secrecy in collaborative law

Two people, a man and a woman, came to me separately in the past week to explore the possibility of doing collaborative law.  Both were people in short term marriages with no kids.   The real estate wasn't really the issue.   And so it seemed that their situations were relatively simple, and that the collaborative process would be relatively simple.  But scratching the surface made me see nuances that would not make the case appropriate.  

The man asked me for my legal opinion of doing something that appeared to be somewhat morally questionable.  Assuming that it was legal, it was not, as I told him, collaborative, and would not be a good way to start off the collaborative process.

The woman told me that both her husband had recently taken money from their joint bank account, which she assumed he had invested in his own name in a foreign stock market.  Again, not illegal, but it wasn't clear that he would be transparent, either.

While couples obviously do not need to agree, I do believe that there is a certain level of trust that each must have for the other, perhaps not when it comes to emotional issues, but certainly when it comes to the financial. 

The collaborative process is, unfortunately, not for everyone.  Sometimes the best thing you can do is do an honest assessment of you and your spouse, and find a lawyer who is a good negotiator, and work to get as fair a result all around as possible.  There is no reason why the tenets of collaborative process - a commitment to fairness, to self-determination, to resolving conflict with dignity - cannot be applied to negotiation.

You can't change your circumstances.  All you can do is work toward the best possible result.

  

Where are We?

President-elect Obama.

Was the election really only 9 days ago?

Doesn't it seem as though the whole world has changed since then?  It's as though we have a whole new outlook, a new range of possibilities that didn't exist before.  You knew the moment was coming, but didn't realize how profound a shift it would be until it really got here.

How could it be?  Many of my friends are strangely quiet, introspective, trying to get used to this new way of thinking and being.  Who knew that one man could enlist the hope and support of millions from all over the world?  Who knew that we could turn the race conversation on its head in one day?

We are used to thinking about crisis in terms of disaster.  

9/11.  Katrina.  Tsunami.  

Is there a word for an equally dynamic and sudden shift that is positive??

The 60's were about rebellion against the establishment.  About tearing down old structures.  

This is a different kind of revolution.  It is positive - constructive.  It's about hope.    Working together. 

Building something new.  

Fueled, in large part, by people too young to remember the sixties.  

And by those old enough to remember segregation.

I've seen huge shifts in personal thinking during mediation sessions and in the collaborative process - that aha! moment when people realize a new way of thinking.  One of those moments when everything changes for you and nothing will ever be the same.

And now it is as though the whole world has had that aha! moment.

Isn't it wonderful!?

 

Obama (the Mediator) for President

"The change we need isn't just about new programs and policies.  It's about a new politics - a politics that calls upon our better angels instead of encouraging our worst instincts; one that reminds us of the obligations we have to ourselves and one another." 

 -- Barack Obama, Canton, Ohio, October 27, 2008.

Mediation calls upon our "better angels."  And in mediation we learn to see a problem through another person's eyes.  In the family mediation that I practice, we all work together to figure out solutions that are good for ourselves and one another - for the whole family.  

Mediation is built upon a notion that people in conflict can work to solve a problem together.  But in order to do that, we must allow ourselves to see "that of God" in the other person.  We must disengage, if only for a few moments, from sparring with each other -- just long enough to hear what the other person is saying.  It is at that moment that they will also hear us.  Light and air come into the room.

Barack Obama is fundamentally inclusive. He understands, perhaps intuitively, the very core of mediation.  What would it mean if we had, as president, someone who was a mediator at his center?

I truly believe that the reason his campaign has come as far as it has is because it IS built on hope - on optimism, it calls on that which is truly good in us.  He calls us to be our highest selves.  And we, in turn, are rising to the task.  We are allowing ourselves to believe that love is possible, no matter what happens in war, with the economy.  We are allowing ourselves to believe that the best way to bring ourselves up from under is with each other.   We are all interconnected.  We need each other. 

Bankrupt?

Is bankruptcy a possibility for you? For your ex? Are you worried about how it will affect the financial terms of your divorce or separation?

Bankruptcy cannot discharge court-ordered obligations of child support, alimony or equitable distribution.  That means that even if you declare bankruptcy, you must pay support to your family.  It also means that if there is any money that will be divided among creditors, the family comes first.  

But what if you are not legally married?  Or if you are and you and your ex  just want a legal separation, not a divorce? Many couples who mediate or go through the collaborative process want a separation agreement, without planning to file it in court.  They are legal contracts, but the child support or "palimony" are not court-ordered.  Would those be discharged from bankruptcy?  Well, it seems that public policy would dictate that whatever money there is should still go to the family first.  But why risk it? 

You and your ex can agree to let the other know if you are thinking of declaring bankruptcy, to give the other a chance to go to family court to get a court order for child or "spousal" support.    That would keep your priorities straight - and make sure your kids get fed before the credit card companies.

If only the federal government thought that way!  

Are You Being Heard?

A visitor to Jerusalem goes to the Wailing Wall.  He sees a rabbi there, praying.  He asks the rabbi what he is praying for.  

  "Peace in the middle east," the rabbi says.  

  "How long have you been praying?" our visitor asks.

  "Every day for 25 years!"

  "And how is it going?  Do you think we are making progress?" our friend asks.

  "It's like talking to a wall!"  The rabbi exclaims.

I've noticed that one of the most powerful aspects of mediation is simply to be listened to.  

Often when a couple has been fighting, they each simply feel that they are misunderstood.  So it can be very validating - and perhaps healing - when I listen deeply to that point of view.  And it sends a message to the other person that that point of view is worth taking the time to understand.  

The quality of the mediation has a lot to do with the quality of the listening.  It's hard to explain that, but I really believe it is true.

   

Learn from the Dogs!

New York City parks have many wonderful places for dogs to play during off-leash hours.  Dogs create their own social relationships (as do their owners!), creating a complex subculture.

My golden retriever and I frequent a huge, hilly open meadow a in Prospect Park called "the Nethermead."  It's a wonderful part in the center of the park where no buildings are visible, and it is quite easy to forget you are in the middle of one of the largest cities in the world.  

There are two dogs often there who can only be called best friends. One is a doberman, the other is a pit bull mix.  They are about the same size and weight, I'd guess, although they have very different shapes.  They share a toy that is a big rubber ring, about 10 or 12 inches wide.  Each dog grabs one end and pulls. And so they tug, face to face.  For hours.  It's like watching an eight-legged dance across the grass.  

"Who needs TV?" I asked, the first time I saw them.  They can keep each other entertained for hours!  They are perfectly matched, fully engrossed, focused only on each other, working hard and going nowhere.

This reminds me of couples who are deeply engaged in fighting with each other.  It can be very engrossing, taking all of your attention, and require constant adjusting and maneuvering -- but look where it gets you ... nowhere!

Different Time Zones

I've been doing a few mediations lately where the timing of the partners is way out of sync.  It often happens in divorce that one person can't wait and the other is dragging his/her feet.  So what do you do?  Well, as my friend Rachel Green says, "A train can only go as fast as its slowest wheel."  

Mediation is a voluntary process. and it must be done in tandem, so the rabbit has no choice but wait for the hare to catch up.  This can be frustrating for the hare, but the best decisions are those that are made from a place of being relatively centered.  The key here is to think long-term!