The new, non-adversarial, alternative
9 May 2007, 11:00 AM MDT
Read more about Gretchen Walther
Transcript
Bob H.:
Isn't a large part of the difficulties in divorce proceedings the attorneys themselves stirring up emotions for their own interests?
Gretchen Walther:
Often the problem in a contested divorce can be the attorneys. Not necessarily for their own interests, but instead for what they perceive as an ethical obligation to zealously advocate for their clients.
The problem is that zealous advocacy has been defined as trying to get as much "money" or other tangible asset for a client, without thinking of the long term impact of that "advocacy" on the family.
Lawyers get to close the file at the end of the case and never deal with the family again.
Families, however, have to have ongoing relationships that can be adversely affected by litigation.
I often ask clients what they would be willing to do to dance at their daughter's wedding 10 years from now.
The problem is that zealous advocacy has been defined as trying to get as much "money" or other tangible asset for a client, without thinking of the long term impact of that "advocacy" on the family.
Lawyers get to close the file at the end of the case and never deal with the family again.
Families, however, have to have ongoing relationships that can be adversely affected by litigation.
I often ask clients what they would be willing to do to dance at their daughter's wedding 10 years from now.
Carolyn Flynn:
Here's a big question I have heard from a lot of our readers: If you perceive "the other side" prefers a combative divorce, how can you steer "the other side" to a collaborative divorce? In other words, what are some good points you can make if you want to persuade "the other side" to go collaborative?
Gretchen Walther:
Other good points to make to the other side if they think they want a combative divorce is to try to help them think though the long term impact of that decision. For example, attorneys fees will be much higher and much more inefficiently used. Also, you could encourage the person to remember that once they enter the litigation system, they are placing decisions in a stranger's hand. Each family court judge in Albuquerque has 1,100 cases and they are not able to give a family's child and financial issues the attention that those issues deserve. In addition, often a person wants a combative divorce because they are angry at the other spouse for leaving the marriage. People need to remember that New Mexico (and all other states except for New York), are no fault states, and that judges are not willing to focus on people's anger, but instead want to get the assets divided and the child issues resolved - much like a business dissolution. Privacy is another huge issue. All litigated divorces are public record. Can you imagine your kids being able to read the pleadings in your divorce case, when they are adults?
Anonymous:
In the collaborative model, how do parties and attorneys move forward (without access to litigation) when they simply cannot reach an agreement?
Gretchen Walther:
When the parties are unable to reach an agreement in a collaborative case we call that an "impasse." When people do not have the option to go to court, solutions to the impasse are much greater and much more creative. If there is an impasse in a collaborative case, people do not want to go to court because of all of the time they have invested in the collaborative process. They do not want to start over from scratch with new litigation attorneys.
The lawyers, the parties, the mental health coaches, and the neutral financial professional all work very hard to create options to overcome the impasse. If that does not work, the parties and the team take a break for a few weeks to think about solutions. If that does not work, we will bring in a settlement facilitator to make a non-binding recommendation as to what they think a reasonable outcome is. Given that 95% of divorce cases settle out of court, divorce professionals are used to trying to come up with options to settle a case.
The lawyers, the parties, the mental health coaches, and the neutral financial professional all work very hard to create options to overcome the impasse. If that does not work, the parties and the team take a break for a few weeks to think about solutions. If that does not work, we will bring in a settlement facilitator to make a non-binding recommendation as to what they think a reasonable outcome is. Given that 95% of divorce cases settle out of court, divorce professionals are used to trying to come up with options to settle a case.
SAENZ:
How can a family make an appointment with you? I have a family member that is going through a divorce, there are 4 children involved and they are in need of therapy.
HELP
HELP
Gretchen Walther:
You can go to www.newmexicocollaborativedivorce.com. It has my contact information along with all of the other collaborative professionals in New Mexico.
It is a good resource for information on collaborative divorce. It also provides a list of the mental health professionals who work in Collaborative Divorce and who may be able to help the children of your family member.
It is a good resource for information on collaborative divorce. It also provides a list of the mental health professionals who work in Collaborative Divorce and who may be able to help the children of your family member.
SAENZ:
I have a family member that is going through a divorce, there are 4 children involved. These beautiful children have a lot of potential, but they need therapy because their father keeps bad mouthing their mother, this needs to stop for the children's sake. They are 12-13-17-22. The divorce was filed four years ago and is still not final. The father claims to be very religious, but that is hard for me to believe, because of the things this guy says, and is putting into the children's minds, it is going to bother them later in life. Please give me your phone number for an appointment. Thank you
Gretchen Walther:
All of the research on divorce makes it clear that the level of conflict between the parents has the most adverse effect on children going through a divorce. This conflict includes bad mouthing the other parent. When one parent says something bad about the other parent, the children take that as a bad statement about them also. Which makes sense because the child came that other parent.
If I had a magic wand, it would be to help parents with their anger and grief to keep their feelings about the marriage and the other parent completely away from the children.
If I had a magic wand, it would be to help parents with their anger and grief to keep their feelings about the marriage and the other parent completely away from the children.
Anonymous:
Any divorce attorney can help with a collaborative divorce?
Gretchen Walther:
An attorney needs to be training in Collaborative divorce. The basic training is a two day training. We offer it here every May in New Mexico. There are also trainings all over the country. Problem solving and communication skills are important for a lawyer to have when working in collaborative cases. Typically lawyers do not get that type of training.
Carolyn Flynn:
You raise an interesting point about the parties taking a "time out" when they cannot agree -- to give it time rather than rush to litigate. I wonder what your perspective is on how much time it takes for divorcing spouses to come to a peace. What's the average length of time for a collaborative divorce? Do you purposely build in a gentler timeline to allow individuals to resolve their internal issues?
Gretchen Walther:
One of the main commitments collaborative professionals make when working on a collaborative case is to move at the pace of the slowest person in the room. So if one spouse is having an emotionally difficult time in accepting the divorce or in moving through the process, we all respect that person's need to work on those issues. The emotions can range from anger, depression to stress. This is what I love about the collaborative process-it is so respectful of the fact that a divorce is one of the most stressful experiences a person can go through.
Interestingly, working with the person who needs more help still ends up being faster than the litigation system. The collaborative divorce cases I have worked on have taken on average 4-6 months. Litigation cases take 6 months to 2 years. If I were to file an emergency motion today, it would not get set until the end of June early July. If there were an emergency in a collaborative case, I would call up the other lawyer and that lawyer would be committed to working with me to resolve it right away.
Some psychologists have told me it takes about a year after the divorce for people to be able to move on with their lives.
Interestingly, working with the person who needs more help still ends up being faster than the litigation system. The collaborative divorce cases I have worked on have taken on average 4-6 months. Litigation cases take 6 months to 2 years. If I were to file an emergency motion today, it would not get set until the end of June early July. If there were an emergency in a collaborative case, I would call up the other lawyer and that lawyer would be committed to working with me to resolve it right away.
Some psychologists have told me it takes about a year after the divorce for people to be able to move on with their lives.
Carolyn Flynn:
On the other hand, there's the idea that when you peel off a bandaid, it's best to just do it and be done. Where does that kind of thinking come in to collaborative divorce?
Gretchen Walther:
When you peel off a bandaid the scab comes off with it. It kind of hurts and is going to take a longer time to heal. If you just waited, treated the wound with antibiotics and accepted the short term pain - you won't have a scar.
Carolyn Flynn:
Is collaborative divorce really less expensive if the parties are also paying for psychologists and financial advisers? What is the average cost of a collaborative divorce vs. a litigated divorce?
Gretchen Walther:
Believe it or not, it is less expensive. Our early statistics show that collaborative divorce is about 1/3 rd of the cost of a litigated divorce. Does that mean it is cheap? Not necessarily, but you are going to get a lot more bang for your buck in a collaborative divorce case.
For example, at the beginning of a collaborative case, the professionals will meet for an hour and talk about their assessment of the case. (This is all with the client's consent). If there is a complicated financial issue, the lawyers and mental health people will step back and let the financial professional work with the parties. If there are huge communication problems, the lawyers and financial person will step back and let the parties work with their coaches.
The key is that the professionals who can best deal with an issue are addressing that issue. And often in a divorce it is not the lawyers.
For example, at the beginning of a collaborative case, the professionals will meet for an hour and talk about their assessment of the case. (This is all with the client's consent). If there is a complicated financial issue, the lawyers and mental health people will step back and let the financial professional work with the parties. If there are huge communication problems, the lawyers and financial person will step back and let the parties work with their coaches.
The key is that the professionals who can best deal with an issue are addressing that issue. And often in a divorce it is not the lawyers.