This is an essay on compassionate divorce and the role of lawyers in the divorce or dispute resolution process. For the parties, the core of my system is to negotiate for the welfare of both sides. For the lawyers, the core is to throw away the law books and let imagination help the lawyers find creative resolutions to their cases.
Of course, there is nothing new under the sun, and there is probably nothing new about my ideas, but perhaps I have cobbled many ideas together in a way that hasn’t been expressed before. It is like the Gutenberg press: nothing new, but a new compilation of technology and ideas of the day.
I have experience in the legal field because I was a practicing lawyer in Seattle from 1971 to 2007, and I worked in the areas of criminal defense, divorce, bankruptcy, personal injury and many other areas of litigation. In 2007 I moved to Svensen, Oregon, a rural area outside Astoria, practiced here a little, and spent a lot of time thinking about dispute resolution. I also took training as a collaborative lawyer both in Seattle and in Oregon. In collaborative cases, lawyers and clients negotiate in person. They do that because stressed people tend to flare into argument but they stop when others are present. Thus, the lawyers’ desire to argue is tamped out, and the clients’ desire to blame is tamped out too. The lawyers and parties negotiate for what they want, rather than arguing about rights and liability. The lawyers agree to drop out if they cannot settle, which motivates the lawyers to succeed and stimulates candor.
I have some basic ideas or postulates about how people work and about how lawyers and the legal system work. These ideas are the basis for believing that benevolent divorce works.
First, I believe that most people in a divorce have a deep down desire to be kind and beneficial to the departing spouse that is stronger than a desire to hurt the spouse or accumulate property. Oxytocin over testosterone!
Second, in any divorce where children are involved, the parties have a deep common interest in the children. Usually the parties benefit the children when they act for the welfare of each other, and they hurt the children when they fight.
Third, lawyer imagination is stimulated if they throw away the law books, stop thinking about their clients’ prospects in court, stop modeling warfare with the other lawyer, and let imagination work. I have no basis for this in literature or elsewhere, but it works for me, and I believe it is extremely difficult to create imaginative resolutions to conflict while constantly preparing for war.
Fourth, the value of an estate can be increased by the cooperation of the parties. For example, if the parties cooperate, they can manipulate their assets in such a way as to minimize taxes, and create more wealth for the former husband and wife.
Fifth, criminal lawyers are skilled at seeing an objective and driving both themselves and their clients to that objective. [For example, sometimes a lawyer can negotiate a favorable plea if the client stops drinking. But often clients are not good at changing their ways. The lawyer drags the client to alcohol cessation classes; the lawyer cajoles the client into going to AA; the lawyer calls the client early in the morning to remind them to attend meetings; the lawyer is determined and eventually a manageable plea emerges.] Further, and in spite of what I said before, criminal lawyers think simultaneously about preparing for war and creating imaginative solutions; that is, they defend aggressively and at the same time look for ingenious ways to enable their client to make an advantageous plea. These criminal lawyer skills provide a basis for cross training divorce and other lawyers in the art of encouraging clients to reach a goal the lawyer and client both want.
Sixth, litigation is extremely expensive for both lawyers and clients, but in ways lawyers and clients often don’t see. The math is simple but many lawyers don’t consider it. As an example, a party may have an offer of $10,000 but wants $20,000. If it is fair to say there is a 50% chance of that result, then the value of the claim is $10,000 “on the table” plus $10,000 more, less 50% because half the time the case will be lost, for a cash value of $15,000. But the ultimate value is much less. In a divorce, time consumed by litigation is time lost from life. Just looking at tangibles, parties must devote valuable time attending to a divorce, and they must pay fees and costs. The value of money a year from now is less than the value today. Considering these burdens, the value of a resolution now is attractive compared to a larger amount somewhere in the future: most people would not sacrifice a year of their lives to the Gods of litigation for a few more dollars. One can guess at the chance of prevailing, that is, determine if there is a 50% chance of prevailing, by taking a hard, cold, realistic look at the amount a disinterested person would pay for the anticipated proceeds of the suit today.
Now some analysis of the legal profession: Lawyers settle cases by predicting court results. They analyze cases, statutes, facts, rules and personalities, predict the result if the case goes to trial, and argue about their respective predictions. They settle on the basis of compared predictions. This is like preparing for war. Lawyers have done this for 800 years, and don’t easily abandon it.
Lawyers are afraid to settle creatively because they are afraid to abandon possible court claims even for something that seems beneficial for both sides. This fear is reasonable.
Divorce is a heavily regulated area. There are many sets of rules and laws that more or less control the resolution of all issues in divorce cases. There are formulas for child support for almost every circumstance, and there are forms which provide for every day of dependent child’s life. There are cases that explain how to calculate the division of future expectancies such as pensions, for different marriages.
The role of a court lawyer is to protect the property and limb of the client from abuse by a spouse. In this, the lawyer acts like private police by bringing abuse to the attention of the court, and the court protects the parties with its enforcement powers. The role of the court as the source of wisdom for dividing property and providing for children I believe came later in legal history. This essay walks away from the concept of the court as the “parent” who decides for the parties how their lives will be arranged. In some cases, courts are not necessary to act either as police or parent, and their role is to audit an agreement of the parties for possible abuse and then “sanctify” the agreement, sometimes until the parties pass away.
Now, finally, how a lawyer can assist a client to obtain a benevolent and divorce : the lawyer should first have a thorough discussion with the client to determine whether or to what degree the client wants to be benevolent to the departing spouse. It is important to do this right away because it can be difficult to back away from court conflict once it starts. Lawyer and client may understand where the parties want to be when the divorce is done; they may understand where the parties want to be when their lives are over. In this way the intentions of the parties evolve from fear and selfishness to benevolence and compassion. The lawyer should also determine whether there are “embedded” claims between the parties that are legitimate objects of recovery. For example, if one party has deliberately wasted assets, it is reasonable for the other party to ask for recompense, just like in any other arms length partnership situation.
It is also important ethically for the lawyers to obtain a thoroughly vetted consent to whatever process the parties take.
Divorce becomes estate planning. The lawyer, or hopefully both lawyers, think about the welfare not only of their own client but also of the welfare of the departing spouse. When the lawyers think about both clients, it naturally follows that they stop thinking about battle in court, and it naturally follows that they stop thinking about the rules, laws, cases and traditions that apply to court. That clears the lawyers to be imaginative, and creative settlement possibilities start to boil out of the legal mind. It’s as simple as that.
The lawyer might engage a CPA or financial person to save money and increase the wealth of the parties. For example, I once had a case with complicated assets and debts and mortgages, but the husband wanted to provide for the wife in old age. Every lawyer knows about alimony, or maintenance, or spousal support, as it is called in different places, but I thought of long term care insurance and realized I knew nothing about it, had no idea what it cost, had no idea whether it is a good replacement for alimony, had no idea what tax consequences might exist. This was a CPA problem, not a lawyer problem. An estate planning lawyer might have skills similar to that of an accountant, and so a lawyer could fill the role of “financial person.”
The lawyer supervises negotiations and keeps the client on the track of arriving at the result that was thoroughly discussed in the beginning. The lawyer may have to be determined and tenacious because divorcing clients sometimes have incendiary conflicts. Here criminal law skills might play, because criminal lawyers are often good in subtle ways at keeping a client on a track that leads to a beneficial disposition of their case.
It is of course true that both sides may not agree to the wisdom of cooperating. However, even if one party insists on punitive or competitive goals, the sweet voice of reason tells all parties that a court solution is more expensive, often vastly more expensive, than a cooperative settlement. And, as wise lawyers say, going to court is rolling the dice. Surprising results are not surprising: a party may hope for more but end up with less. To be repetitive, litigation means extended pain, and it means dropping normal activities to feed the dragon of litigation. Part of a lawyer’s job is to convince the other side of this, and it works some of the time… but not all the time.
Other lawyers or other lawyer roles have to exist. In my opinion, the lawyer should always have another lawyer on call to litigate in the event that hostilities break out. The course of true separation does not always run smooth. Sometimes parties grab children and flee. Both sides should be ready, unfortunately, to go from negotiation to war. In addition, there should be a lawyer skilled in translating whatever the parties may agree to into a final decree that is acceptable to a judge. This is more true the more unconventional an agreement may be.
Once a resolution is reached, the lawyer should thoroughly compare the proposed resolution with a prognosis of what might happen in court. This would be going from the imagination role to the role of negotiating on the basis of predicting the result of a court battle. For example, if the parties agree to divide property instead of agreeing to a traditional schedule of payments, the lawyer should know the comparable worth of the different options. With that knowledge, the lawyer and client should thoroughly discuss the options so the client can make an informed choice whether to use an unconventional settlement. The lawyer should also review any agreement to make sure it is understandable and viable from a legal standpoint for the many years it may be in effect.
The parties and lawyers may want to negotiate some claim of right by one party against another. In this my idea is possibly different from collaborative law, where the parties are supposed to negotiate for what they want, without regard for fault or liability.
I believe that if the customs of the legal world changed divorce would become a humane process, and the parties would end up on good terms for the remainder of their lives. Lawyers would be happy because they would be helping their clients. Lawyers and former spouses would be happy to see each other when they run into each other on the street. Lawyers starved for work might be able to find work by pioneering benevolent settlement of divorce cases. It is just possible that these concepts might spill over to other areas of law too.
As a postscript, I have found it very difficult to apply these ideas. Some clients are receptive. Most lawyers I have seen are not. Some people I know create benevolent forms of divorce for themselves without even thinking about it as such; for example, providing for health insurance for a departing spouse is a prime example of divorcing couples caring for each other.
I hope lawyers and mediators will consider the ideas I have expressed here.
In this episode, Josh Weiss--Co-Founder of the Global Negotiation Initiative--discusses the strategic use of storytelling to create connection, teach, and persuade in mediation.By Joshua N. Weiss, Veronica Cravener