How to Prevent Your Collaborative Divorce Process from Failing

How to Prevent Your Collaborative Divorce Process from Failing We have all heard about people who have not reached agreements in Collaboration. We may have heard some very negative stories about the outcome of some Collaborations. How do you, as a client feel about investing time and money in a process that could possibly result in no agreements being reached? If you are fully aware of the risk factors, you can try to avoid some typical pitfalls of unsuccessful Collaborative files, and do as much as you can to ensure your Collaborative success.

1. Lawyers not properly preparing their clients

I know it’s boring to review a lengthy Agreement. I know that most people have a short attention span. But because Collaboration is so fundamentally different than other processes, it is important that you listen carefully when your lawyer prepares you for the process.

This means that your lawyer will review with you:

the various steps of the process
the commitment agreement, paragraph by paragraph (sometimes providing anecdotes to help you understand) – in a well prepared Collaboration, you will have reviewed the commitment agreement at least three times (once by yourself, once with your lawyer and once with the team at the beginning of the first meeting) before you begin Collaboration
the roles of clients and other professionals

IF YOU HAVE A QUESTION, ASK IT!!! Interact with your lawyer. Engage in a conversation (rather than just listen to a lecture).

But, that’s only the beginning! You also need to understand:

What positional bargaining is and why it is not consistent with Collaboration
Why positional bargaining is not an effective way to negotiate in Collaboration
That your lawyer is not your hired gun; your lawyer is not going to stand in front of you and shield you from your spouse, the other lawyer or the work that needs to be done. The lawyer will be at your side, helping you be your most effective, encouraging you to participate and express your interests and concerns.
That the process will seem slow at first – we do Collaboration the way we do it because if we do it right, it works! You will need to be patient!
Each step of the process, the importance of each step and the importance of following that process step by step, even though it may seem tedious
You are highly unlikely to solve matters in the first meeting. If it happens, then great; but do not go into a meeting with unrealistic and impractical expectations
Not to negotiate right away – lawyers who have a sick sense of humour sometimes call that premature negotiation! (say it real fast!)
You have to wait for all of the information to be gathered and agreed upon before any negotiations can begin – if you had stomach pains, would you allow a doctor to remove your appendix without him/her doing an x-ray or performing tests on you first? – Of course not!! This is the same thing!
It is normal to feel scared, uncertain and worried; you may be nervous and have difficulties remembering what you want to say – if this happens, your lawyer will help you get back on track.
If you slip and say something positional or try to pre-maturely negotiate, it’s not fatal – the lawyers will gently and kindly steer you in the right direction.
Your lawyer or coach may need to remind you if you are not communicating effectively, or not following the process steps – this will be done respectfully and gently.
If you “break the ground rules” or try to do something inconsistent with the process, you will not be criticized, but steps may need to be taken to try to prevent it from happening again (you might be encouraged to hire a Divorce Coach if you do not have one, or you might be asked to work with your Divorce Coach regarding this)
YOU AND YOUR EX have control (but with that control comes responsibility)
You will have to work hard to reach an acceptable solution – this WILL mean compromise.
To re-wire your brain about success in Collaboration – we define success as when you and your ex both feel like you have compromised more than the other or you are both feeling equally unhappy about the solution.
That the process is not magical; there is no “money-back” guarantee.

2. Unilateral actions during the Collaboration

There is no question that being in limbo during your negotiations is difficult. It is also sometimes repulsive or just a bother to have to consult with someone that you are trying to extricate yourself financially from every time you want to do something. Collaboration is based on team work, on both you and your spouse having equal, mutual say in the solution. It stands to reason that any decision that you make, whether it is about the children, money or assets, may have an effect on your ex. When you make a unilateral (or one-sided) action, the effects can spiral.

You need to understand:

What a unilateral action is.
That you have a “time-out” on doing anything one-sided while you are in Collaboration. That time-out is temporary only; until you reach an acceptable agreement; then you can move forward with your separate financial lives (subject to any agreed upon ongoing financial obligations)
That the goal is to move forward so that eventually you each can make your own financial decisions without consulting the other.
That because Collaboration is based largely on trust, honesty and sharing of information, refraining from one-sided actions is very important. It is difficult for you to move forward on various commitments and rely on those commitments if your spouse has done something without consulting you.
That when a unilateral action is done, we can try to resolve it in Collaboration as a pressing issue – but that takes us off our regular Agenda items and slows down the process.
That you can make decisions and take steps during the time you are in Collaboration; you just cannot do it unilaterally – this means that if you want to do something, discuss it with your ex. If those discussions do not resolve the issue, bring it to the meeting as a pressing issue to be resolved
That it does not matter that you are “pretty sure” your ex will not object to the unilateral action; even if he/she would have agreed with it if asked. The simple act of doing something unilaterally can cause damage. That is because the potential damage lies in the “one-sidedness” of the action; the fact that there was not consultation.
That this can cause problems for a process that is based on good faith and mutuality.

Some extreme examples of one-sided actions which can crater the whole process are:

moving the children
removing money from a bank account and spending it
cashing in R.R.S.P.’s or selling any other asset
changing the children’s school

These actions are sometimes either not fixable or they are so significant that trust is irreparably damaged.

Some less extreme examples of one-sided actions which may slow down the process (because your team will have to fix the issue and try to repair the lack of trust), cost more money in professional fees and require additional discussion about the nature of Collaboration and the participant’s commitment to Collaboration are:

booking holidays for the children
selling a small asset (a lawn mower, an older automobile etc.)
making an election on a mortgage (i.e. locking it in or not)
returning the children at a time different than the agreed upon time

Part of committing to Collaboration is committing to refraining from taking any unilateral action. When you are trying to decide if something is a unilateral action or not, if you are even wondering about it, it probably is. Err on the side of caution. You may even be able to build trust by being open and forthright about potential unilateral actions.

3. Not following through with agreements made in meetings

You will likely make numerous agreements (temporary and permanent) at almost every meeting prior to making your final agreements. These agreements might be for things like:

providing money to your ex or making certain payments
a parenting time schedule
giving a certain asset to your ex – i.e.) giving him or her the big T.V. or the freezer

Things to think about before you make an agreement in Collaboration:

Is this agreement acceptable to me? (remember, it is not going to feel great to make some agreements, so a helpful way to evaluate it is to say, “Can I live with this?” or “Will it work for me?”
Can I follow through with the agreement?
Do we need to set any other parameters about the agreement? For example: when will it be done, how will it be done, where will it be done?
Is this agreement temporary or permanent?
Are there any conditions related to the agreement?

You will have many things going through your head while you are in Collaboration. It is a very stressful time. By the time you leave a 2 to 3 hour Collaborative meeting, you might forget that you ever made an agreement. Comb your Minutes as soon as you receive them, and highlight any agreements with a colourful highlighter. Use the same colour all of the time, so that from a quick glance at your Minutes, you will know that the green highlights (for example) will easily identify agreements.

If you find that the agreement no longer works for you, if you can follow through with the agreement until the next meeting, try to. If, despite your very best efforts, you absolutely cannot follow through with the agreement advise your lawyer and your ex as soon as possible. If you and your ex are able to communicate effectively outside of Collaborative meetings, you can try to resolve the issue between you. If communication outside of meetings is not effective for you and your ex, then advise your lawyer that you want to raise this as an Agenda item at your next meeting.

Remember that when you make an agreement, someone else is counting on you to follow through.

If you follow through, you build trust.

If you do not follow through, trust will be eroded.

The erosion of trust can be a reason for Collaboration failing.

4. Not doing homework between meetings

At almost every Collaborative meeting “homework” or “to do” lists will be started.

This is usually part of the information gathering. You both are entitled to have as much information as you need in order to make an informed decision. Until both participants have enough information, you cannot move to the option generation and evaluation or negotiating stages.

Homework or “to do” items usually involve one or both of you tracking down information. It will take time and energy to complete your homework.

In Collaboration, you take responsibility for the bulk of the information gathering. This is your life and you have access to the information.

In situations where one person really does not want the separation or divorce, not doing the homework can be a passive/aggressive response. That person is saying, by their actions, “I am here. I have shown up, but don’t expect me to do anything extra for this.”

If you are assigned a homework item, you have a choice to agree to do it. But if you are the only person who has access to that information, you would not be acting in good faith by refusing to get and bring it.

You may be the person who has done the banking and made all of the financial decisions in the relationship. You may not want to bring any information. You may say, “I know it all. It is very simple” and recite all of the information by memory.

However, your ex is entitled to see documentation to back up your information. It takes just one of you to say that you would like that documentation. If one of you wants it, it is important.

Homework can be something different than going to search for documents like tax returns, bank statements and pension statements. You may have to contact a realtor and make arrangements for him/her to look at your home to give an estimate of value. You may have to research the value of your vehicle, which will involve more than just finding a piece of paper. You may have to talk to another professional like an accountant or your business partner or a corporate lawyer to get some information.

Ideally, homework items should be divided equally between you. However, that is not always practical. For example, one of you may be living in the house where much of the documentary information is stored. One person may work out of town a great deal and may not have time to gather information between meetings. Use common sense in the allocation of homework items.

If you simply cannot get a very important homework item done for the next meeting, let your lawyer know. Your lawyer can discuss it with the other lawyer (if appropriate) and you can all assess whether or not the meeting should be postponed until the homework can be reasonably completed.

There is nothing that will make you more frustrated than if you come to a meeting, book time off work, maybe arrange for child care for your children and in some cases travel from long distances, to only find out that the other person (or maybe even you) did not get the homework done. As mentioned above, homework is required to move forward, and at times it will be more cost efficient to cancel a meeting when it is not completed.

When you get the Minutes of the meeting, comb through it and identify what homework you need to do. Highlight homework items with a different colour than you highlight agreements, and use that colour on each set of Minutes. Think about how much time you have between meetings and plan for when you can get the homework completed.

Helpful hints:

Know exactly what is being asked of you. Clarify this in the meeting or after the meeting by contacting your lawyer or your lawyer’s assistant. For example if it says, “Joe is to bring the mortgage balance”, does that mean you can call and get a verbal answer and provide that answer or do you need to get an actual statement from the bank? And, the balance at what date? There are no right or wrong answers to these questions; it depends on you and your ex. Some people want paper; others are content with verbal advice. Sometimes balances for two or three different dates are wanted.
Determine when the homework item must be completed by. Most items are homework items because they are needed for the next meeting, so that is usually the deadline. However, that should be clarified.
Gather your information (using a list given to you by your lawyer) before the first meeting; it will reduce the number of homework items assigned to you, but probably will not eliminate it.

5. Following basic communication ground rules in the meetings

The Collaborative Commitment Agreement that my practice group in Medicine Hat, Alberta uses has an Appendix called “Expectations of Clients and Professionals”. In the Agreement, we recognize that these following these expectations will increase the chance of success of Collaboration. They are worth repeating here.

Be respectful of everyone in the meeting.
Attack the problems and concerns at hand. Do not blame each other. Do not resort to insults.
Speak for yourself. Make “I” statements.
Listen carefully. Try to understand what the other person is saying without judging the person or the message.
Use first names for each other and all professionals. Avoid “he” or “she”.
Express yourself in terms of what is important to you, what your concerns are and what you want to talk about. Avoid positions.
Be ready to work for what you believe is the most constructive and acceptable agreement for both of you and your family.
Do not interrupt when another person is speaking. You will have a full and equal opportunity to speak about everything that you want to talk about.
If you have a complaint, raise it as your concern and follow it up with a constructive suggestion about how it might be resolved.
If something is not working for you, please tell your Divorce Coach or lawyer so that your concern can be addressed. Talk with your Divorce Coach or lawyer about anything you do not understand. Your Divorce Coach or lawyer can clarify matters for you.
Be willing to commit time to meet regularly.
Be prepared for each meeting.

Be patient with each other and your Collaborative Professional Team. Delays in Collaboration can happen, even with everyone acting in good faith.

Prepared by Palliser Conflict Resolution

With thanks to Stuart Webb

We call the 13 points listed above expectations. There is no clearer way to describe them. They aren’t “rules”. You aren’t in school or on a team or playing a game. These expectations are an essential part of the way Collaboration works.

Study them. Know them. Live them. Be them.

They seem simple. In fact, that’s the beauty of them. They are simple.

If you attended any typical business meeting, you would generally expect behaviour from the participate that is consistent with the 13 points listed above. However, even business meetings have heated discussions.

It is often particularly difficult to remember to act in accordance with these expectations when something is highly emotional, you are fearful of the future and feeling a great deal of anguish and stress.

Collaborative lawyers are generally very skilled in communication, but most have had to learn this new way to communicate ourselves, and communication is not our area of expertise. Where emotions are having a negative impact on communication, if you want your Collaborative file to succeed, it is best to see a Divorce Coach. A Divorce Coach can help you communicate effectively as well as help you develop strategies to assist you to manage a conversation about a particularly emotional or stressful subject.

Sometimes you are the “button pusher”. Sometimes you are the “button pushee”. Sometimes only one person continually falls short of the expectations. However there is no good or bad. There is no judgment. Communication is a two way street. If it is not working for one of you, it is not working for both of you.

6. Not following Expectations of Clients and Professionals outside of meetings

It is hoped that effective conversations in Collaborative meetings will lead to effective conversations outside of meetings.

Unfortunately, this is not always the case. Everything I said above under point #5 applies as well to communication with your spouse outside of meetings.

You don’t hear about your professional team “going off the rails” between meetings. Why would you risk the success of your Collaboration by doing it?

I have seen many clients follow the expectations very well in the meetings, but they get outside after the meeting, or to a family event a few days later, or have a telephone call 2 weeks after the meeting, and they slip back into their ineffective communication patterns. Conflict ensues, the problems escalate, communication expectations are not followed, and chaos results – chaos that has to be remedied in order for Collaboration to continue.

There are at least two practical consequences from this. Firstly, dealing with the obstacles resulting from this in Collaborative meetings derails the process. Where we would have been perhaps finishing information gathering, or even evaluating options, we now need to spend time on the pressing issues that have been created as a result of the ineffective communication. This means more time and more money for professionals.

Secondly, trust between the two participants erodes. Any time trust deteriorates, Collaboration is put at risk.

Again, one of the remedies provided to help guard against this is the employment of a Divorce Coach.

In certain situations, extra care may need to be taken to guard against this risk. For example, the spouses might agree to only talk about the children. Or they might agree to restrict conversations to emails. Or they might agree to have a conversation every Sunday night. Many divorcing parents communicate by a Communication Book. There are literally limitless options that can be brainstormed to meet your particular needs if it seems likely that ineffective communication outside of meetings may put the success of Collaboration at risk.

IF YOU ARE FRUSTRATED WITH COLLABORATION, DON’T JUST WITHDRAW FROM IT – GET MORE INFORMATION! The chances are if you are finding Collaboration particularly difficult, Court will be much more stressful and difficult.

Find out:

What other processes are available to you to resolve matters?
How long will each process take?
How much money will it cost to use those processes?
How will those processes help achieve the interests and goals which were identified in Collaboration? Will these interests and goals be considered at all?
How will your decision affect your children?
How will your decision affect your relationship with your spouse?
Who will control the outcome in those other processes?
How will this affect any agreements which you have already made?
What can you take from the Collaboration to use in the new process?
Is there another lawyer you can get independent legal advice from to get another opinion about all of the above questions, as well as that lawyer’s opinion about Collaboration?

A final word – what is “success”?

I mentioned above that Collaborative lawyers like to coach clients to think of “success” as reaching acceptable solutions – something that will work – something that you can live with as opposed to everything you wanted. You will never get everything you want in a divorce negotiation. You will always have to compromise. It will never feel great.

But that is another point altogether. If you agreed to do Collaboration, I am probably not telling you anything new.

We can also look at success from another viewpoint.

Has the process or my lawyer’s behaviour as my zealous advocate increased the animosity between my spouse and I?
Has this process caused us to concentrate more on the fight than on the best interests of our children?
Has this process encouraged the children to be embroiled in our dispute?
Have my spouse and I been unable to communicate about our children since we started Collaboration?

If you are answering “no” to most of those questions, then Collaboration, regardless of whether or not it resulted in an acceptable solution, has been at least a bit successful. In the Court process, remember that our clients are often aggravated by the other lawyer’s behaviour and the rigidity and adversarial nature of the Court system. This aggravation often spills over to the children. Hopefully, the children of parents who have used Collaboration are spared that.

Marilyn Herrmann is a Mediator and Collaborative Lawyer who is a partner at Niblock and Company LLP in Medicine Hat, Alberta. She has a self-declared bias against family law matters being resolved in the Court system, and believes that conflict does irreparable harm to families. Marilyn is interested in any method that can help divorcing parents re-structure their families in a respectful, amicable way. Feel free to share your comments and ideas with Marilyn at mherrmann@niblock.ca