Hidden Treasures

Recently as I was looking through my father’s old law office safe, I discovered
a 71 year old letter written from my grandfather to my father. A letter I never knew existed. A letter that held enough value to my father that he had put it in a place for safekeeping. I practiced law with my father for ten years and he had never mentioned it to me. Perhaps he’d forgotten about it. Perhaps during the course of the ensuing years, its impact had lessened.

In any event, when I read it I understood on a deeper level why our practicing law together meant so much to my father. By the time he’d begun practicing law, his own father had very debilitating Parkinson’s disease. Over the years, my dad had told me that although he had been able to rely on his father’s wisdom and counsel, they had never been able to cement their law practice by regularly being in the same office.

I never knew my grandfather as he died before I was born, and the letter he wrote to my Dad preceded my birth by many a year. However, finding it explained to me why I think my father so treasured our having worked together. It was a sort of coming full circle of something he’d wanted and never had before. So much of life seems to be the unwrapping of gifts we never expected to receive.

When I work with clients who are just beginning to journey down a path borne of disappointment, I do so with the knowledge that there will be gifts yet to unwrap. There are events we can predict in life, and many things we cannot. However, when clients are able to structure a path of their own making and restructure their families in thoughtful ways, they can remain alert to the treasures they are likely to discover and know that unlikely gems may happily appear as well.

 

 

Toolbox: Arbitration

 

A private courtroom. A way to resolve a dispute when you can agree that you disagree, and that someone other than yourselves will be better able to bring clarity to your situation.

Arbitrators are experienced practitioners, often times retired judges. They can create a private courtroom setting where clients can set the time schedule, and the parties and their lawyers can present the facts as they see them to be. The arbitrator can then streamline the process by making an Order that the parties agree will be binding (although they can also agree in advance that is does not have to be).

The arbitration process can be used to more speedily overcome a stumbling block, for instance, the division of multiple parcels of real estate, so that the parties can then move on to more amicably reach their remaining agreements.

Arbitrators can timely untangle a dilemma that otherwise left to fester could become a more complicated rift.

 

 

Toolbox: Collaborative Law

I was a skeptic. How could a lawyer agree to give up a major tool in her toolbox? What possible advantage might there be in agreeing not to go to court at the outset of a case?

Collaborative Law did not make a lot of sense to me. Why “lawyer up” if you intend to go to battle without your sword? After holding fast to that perspective for many years, a number of years ago I decided I needed to learn more. I reasoned that by going through the Collaborative Law training, it would affirm my view that Collaborative Law was an unrealistic path to help clients reach successful outcomes. However as is often times the case, something interesting happened. I started to see that alternative, non-litigation based resolutions were possible, and that by agreeing not to go to Court until they’d reached an Agreement, lawyers could actually work hard applying their legal knowledge to craft creative solutions with and for their clients. Although Collaborative Law isn’t always a viable path, when it is appropriate it can prove to be productive, and even healing.

As the Chinese philosopher Lao-Tse said, “What is soft is strong. Water is fluid, soft and yielding. But water will wear away rock, which is rigid and cannot yield. As a rule, whatever is fluid, soft and yielding will overcome whatever is rigid and hard.”

 

 

Toolbox: Mediation

This article is the second of a four-part “Toolbox” series. Each of these will briefly outline one of the four major approaches to handling a divorce, and how the Consilium process integrates the approach into its model.


I first learned to mediate while in I was in law school. I was trained with The Children’s Hearing Project in Cambridge, Massachusetts by a man named Patrick Phear, who had emigrated to the U.S. from South Africa and developed and was then teaching a new style of co-mediation. All mediations occurred with two mediators present, which provided a fabulous way for me, as a young mediator, to learn. Therefore, while in school I was learning the rules of the Courtroom, at the Children’s Hearing Project (CHP) I was simultaneously learning the art of negotiation.

AT CHP our clients were primarily teenagers and their parents, and many of their issues involved cultural differences between immigrant parents and first generation American children. The typical tensions between adolescents and their parents were laced with cultural misunderstandings and language dependencies of parents upon their children. I found myself being young enough to understand the adolescents and old enough to understand the parents. I liked being the fulcrum in the sea-saw of the conflict, and I found it gratifying to help them find common ground.

When I began practicing family law, mediation seemed like a natural fit for the inter-familial discord that was so often a part of that terrain. The model that is most often used by divorcing partners is that in which the two partners, along with the mediator, a neutral third party whose job is to guide them both toward a mutual understanding, work to achieve a Settlement Agreement. Mediation can be effective so long as both partners willingly disclose all of their financial holdings, neither party feels controlled or diminished by the other, and they are able to discuss the issues necessary to restructure their family. For some people, a confidential mediation can feel more comfortable than a public courtroom where grievances can sometimes be aired in such a way that the environment can feel hostile, and even escalate underlying points of discontent.

However despite its promise, there are times when mediation simply isn’t possible. If substance abuse, mental illness, emotional issues (rage or depression for instance), a history of physical abuse, or anything else makes one or both parties feel unsafe being in the room together, mediation is not an appropriate choice.

Consilium ® is built upon the foundation of understanding yourself and the other people in your family, so that if mediation is appropriate it can be incorporated into the restructuring of your family. It does not have to be an either/or alternative. For example, you may begin with traditional litigation, and then mediate all of the issues revolving around your children’s care and upbringing.

It is important to remember that even when people choose to mediate all or a part of their divorce, having legal counsel “in the wings” is important. It is inadvisable to attempt to resolve your family’s legal rights and responsibilities without a clear understanding of the law. Doing so can create future regrets and misunderstandings.

 

 

 

Toolbox: Traditional Litigation

This article is the first of a four-part “Toolbox” series. Each of these will briefly outline one of the four major approaches to handling a divorce, and how the Consilium process integrates the approach into its model.

Let’s start with traditional litigation. This is the kind of law that you’re probably most familiar with—where lawyers file suits, go to court, and carry out other standard legal processes.

Contrary to what you may believe, this is not the only way that people handle a divorce. Today, there are several other ways to divorce and restructure a family, but many people assume that ALL divorces involve a courtroom battle and flashy arguments about how their marriage has fallen apart.

That being said, there are times when traditional litigation is the best—or only—choice. I recall handling cases where out of the country removal of a child was contested, where mental illness of a parent precluded her ability to parent her daughter and precluded her ability to recognize that fact, where I was appointed by a Judge to represent at child as the Judge felt the parents were so self absorbed in their own issues that neither of them were adequately attending to their son’s needs, and where a woman thought her husband was having an affair, knew he was abusing her mentally and physically and was certain he was mishandling the family finances. In each of those instances, discussion, mediation, and collaboration were not possible avenues. In situations like those, there is no choice but to use the structure of the court system.

Despite the need for traditional litigation, things can get difficult when lawyers treat a divorce case like a property dispute, arguing over custody or alimony as though they are haggling for a sale rather than playing with the lives of two people and their children. With the Consilium process, we stress the importance of the people involved, so that when traditional litigation is the best path to tread, it can still be handled in a way that will honor and be favorable to all the people affected by it.

 

Knowing the Tools in Your Toolbox

When most people think of hiring a lawyer, they approach it like a straightforward transaction: you meet them and tell them what you need, and they figure out how to do it for you.

This is an overly simplistic understanding of what lawyers do, informed by movies and popular stereotypes. The ‘lawyer stuff’ that you see on TV and in the movies is part of a lawyer’s job, but it’s not as simple as all that.

In reality, practicing law—especially divorce law, which deals with people’s lives rather than just property or points of debate—is a lot more complex. There are four major approaches to handling a divorce:

  1. Traditional Litigation: This approach is the one most people are familiar with, where lawyers file suits, go to court, and carry out other standard legal processes.
  2. Mediation: In mediation, the two partners sit down with a neutral third party, who is not advising or advocating for either side, but instead is trying to help the two parties reach a mutual understanding before moving forward with filing and doing all the other ‘usual’ legal stuff.
  3. Collaborative Law: Collaborative law involves five people: the two partners, their lawyers, and a coach (generally a therapist) who ‘takes the emotional temperature’ of the room. The lawyers serve as advocates for each side, but the whole process is more open than in most litigation.
  4. Arbitration: Think of this as “private court”- the two partners and their lawyers make arguments and discuss their issues in front of one Arbitrator (often a retired judge), who then makes a decision based on what they present.

Each of these has its’ own particular advantages and disadvantages. By engaging in The Consilium Process, clients are education about what their choices are and why one or another might be the best path for them. As a result they can then make an intelligent, informed decision about how they want to proceed with the restructuring of their family.

For the next few weeks, I will be writing a series of “Toolbox” articles, which will discuss each of these four approaches in depth, to help you understand what they entail, and whether this approach is right for your particular situation.

I want you to know what tools are in your Toolbox, so that you can pick the right one for the job you have ahead of you.

My Father, My Mentor- on the 100th anniversary of his birth

As I was preparing to write and send out my next blog, I realized that I would be sending it out today, the 23rd of June, which would have been my father’s 100th birthday.  As I practiced law with my Dad for ten years, and learned most of my Courtroom skills by his side, I wanted to take a moment to reflect on him and how I came to be practicing as I do.  As an aside, and out of curiosity, I just pulled my grandfather’s 1914 law diary off of my shelf to see if he’d made note of my dad’s birth.  Sure enough, he had.  As a study in both contrast and change, I’m attaching his diary notation, alongside my newest Consilium ® Divorce Consultation card.

It seems like only yesterday when I would be leaving the office for Court and my Dad would call out “come back with your shield or on it”.  When a powerful adversary was on the other side of a case, he would say “you can’t sharpen knives on butter”.  As for ethics, he told me if you have to ask the question, the answer is No”. He told me those words had been told to him by his father, and he passed them on to me in the spirit of summing up all you needed to remember about honesty, integrity, and compassion when handling other people’s money and problems.

When I became pregnant with my oldest child, my father wondered whether I might want to stay at home and leave the practice of law.  I didn’t want to do that with my first (I still had too much to learn about lawyering).  With my second, I cut back to part-time.  With my third, he said to me “My father made this practice work for him.  I made it work for me.  You need to figure out how to make it work for you”.  It was his blessing as it were for me to reframe, revise and rethink.  I am grateful for his words, his lessons, his mentorship, his inspiration and his encouragement for me to “think outside the box”.

I dedicate this blog piece to the memory of my father, J. Chester Webb, Esq.

Check and Mate

Consilium Series- Entry #2

Law School has classes on many different aspects of the legal system (Contracts, Property, Civil Procedure to name a few)—but there’s one very important subject that they don’t have in the curriculum: Empathy.

I remember one case I had, years ago, where the opposing lawyer was a very clever man, and very litigious—but lacked any sense of empathy. He did a number of things in court that were within the bounds of the law, but just, and often manipulated people and situations to further his case.

He treated the case—which involved two children, (two and five years old)—like a chess game. He wanted to win, not for the sake of the people involved, but for his own sense of pride and ego.

Unfortunately, there are parts of the American legal system that reward this kind of behavior. Getting a reputation for being a tough litigator or always fighting can be a strong selling point for a lawyer; there are potential clients who believe that they want a lawyer who will go to battle for them—rather than someone who they trust to be looking after their best interests.   Sometimes Courtrooms and Judges are the only way conflicts can be resolved but in truth that is much less of the time than not.

And this idea is perpetuated in the media. Even if they’re not a ‘criminal lawyer’ like Saul Goodman from Breaking Bad—courtroom dramas like To Kill A Mockingbird and Twelve Angry Men depend on clever twisting and turning, or trapping people in lies and mistakes. Even when they’re well-intentioned, these legal plots depend on finding that ‘Aha!’ moment, rather than being empathetic to everyone involved. (Obviously, that makes for better drama, but it still pervades the public consciousness.)

This is one of the paradigms I’m trying to shift through the Consilium Process.  When I help families restructure, I want to assist them in creating equitable and forward thinking solutions for their family as a whole. It’s not just about the thrill of trapping someone and getting to yell “Checkmate!”

Consilium Conception-Blog series #1

 


“Why do you think you’re getting divorced?”

“Honestly? I have no idea.”

This exchange happened years ago, early on in my career. I was taking the deposition of a man whose wife I was representing in a contested custody dispute. Both parties were pediatricians.  I recall the judge noting that they were both overly invested in their children.  It was true that they could not see the forest through the trees.  And during the divorce process they were unable to separate their needs from those of their children.

Although his wife was immensely unhappy in their relationship, he was immensely self-absorbed and unable to notice that long ago she had given up trying to communicate with him.  When his wife told him that she wanted a divorce, it took him entirely by surprise.  That is why during the deposition, many months later, he still did not understand.

Over the years, incidents like this have led me toward what would eventually become the Consilium Process. Despite the fact that I was representing his wife, I could see his pain and the fact that he didn’t know how to deal with his impending divorce. The inevitable fallout from their continuing lack of communication would do nothing to enhance their co-parenting.

Now when I begin working with a client, I take a “bird’s eye view” of the case.  After understanding the financial underpinnings of a marriage, my priorities shift to understanding my client’s personal, family and marital history.  It is only after doing that that I can gain clarity into how best to help them restructure their family as they move forward.  Despite the thousands of family restructurings I have been privileged to play a role in, no two have been alike. I need to understand where the pieces fell apart before I can offer helpful solutions for putting them back together differently.  I also need to help clients identify their new hoped for destination.

Divorce can be a win : win.  But only if we change the focus from trying to ‘win’ by getting the biggest settlement or the most time with the kids, to trying to ensure that everyone (parties and children if they exist) ends up as whole as they can after the dust has settled.

 

 

 

Why The Consilium Process?

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NOTE: Previously, I have used my blog to write about divorce related legal issues. But in light of the US Patent Office having recently recognized the uniqueness of the Consilium Process and therefore allowed my use of the name to describe my work in divorce consultation, as well as my desire to address the numerous times I have been asked what it is exactly that I am doing differently, I have decided to restructure the blog in a way that will help people understand what I’m doing that is unique, and also give you updates about my work as it progresses.

When you practice divorce law, there are moments when it would be useful to have a background in psychology; likewise, there are times as a psychologist, psychiatrist, social worker or other mental health provider when it would be useful to be able to better understand divorce laws.

Unfortunately, there is not a lot of intersection between what is taught in the programs that lead to these separate fields. I find myself—as someone who has had training both in Education and Psychology (Harvard University, Ed.M., 1980) and in Law (Suffolk University, J.D., 1986) —in a unique position. Over the years, I have found myself in a number of situations where being able to look at things from a psychological standpoint has helped me gain clarity on a legal issue, and in situations where having a deep understanding of divorce, asset division, custody and related laws has allowed me to give clients context as well as counsel around those complex emotional concerns.

This is how I came to the idea of creating the Consilium Process: a hybrid that merges psychology and law to help people prioritize their legal, financial and personal goals.  Through the Consilium Process clients are educated about the laws and the legal process choices available to them.  They are then able to thoughtfully plan and proceed toward the restructuring of their life and that of their family as well as make use of the Consilium Process to retain appropriate legal counsel.

I will be writing a series of blog posts about the Consilium Process, my early experience as a lawyer, and various anecdotes which led me down the path toward creating Consilium. I am looking forward to sharing these stories with you, and hope that you are interested as well.

 

Blog Posts managed and edited by Adam Singer