Progressive Divorce: Making Best Practices Better by Getting There First
New Jersey Law Journal, VOL. CLXVII – NO. 3 – INDEX 187 APRIL 15, 2002
One of the mandates of Best Practices involves shrinking the time float; what has been referred to as “schedule crashing” in other contexts. Schedule crashing invariably trades a collapsed time frame against the interrelated variables of quality and cost. It strains human elements, since resistance to change is inversely proportionate to the amount of time available to make the transition. The success of Best Practices can be ensured through substantial preparation, planning, counseling and other progress made prior to entering the Court system.
Without taking preliminary action to lessen the potential for non-value-adding processes making their way into the Court system, doing what was done in three years in only one could very well increase the number of post-judgment cases due to solution non-durability and heightened antagonism between those involved. While resistance to change is inversely proportionate to available time, doing more work in less time promotes increased levels of distress. Accelerated work is prone to more errors, and harried decision-making by parties already under pressure leads to decision remorse. Best Practices can benefit, therefore, from non-litigated data collection, process development and problem-solving work getting done prior to the filing of initial pleadings.
Collaborative Law is one approach to non-litigated dispute resolution now piloted in a number of States including Ohio, California and Minnesota. The concept was likewise initiated in New Jersey in 1998 by the Collaborative Family Institute, LLC, following research and development dating back to the mid-1980s. At the heart of these earlier initiatives is a mutual recusal pact, whereby collaborative lawyers and parties covenant to resolve their matter without recourse to litigation. Subsequently, if the collaboration fails and litigation becomes necessary, both attorneys are disqualified, leaving the parties to start from scratch with new legal counsel.
If this sounds like a lot to swallow and even more to risk, you are not alone. Three prominent criticisms have been voiced. The first involves the entry into the mutual recusal pact, ab initio. While the recusal pact certainly has its benefits in certain situations, it would seem irresponsible to require parties to enter into such a pact at the onset. Further development of the case might disclose that it is either unnecessary or otherwise inadvisable. Most proponents of Collaborative Law are insistent on the recusal pact at the onset. In fact, many collaborative law agreements extend the disqualification provisions to all jointly retained experts, including work product. This poses an extremely coercive element where sinking costs have accumulated, and where considerable funding would be sacrificed should bargaining ultimately break down. There are times, however, where bargaining should be allowed to freely break down.
The second major criticism involves the Multi-Disciplinary Team approach. One of the earlier collaborative divorce models includes two divorce coaches and two attorneys, as well as jointly retained child expert, fiscal expert, and arbitrator, along with a case manager to coordinate the efforts of this NFL-sized team. When we consider the average liquidity of the average divorcing family, and compare this to the cumulative hourly rates of the various professionals involved in this approach, we walk away scratching our heads. Even if cost were no consideration, ad hoc multi-disciplinary teams are notoriously conflict-ridden absent proper development and well-formedness. Finally, to require a divorcing couple to retain so many different professionals right out of the gate is akin to asking one person to arrange for a move from six separate personal residences all at once.
The third major area of critique is aimed at approaches that focus too much on process and not enough on outcome or results. Some approaches begin to resemble non-directive psychotherapy after a time. The outcome must justify the process, and progress must be tracked in terms of outcome. Budgeting and time management are impossible otherwise.
Progressive Divorce™ is a “staged” approach to processing family law cases, consistent with the goals and objectives of Best Practices. The approach is outcome-driven and project-based. It recognizes that cost is invariably a function of scope, time limitation and quality of outcome. It is structured. It recognizes that structure imparts confidence and alleviates some of the fears of the unknown while increasing efficiency and effectiveness, especially at the earliest stages. It is vigilantly budgeted, since exhausting financial resources and burning out before a thoughtful settlement can be reached leads to “meat axe” compromise unworthy of the system and the talents of counsel. The approach is readiness-triggered. Readiness is always a function of the parties’ individual levels of ability and willingness. Progression from unwilling and unable to willing and able requires careful facilitation. Finally, there is a definite consulting methodology. Quality assurance cannot be accomplished when processes are purely ad hoc.
Progressive Divorce moves through a progression of phases: 1) Value-Added Divorce Facilitation; 2) Trial Collaboration; 3) Recusal Pact and 4) Conclusion.
Phase I is a step by step value-added process guided by one Facilitator. The goal is to make as much progress as possible prior to filing initial pleadings. While Phase I facilitation work is ideally done by an attorney trained in the process, it does not involve conveyance of legal advice. Rather, it focuses on establishing a negotiated problem-solving framework, including skill transfer and inter-relational work. Jointly retained experts may be retained as required.
Discovery, which can always be reopened should the matter ends up in litigation, is ideally completed here. Stipulations of fact may be entered into, particularly agreements concerning evaluation of assets and liabilities, plus agreement as to the intact family budget and standard of living. The process takes the sweat out of Best Practices time constraints by accomplishing the requisite amount of data compilation, with a far better Value-Adding Work to Elapsed Time Ratio than can typically be achieved within the pendency of a matrimonial action. Phase I fosters trust – if fact gathering successful – while providing a “Red Flag” should fact gathering be blocked by any party, thereby signaling bad faith and the necessity for litigation. At Phase conclusion, the parties will have working skill set. They may even reconcile. A partial agreement may be reached, requiring independent lawyer involvement in next Phase. The parties may reach complete accord, which is then memorialized in plain language memorandum, much in the same way a mediator might draft such a memorandum.
At Phase II (Trial Collaboration), the parties retain independent attorneys who are open to collaboration and the possibility of entering into a recusal agreement at some point. (The recusal pact may never even come to pass; it not indispensable.) Here, attorneys can stipulate to coverture, review and formalize prior stipulations, check the adequacy of discovery, craft Property Settlement Agreements and proceed directly to Phase IV to conclude the matter. Jointly retained expert involvement can be continued or arranged as needed.
The scope of the attorney’s work here and subsequently depends upon how much was accomplished at Phase I. Apart from picking up where the Facilitator left off, Phase II attorneys can also conduct legal research and draft legal memoranda on specific points requiring decision making information of an applied legal nature, while advising both parties of their legal entitlements and risks absent a negotiated agreement. Attorneys might argue isolated disputes before a mutually retained Private Arbitrator to resolve any deadlock. The Facilitator may stay on, as required or desired, to coach, encourage and coordinate the balance of the effort.
Phase III is virtually identical to Phase II, except that all are confident enough with the progression to responsibly enter into a recusal agreement – only if it would make sense or create perceived benefits to do so. Phase IV consists entirely of conclusion & winding-up activities, including those case-specific details handled both before and after putting the divorce through as an uncontested matter with a Property Settlement Agreement.
The Facilitator helps the parties and their attorneys achieve settlement through the use of “mental models,” a term coined by Scottish psychologist Kenneth Craik in the 1940s. Learning how to use mental models quite effectively does not require any formal training whatsoever in psychology. The concept is more closely based on philosophical discourse skills than anything else. It closely examines how people get from observing data to deciding what to do – all through a rapid-fire chain of inferences. Through training and practice, the use of this and other allied skills in the context of facilitating settlement efforts can achieve remarkable results.
Attorneys can easily be trained in these skills, along with the related practice of balancing advocacy with inquiry and reflection, inasmuch as attorneys and other professionals are often pre-disposed to giving opinions and arguing points of view, rather than giving their all to creative problem-solving and learning about the overlapping needs of the parties they represent. A Facilitator can be called in as a matter of course, or from time to time as desired, to provide a source of feedback and coaching concerning the flow of the process. How the facilitator is used beyond Phase I is entirely up to the parties and their attorneys.