A change in the way I bill my clients has reduced the combativeness in the cases I handle. And, because there is less fighting, my client’s legal bills have been reduced. What was this change? I insist that my clients keep their payments up to date. In the past, I would “carry” my clients until the case was concluded, believing this was more compassionate when their lives were in such turmoil.
This simple change forced my clients to make considered judgments about what they were fighting about. No longer was it a “good value” to fight over who got the china or who was more to blame for the failure of their marriage. Irrationally, divorcing couples dig their heels in over issues just like these, bogging down negotiations, demanding needless motions, and going to trial rather than settling, just so they can “win” the last battle of their marriage.
Monetarily, the result is rarely a victory, not to mention the emotional and psychological costs extracted. The extra legal fees are seldom rewarded by a comparable gain in value received because judges are typically very consistent in dividing the marital assets roughly half and half, and in following the prescribed guidelines or precedent for determining support payments and setting custody schedules.
Making sure my clients understand the cost-benefit ratio of their decisions is just one tenet of what I call the ConstructiveDivorce®. With the ConstructiveDivorce, the focus is on the future, not the past. It is designed to lower the emotional and financial costs of a divorce while assuring that my clients move on to the next phase of their life with momentum, at peace with the outcome, and an adequately resourced plan for their future.
Another fundamental aspect of how I practice is that I work to prepare a settlement offer as early in the case as possible. It proposes how the marital property is to be divided; a parenting plan and custody schedule for the children; and any child or spousal support payments. It is one spouse’s explicit acknowledgment that the marriage is over. Some people are able to do this more readily than others, and the contentiousness that occurs in a divorce is often because one or both parties are not yet ready to accept this reality. It is easier to keep bickering than confront life on their own.
Under a more adversarial approach, both sides refuse to make a specific proposal for settling the case until just before it’s set for trial, or to make only proposals that are so one-sided that going to trial seems like the unavoidable outcome. Inevitably, this sort of stonewalling, brinksmanship and toughness raises tensions and cultivates a setting for combativeness and exorbitant fees.
To be sure, helping clients move onto to the next stage of their lives involves more than just settling cases quickly. Some have very real support needs for themselves and/or their children that have to be met in a tangible way. These are challenging issues that can extend negotiations or even require a trial to bring about the final decision. But, as future issues, it is inherently a constructive act to resolve these in the best way possible.
Finally, a Constructive Divorce involves more than just focusing on the future. Some clients are in so much pain that they cannot see the future. In those situations, as their advocate, I try to connect my client with a therapist, clergy or other caregiver that can help them work through the despair and look forward to the next stage of their life. Divorce is really about helping people put their lives back together again.
What kind of legal professionals labor long and hard over their intellectual property . . . and then give it away? Law professors who teach alternative dispute resolution, that’s who....By Ellen Waldman