Look Forward by Looking Back
By Diane Gaspar, Esq. Collaborative Attorney
Diane draws on her 30 years of legal experience to identify the areas that the mediating parties should address to reach a complete and thorough final resolution. Diane is a certified family law mediator through the New Hampshire Family Law Mediation Board. In addition to working as family law attorney in Massachusetts and New Hampshire, Diane’s extensive professional legal experience covers criminal law, probate, adoption, personal injury, and child protection matters. She had served as a certified guardian ad litem in New Hampshire for over 25 years. Diane is also a collaboratively trained attorney and she is a member of both the Massachusetts and the New Hampshire Collaborative Divorces. Learn more about Diane here: http://www.gasparmediation.com/about-us/
We have all heard the expression, “hindsight is 20/20” and we know this means that when we look at past events we can see very clearly where we went wrong, how we could have done better or how we could have avoided mistakes. That happens to me when I think about old cases that could have been handled collaboratively, saving the client a lot of time, usually a lot of money and hopefully with less stress than a conventional litigated divorce.
Take my client, Jerome. When he first came to see me, he said, “this will be a quick case. My wife and I agree on what we want.” He was half-right. While it was not a quick case, he and his wife had agreed that the marriage was over and they both wanted a divorce. The short version of his divorce saga is that after a three-year process, at least $60,000 in legal fees for my client alone and a four-day hearing, Jerome was divorced. I won’t bore you will the countless motion hearings, the guardian ad litem report, and of course, the post-divorce hearings on dividing up the furniture. (They both wanted the rocking chair. At that point, I wanted a chainsaw.)
In addition to the acrimony between the parties, things deteriorated between the attorneys, as I advised my client that the wife and her lawyer has some very unrealistic expectations of how the judge would rule as a final outcome. I initially offered a 55%/45% split of the marital assets in the wife’s favor; wife wanted 75%. The judge ultimately awarded her—you guessed it—55%.
There was nothing unusual Jerome’s situation: he was the family wage earner; she was the stay at home parent to their three children. They had a modest, frugal lifestyle and consequently had some significant savings and other assets.
For a variety of reasons neither trusted the other. While going through the collaborative process would not have magically restored their trust in one another, it would have gone a long way to getting the divorce resolved far less time and for less money.
The couple’s first step would be to meet with a divorce coach, who is a trained mental health professional. The coach inevitably would have discovered that mutual mistrust was the one attribute these two had in common. A transparent and proactive approach would have helped them trust the collaborative process, even if he or she continued to distrust the other.
This couple were at odds as to the parenting plan, meaning when the children would be with one parent or the other as well as other child-related issues. The coach would navigate through that process with the couple to develop a workable schedule.
Collaboratively trained attorneys are another aspect of the collaborative process that distinguishes it from a litigated case. The attorneys are invested in working toward solutions, not adding to the parties’ hostility. This doesn’t necessarily mean there are no conflicts or opposing views as to what is a fair settlement. It does mean that the lawyers speak up for their clients calmly and respectfully. Sometimes the client’s own attorney has to be the bearer of bad news to the client when the client’s goals are impractical or unrealistic. This reality check could be what settles the case and allows the clients to move on from a married couple to co-parents.
Lastly, if there are financial or tax issues, the parties agree to hire one professional such as a CPA or tax specialist to inform the parties and counsel of the impact of any financial decisions. In your typical divorce, each side hires his or her own financial advisor; since the emphasis in the collaborative process is to problem solve, this financial expert provides both sides with information to guide their resolutions. With one source of information and the emphasis on problem solving, there is no need for each side to have his or her own expert.
Putting on our “hindsight glasses” does not mean that our view is rose-colored. When folks are divorcing, there are certainly frayed feelings and raw emotions. However using the collaborative process to get to the end of the divorce road oftentimes means that the road is smoother, faster and without the potholes of a litigated case.