By Laurie Israel
Collaborative divorce combines several elements of the divorce process into an effective whole. The result is, in general, a divorce that is more closely tailored to the needs and interests of the divorcing individuals (and their children). But adding a Neutral Process Coach to the mix may provide great value and lead to a better result.
Here are some of the features of collaborative divorce:
Face-to-face meetings. The litigation process is inefficient because the clients and their attorneys are not resolving the divorce directly, through direct communications, but through attorneys. This is also a problem in non-litigated negotiated divorces. Because there is no face-to-face contact, hurtful and aggressive positions tend to be interchanged by the attorneys and the spouses.
In collaborative divorce, the parties engage in face-to-face sessions with their two collaborative attorneys. Issues can be dealt with directly. Miscommunications and misunderstandings can be cleared up or avoided altogether. Spouses tend to be more conciliatory and gentle to one another in this setting, leading to less extreme positioning. In a sense, the collaborative process is the last act of the marriage, unlike litigation, which is at its essence, an act of war.
Client control of process. As divorce attorneys, we partner with our clients. Our clients should be in control and make the decisions that they can live with. They are the ones who know the history of their marriage, their day-to-day needs and concerns as parents and as individuals. We, as attorneys, are there to assist and support our clients. The more we understand their concerns, the better we can help them. Our skills, experience and legal knowledge benefit our clients.
What does “the law” have to do with it? Part of what we do is help our clients manage their expectations by providing sound legal knowledge, helping the clients to be realistic in their desires for the terms of divorce. Divorcing couples need to deal with multiple issues relating to finances and children. We analyze the facts of their divorce through the filter of the law pertaining to divorce applicable in our state. This way the client can understand the range of settlement on the various practical issues that the couple needs to resolve. Issues analyzed may include future inheritance, the amount and duration of support, and whether the law would require an at-home spouse to enter the job market.
This all assumes that the law is worthy of application. It is a living body of the best ideas of the most competent professionals dealing with the practical issues facing our divorcing clients. These ideas and rulings are formulated in practicality and a deep understanding of the human condition. In most states, as in ours, divorce law is considered an “equitable” legal system, based on treating the parties fairly and justly.
I am a lawyer and have great respect for written court decisions, as well as the skills of the probate and family judges in Massachusetts as they make decisions (often unpublished) in the cases before them. These judges are high-level experts in this area and are worthy of respect. For all the above reasons, I believe wholeheartedly in the appropriateness and suitability of the law.
Collaborative attorney as advocate. There is very often a range of results. When applying the law to the facts of an issue in a divorce, we attorneys seek to help our clients take a reasoned view on any issue, so that our clients feel supported and educated at the same time. This helps parties to avoid taking extreme positions. Extreme positions can derail collaboration, or negotiation, and cause the divorce spin into litigation.
At the same time, collaborative divorce includes lawyer advocacy for the respective clients. We meet with and speak with our clients off-line (not in the collaborative meetings). They can truthfully express all the thoughts and wishes for their case that may not be appropriate to express in the group collaborative practice meetings. In addition, in the separate meetings with the client, the lawyer can provide legal information that may support (or detract) the client’s position. This helps orient the client as to what is possible. The collaborative group meetings work best if words expressing advocacy (by the clients, but especially by the attorneys) are limited.[1] In a collaborative case, because negative interactions and aggressive positioning are highly minimized, the spouses tend to be more generous to each other in offering terms of settlement.
With this as the background, a Neutral Process Coach can make the collaborative divorce case even better.
What is a Neutral Process Coach? The Neutral Process Coach (NPC) is, most importantly as the term implies, a neutral. He or she does not take sides and does not advocate for either of the spouses or for any result.
The NPC is concerned with the process of collaborative divorce – to make sure the process works well. The NPC does not coach either of the spouses or the attorneys, but facilitates effective discussions. In that way the NPC is a coach or facilitator for the entire process.
The NPC makes verbal observations of communication dynamics in real time. The NPC identifies communication problems and issues on the part of the divorcing couple. The NPC also calls on the attorneys when the attorneys are acting too much like advocates or litigators, thus detrimentally affecting the collaborative process.
Why attorneys cannot do the job of the NPC. When the communications become unproductive, the NCP can step in to offer a more productive mode of communication. There are patterns and dynamics of a marriage (conflict, emotional) that come into play in the collaborative group meetings. It is much more effective for the NCP to deal with these issues than the attorneys, because the attorneys are advocates for their clients and not neutrals. It is very appropriate for the NPC to identify and address these dynamics. He or she is a neutral and not an advocate for either of the spouses. The NPC is on the side of the collaborative process and helping the clients transition through the divorce.
Who can serve as a Neutral Process Coach? An NPC is generally (but not always) a licensed mental health professional. However, the NPC can also be a trained collaborative practitioner who is not a mental health professional, such as a businessperson, a coach, or a mediator. The NPC must be formally trained in collaborative practice and should be an active member (either full or associate) in the local collaborative practice association. In addition, the NPC should have other training in conflict resolution, including mediation training, advanced mediation training, and advanced collaborative practice training.
Who chooses the Neutral Process Coach? Generally, the two collaborative attorneys choose the NPC based on their experience in other cases, the needs and personalities of their clients, the location of the meetings and the skill of that particular NPC.
Does the Neutral Process Coach need to be at every meeting? Yes. You never know when something will come up that needs to be addressed by the NPC. If he or she is not there, the process could derail. The NPC should be present at all times, especially at the first meeting.
Sometimes a NPC is mostly silent, only entering the discussion at certain points. However, those points can be very important ones. The participation of the NPC at these times could be crucial to success or failure of the collaborative process.
The NCP is the only neutral in the room. The most important value the Neutral Process Coach has in the collaborative process is that he or she is the only neutral in the room. They provide important ballast to the meetings, balancing the conflicts between our clients and how to resolve them. They also help reign in the attorneys from acting like attorneys. (We are highly trained to argue and to advocate for our clients and have to learn other skills in order to be effective collaborative lawyers.)
Having a neutral person in the room at all times should not be underestimated. It is a breath of fresh air. When things get tough, all eyes look towards the NPC, literally and figuratively. When that happens, if he or she has not already sprung into action, the NPC will assist by addressing what is happening to the process that is making it go awry.
The NPC can identify when the discussion is going off base, either because the attorneys are acting like attorneys, or the clients are reliving their conflicts. With a few words, the NPC can right the discussion. Richard Wolman, a Boston-based NPC, likens his role to that of a river boat captain. When the water is rough and we reach rapids, he sticks paddle in the water and gets us going in the right direction.
What about the clients seeing the Neutral Practice Coach outside of the collaborative group meetings? We have found it useful for the NPC to be available as a resource to the divorcing couple in between collaborative meetings. Sometimes the couple meets with the NPC together, and sometimes they each might meet with the NPC separately. When the NPC meets with the spouses separately, it can have highly beneficial effect, as it gives each of the parties an opportunity to speak freely without the other spouse present. It is similar to “caucusing” in mediation. The input obtained in these separate meetings with the NPC helps the NPC do his or her job better.
Having been present for all group meetings, the NPC doesn’t have to be brought up-to-date and already knows the clients and has viewed their interactions first hand. He or she is learning the details of the divorce and the agreements that are being discussed. He or she can be a valuable resource for the divorcing clients in between meetings. This is been extremely useful to many of the couples in collaborative cases I have been engaged in.
What about the cost. The NPC adds an initial cost to the divorce “package” based on the NPC’s hourly charges. However, the value added by the NPC is great. I believe that adding the NPC generally reduces the number of group meetings required to conclude the collaborative divorce. In addition, lawyer time between meetings is reduced by the lessening of unnecessary conflict and positioning. The NPC also adds to the quality of the process and the quality of the agreement. This makes the couple’s post-divorce relationship better. Finally, collaborative practitioners believe that the presence of the NPC improves the chances that the collaborative process will result in agreement and not spin out into litigation. So, on the whole, we believe having a NPC does not change the overall cost of a collaborative divorce and may, in fact, reduce it.
Are there any downsides? The NPC is a trained neutral. However, the NPC is not an expert in divorce law. As a result, the NPC may say something in a group meeting that shows that the NPC assumes that a certain result must apply (due to his or her incorrect or imprecise legal conclusion). This may arise in issues pertaining to spousal support, a very hot issue in divorces.
In the background, the two attorneys might be fully aware that there is a range of results the alimony law provides. The two attorneys might be in disagreement as to how the law of alimony applies to this case. The attorneys also may have differing points of view as advocates for their clients. And the clients’ views might be in opposition, not having reached resolution on this issue.
An NPC may come into the group discussion with a view of the law of spousal support and how it would be applied in the case inadvertently imbedded in his or her words. This view might appear to take a position on what is being contested in the collaborative process. What results is that the NPC no longer seems neutral to one of the parties, thus impairing his or her usefulness.
When this happens, it is important that the attorneys (especially the one whose client’s view was validated by the remark) immediately remedy the NPC’s presumption at the group meeting in real time (gently and mildly), so that the NPC can understand, be aware of it, and regain his or her neutrality.
Everyone makes innocent mistakes once in a while – even collaborative lawyers. If mistakes can be immediately identified and corrected and apologies forthcoming, the collaborative process can move on unimpaired. We are not perfect collaborative practitioners or NPCs. We can only be “good enough” collaborative practitioners and NPCs. [2]
Conclusion. Neutral Process Coaches add value in collaborative divorces by ensuring that the communications in group meetings are not derailed by emotional and position-based dynamics on the part of the clients and the attorneys. The NPC can help the clients address their concerns better and can be the neutral element that the spouses and their attorneys can look to at difficult moments during the process.
Copyright 20011 Laurie Israel
[1] Another very important feature of collaborative divorce is the contractual agreement of the parties and their attorneys not to litigate the case while the collaborative process is ongoing. This agreement prohibits the collaborative attorneys and any attorneys in their firms in engaging in litigation for these clients. What results is a safe place (often called a “safe container”) where the parties and their attorneys can address the issues in the case without fear or threat of litigation. It makes a collaborative divorce different from any other process.
[2] For a more detailed explanation of what Neutral Process Coaches do, visit Mary Jane Harmless’ informative post at http://neutralcoachincollaborativepractice.blogspot.com/ For the concept of the “good enough” collaborative lawyer, see Donald W. Winnicott’s concept of the “good enough mother” http://en.wikipedia.org/wiki/Donald_Winnicott. See also therapist blog assessing the effectiveness of Dr. Melfi, Tony Soprano’s psychoanalytic psychotherapist, in “The Sopranos” as “a good enough therapist” http://www.agpa.org/pubs/GC_0103_sopranos.html.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.