Divorce mediation is a true first love of mine, and that love informs all the other approaches to family law.
I have always loved mediating cases, even as I continued to practice in other ways. Litigation. Collaborative Divorce.
Mediation is different from the act of practicing law in that the Mediator is a neutral third party, whose role is to help divorcing couples discuss and resolve their disputes. This happens outside of court.
One method I use for Divorce Mediation is the Insight Approach. It comes pretty naturally to me because I’ve always been more curious when asking questions.
The idea of insight is to not have judgment, to ask questions to get at what really matters to the clients. To help them make decisions and get to a resolution that they’re both happy with.
Let’s say a mother and father are at an impasse, and very angry at each other. I can take them into separate rooms and ask a simple question such as, what do you hope will be different if you are able to engage in an active conversation with the other person. Just asking the question gives them pause to reflect.
Many mediators just want to get the job done. This is true in any profession! But such an approach is at odds with the very nature of mediation.
You can succeed in mediation by telling people what they must do. But you haven’t really mediated their case. You’ve just finished it for them.
What about when you can’t get people to find a way to work things out, and you all agree going to trial is not a good idea?
That’s why I look at Divorce Mediation as a process that needs to involve the engagement of both parties.
I ask four questions from the Insight Approach, which I keep on my desktop at all times. They are a really good way to start a conversation with clients to get them thinking about what’s important to them.
I’ve used the Insight method during a Collaborative Divorce meeting, too, by asking a question instead of making an assumption.
It’s imperative to not make assumptions. We often ask questions with assumption as part of the question. A lot of us are problem-solvers, especially attorneys, and we come with good intentions. But if we don’t provide all the ideas or feel like it’s our responsibility to solve all the problems, it opens us up to creative solutions that fit that particular situation.
Because I love Mediation so much, the mission and vision of my law firm guide us to provide a different approach when we must litigate. Someone who is not litigious can end up in court, and they need someone who shares their values and understands why we’re doing what we’re doing and can handle it with compassion. A lot of litigation attorneys are missing compassion.
But at Transitions Legal, we are dedicated to bringing compassion, insight, and listening to every case. And that comes from my expertise in Mediation.
Divorce strategies, or how we approach divorce, develop from listening to the client, understanding their needs and desires, and looking at the law. Once we know the needs of the family, we can decide in which direction to move.
When it comes to divorce strategy, at Transitions Legal, we consider whether Mediation, Litigation or Collaborative Divorce will best serve the client. I prefer to leave Litigation for last, as it offers the least control to the attorneys and the clients.
Sometimes the strategy depends on factors outside my control, like which attorney my client’s spouse chooses. If it’s a difficult, litigious lawyer, then we are likely to land in court before a judge and have a pretty acrimonious and costly path.
That affects my strategies in terms of cooperation and communication. I might be more guarded if I know the other attorney makes everything difficult or won’t easily share information. That’s a strategic decision.
Nonetheless, I prefer to have control over how we will go forward. I like to have choices to present to my clients, let them decide which way best serves their needs and goals.
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I love when the other attorney is cooperative, and we know and trust each other. Then, we’re going to be more open and collegial, not question every move and tactic.
If having the kids more time is important to a client, then I think strategically about how to frame everything in terms of Parenting Time and Custody so that it serves the children through this transition.
Even in the Collaborative context, a process strategy might be, ok well I think I’m going to guide you more to talk with the divorce coach about your needs and desires.
Strategy depends on a lot of factors – the client’s needs and values, the opposing counsel, the type of case, the law, and more.
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Even background, details-while-married, factor into the divorce strategies. For instance, if you suspect your spouse is having an affair, that will likely drive the case. Once I have a full picture, I can recommend the strategy that will best serve a client. Then, we have options.
We can strategize where to put a client’s money – investigator or therapy? For instance, if your spouse spent a lot of time away from the family, leaving you alone to manage your children and the household – were they having an affair?
Investigating an affair is usually only important if the spouse spent time away from family, lying, when they were needed to help with the children, or were with the other person while also being with their children or they spent marital funds on this other person.
Divorce strategies weigh and measure what to spend our time, and resources, on. So perhaps my client is better off spending money on individual therapy rather than a PI so they can get stronger and healthier by dealing with their own emotions as they transition to their new phase of life. All of these details inform how we will move forward. And this is just one example of many!
And it really does differ from client to client. At Transitions Legal, we focus on serving our clients’ needs toward their best outcome. We do not believe in a one-size-fits-all approach to practicing family law. We innovate based on listening to our clients, understanding their values, and applying information to inform our divorce strategy.
Introducing Our Family in Two Homes – a divorce resource now offered by Transitions Legal!
If I had a resource like Our Family in Two Homes (OFTH) when I was getting married and raising children, I would have been so supported!
It never occurred to me way back when, nor does it to most people, to think through and articulate my values, my perspectives, and my beliefs on parenting, partnership, finances and more – and if I had, I bet I could have avoided many marital arguments or parenting disconnects.
Most people don’t really think through these things when it comes to the most important relationships of our lives because it’s just not embedded in our culture to do so. Think about all the romantic movies you’ve enjoyed in your life, which painted a picture of relationships as easy, automatic and synergistic. That rarely happens in real life.
Of course, I see couples when things have gone so wrong, they’ve given up hope that they can stay together. Nonetheless, I am excited to offer OFTH as a unique resource to help couples who are contemplating divorce, already decided to split or going through mediation.
They begin by going through pages 1-13 of the workbook, where they’ll find questions to help them get in touch with what is important to them for the divorce process. These pages cover communication, trust, emotions, values, expression tendencies and more.
It goes so much deeper than the kids or the house. What I love about this resource is how it helps clients discover their personal and collective core values and decision-making preferences. There is a lot of work people can do on their own before they come to an attorney, and this work helps them be more efficient with their attorney, which can sometimes reduce overall legal costs and time spent negotiating.
An example of this is when a client comes to me and insists they want to keep the house, but they’re not sure they can afford to do so, I have to dig deep with them to determine first what is important to them about the house. Then we explore the feelings behind it. That can take a lot of time at billable rates! I enjoy doing this kind of work with my clients. I am also aware that some clients are watching their money. This can save them on fees that might be needed further down the road, or better yet for their kids’ college education.
But if the same client worked through this on their own with the workbook, they would save time spent with me, their attorney, and get moving on the actions required to facilitate their breakup.
I use OFTH in Collaborative Divorce cases and also in Mediation. Individuals can purchase the workbook directly from Transitions Legal, and in doing so, they also get three consulting hours with me as they work through it.
The goal is for people to understand themselves better and understand the divorce process more. Also, they gain insights in how they interact and communicate, which helps an attorney know what they are dealing with in the case. They can draw out an introverted spouse or respectfully ask an extroverted spouse to give the other person some time to speak.
There are, of course, instances where using this workbook might help a couple to identify some of their nagging problems and decide to work on resolving them in an effort to stay together. That’s a lovely outcome when it happens!!
Regardless of the situation, anyone who uses this resource will gain clarity. They’ll understand elements of divorce like parenting time and custody, and know how these are established in the state of Michigan, where I practice. They’ll also know the background of the law to help them reach their decisions.
People often say, “I don’t know what I don’t know.” This resource gives you what you want to know.
To learn more about Our Family in Two Homes or to purchase the workbook-consulting package, click here.
Clients often wonder which path to take when divorcing, as there are many routes to go – litigation, mediation, Collaborative Divorce, or a DIY online quickie. Here’s a way to understand each option and when you should opt for one over the other.
If you and your spouse have agreed on the details of the divorce and are just ready to file and get it done, litigation may be the way to go.
Litigation is a court-based way to divorce, where the case goes before a judge, who has to sign off for it to be final. Litigation does not always mean a trial!
But sometimes it does. There are other reasons to go the litigation route, such as when one partner is narcissistic and there’s no agreeing to anything. The only choice in such a situation is to take it to court – get in, get out, and know there will be no compromises with such a person.
Another reason couples opt for litigation is when they cannot agree on anything and they need a judge to make a decision for them. It’s definitely not the best thing for a family, but sometimes you have no other choice. In such situations, neither person will be happy, and a judge will never know your family the way you do. Litigation basically stops the bleeding.
This is my favorite way to practice because it’s out of the court system and driven by the needs and desires of the couple and the family.
In Collaborative Divorce, you must listen to the other person and agree to a resolution. It’s a method that can be good for every type of case because it’s not a kumbaya situation, but it does take everyone and everything into account.
Collaborative Divorce can be tough, but it’s always humane. Underlying problems would blow up in court, but in Collaborative Divorce, your team will guide you through emotions to the rational side for negotiation and resolution. The team makes a difference.
Mediation requires compromise. This is a good format for two people who are comfortable communicating with each other and both have a good idea of the marital assets.
Opt for mediation if neither of you is afraid to speak up. While you might not be that comfortable one-on-one, you’ll go through this in a room with a neutral trust third party who can say the things that need to be said.
Mediation is good for couples who understand themselves and will do individual work to bring back to the room with the mediator.
Processing Divorce in Court during COVID… On Zoom?
It’s not news that we are in extraordinary times, with divorce court cases being held over video chat platforms like Zoom. I’ve been wondering how this experience is for clients who, for the time being, don’t have to stand in front of a judge in a hushed courtroom.
How do they hear things differently?
How is the feeling different – better or worse?
And is the judge’s ruling in a divorce case as effective from afar?
From a lawyer’s perspective, preparing for an evidentiary hearing and having to do a trial by Zoom is also different. We call witnesses, and they respond from their own homes or offices.
Are they reading information they would not otherwise be able to refer to if in person?
Are they texting a friend or the Jameson Law firm for help?
Body Language Is Impossible to Read in Remote Cases
The judge may hear things differently, too, unable to read the body language or pick up on certain inferences made by those present in a courtroom.
Often in family court, judges will make comments from the bench to address the parties, to send a message. I wonder, is that message as powerful while the party is sitting in an easy chair in his living room, listening without really being present?
As an example, not long after we were all required to stay-safe-at-home, a party filed a motion to prevent the other parent from traveling out of the country with their children – when travel out of the country was really not possible due to pandemic limitations on travel. We still don’t know when it will be possible to travel beyond our borders.
The judge looked at both parties on the virtual hearing and said, “You have to choose your battles. This is not an emergency. Nobody is going anywhere right now, so come back to me if there really is an urgency.”
The co-parents were arguing about what was essentially an irrelevant point. The judge tried to emphasize this point sternly, but I have to say, I don’t think the point sticks as much with clients when we’re relegated to video hearings.
Isn’t It Good to Revere the Judge?
In the courtroom, when a judge makes a comment from the bench, and an order is entered into the court docket, it’s a serious thing. You can feel the gravity of the situation when you’re standing there, in the windowless courtroom, with the judge seated higher than everyone, and no one else utters a word.
You stand, out of respect for the judge, and wait for him or her to respond to your motion. And what the judge says, goes.
Let’s Get Serious
I’m convinced that while the order stands and is as effective and imperative during this time as any other time, the parties don’t feel the gravity of the situation in the same way.
There is one upside to this new normal, though. In divorce cases where abuse or violence is present, not having to show up in the same physical space as your abuser is a relief for clients seeking freedom and safety from domestic abuse.
In these situations, staying in your own home while the abuser remains in another space is a gift for the victim. However, I’m not sure the abuser receives the severity of the proceedings when the judge is on a screen.
The takeaway from all of this is that if you were planning to divorce, think about how the inability to appear in a physical courtroom will help or hinder your case.
There are non-court-based options for divorce, of course, like Collaborative Divorce or Mediation – which might be better alternatives.
If you’re looking for a divorce lawyer at this time, you might want to consider talking with a lawyer who is familiar with and practices both the court-based, litigation model and is specially trained as a mediator or Collaborative attorney – someone like me!
After all, is it worth litigating if you’re not appearing in front of a judge?