing approach to work and life of the lawyer community in an earlier era, before the “law as a business” crew came into prominence about 40 years ago.   This also pretty much tracks the number of folks in the general population, in which 40-45% (by far the greatest percentage) are Guardians.  Finally, the NT Rational accounts for 41.2% of Larry Richard’s lawyer study population.  This makes sense!  Lawyers are focused on the outcome, are encouraged from their first class in law school (and throughout their careers) to be logical, dispassionate and technically brilliant.  In any battle between the head and the heart with these people, Head Wins.  Every time.  What is particularly striking is that in the general population, only 5-10% are Rationals.  I’ll leave it to you to ponder the significance of such a huge majority of lawyers tending toward a temperament that a meager part of the general public shares.  Now, here is where Collaborative Lawyers are such an anomoly.

In the early Spring, I conducted a Myers-Briggs workshop for members of the Puget Sound collaborative community.  Lawyers, mental health professionals and financial specialists all took part – yet the vast majority of this group (22 of 32) were lawyers.  Each person completed the Myers Briggs Type Indicator Self Scoring Instrument.  Of this group, not-a-one demonstrated an SP Artisan or SJ Guardian temperament.  Of the 22 lawyers, only 5 demonstrated the NT Rational temperament that is so dominant among lawyers nationally and 17 of the total (77%) were NF Idealists.  Given that the general lawyers population is comprised of only 14.7% Idealists, this difference is pretty amazing.  (I realize our sample size was rather low, but still…….this difference is, well, ponderable.)

So what can we make of this?  Well, for starters, it explains the intensity and passion with which most collaborative lawyers embraced this form of practice.  The damage inflicted by conventional litigated divorce would be of particular distress (both professionally and personally) to people who tended towards an NF Idealist temperament.  My observation is that a great number of Idealist lawyers are terribly unfulfilled with their profession.   Anyone who responds to the phrase “law as a healing profession” will find the aggressive, adversarial, “my client over all, regardless of the damage to others” ethos of  today’s legal world very disheartening, indeed.  When collaborative law came around, you can imagine it seeming like an oasis for the NF Idealist family lawyer community. 

Also, an approach to conflict resolution that seeks to address the interests of all is quintessentially NF.  The collaborative Participation Agreement, in which peoples’ good faith forms an explicit cornerstone is, again, characteristic of NF law practice.   When we tell our clients that we expect them to bring their best selves to this challenging process – and that we will help them be their best selves – we are acting as Idealist lawyers.   In many ways, Collaborative Practice provides a  home for many exceptional, caring people who might otherwise have drifted away from this wonderful profession – which provides so much opportunity to do good without harming others.

Small wonder that 77%  of the lawyers (and a similar percentage of financial experts and (of course) mental health people) within our collaborative community are drawn to the Idealist temperament.

The Passing of Bruce Winick

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A client I’m quite fond of has felt unfulfilled with his career.  He’s got a wonderfully sharp, analytic mind and so I asked him if he ever considered law as a career.  He scoffed – commenting that lawyers suffered from an impaired moral sensibility.  While that’s an all-too-common belief (and at times, well placed) that moment put me in mind of a truly lovely man, and a great lawyer.  Bruce Winick died last week.  His life was the response to anyone who believed you could not be a lawyer and possess kindness and integrity. 

Winick may be best known as a co-founder of Thearpeutic Jurisprudence, the exploration of the psychological impact of law on individuals who are swept up in its process.    How is legal process harmful to our spirit?  How can the law be improved so that it inflicts less personal damage?  Winick and David Wexler counseled years ago in their initial work not to forget that legal involvement has profound emotional and psychological consequences.   They can be justly seen, and thanked,  as the forebears of Collaborative Law.

I sat next to Professor Winick a couple of years ago at a law teachers’ conference and, while he was perhaps the most eminent of the participants, he was gracious and warm.  His eyesight had been stolen by the illness that took his life last week.  He managed quite naturally and with good humor.  I recall his description of a fairly new form of (humane) legal analysis which he called a legal autopsy.  “What would happen,” he asked, “if we rewound some bit of case law (a conflict that had made it all the way to an appeals court) and explored if other choices could have been made, early on, to spare the participants the ravages of prolonged, intense, litigation?”  He authored a riveting account of the Terry Schiavo case to illustrate his point.  What to  most of us was a political flash point around the “right to life” debate, was, in Winick’s deft hands, a tragic story of a family ripped apart by many early decisions made with the help of lawyers for whom litigation was the only tool they knew.

We lost a fine man last week.  His passing should be noted in the collaborative law community.