Navigating the Emotional Waters within Collaborative Family Law

The Collaborative Practice Team of Professionals as your “crew” when the sailing gets rough.  ed. 

People are becoming increasingly vocal about the fact that lawyers and the legal system are not equipped to properly address the emotional issues involved in family law matters.

Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote in her book titled The Good Karma Divorce (Lowrance, 2010), “The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering.  Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class.”

In a recent interview, Kathleen McCarthy, Judge in the Family Division of the Wayne County Circuit Court in Detroit, Michigan said the following:  “I think explaining what a courtroom can and cannot do for their client is important. Clearly a courtroom and a judge are not equipped to deal with their client’s emotional needs, and clearly the emotional situation involved in a divorce is the most significant…. I always recommend that lawyers help their clients speak with a therapist….” (Couvrette, 2012)

Family court Judge Bruce Peterson of Hennepin County, Minneapolis has stated that “far too often, courts increase hostility, create pain, make emotional wounds worse, and drive families apart.”   (Peterson, 2012)

I recently heard Judge Susan Lopez Giss, a family law judge in the Los Angeles Superior Court, state that “family law is and always has been a hybrid area of law because in addition to the law, it involves families, emotions, and finances.” (Lopez-Giss, 2012)

In 1990, before it was acceptable for attorneys and judges to publically state such opinions, Stuart G. Webb invented collaborative law.  Collaborative divorce is a process within which to resolve family law issues in a fair and respectful manner, without going to court.  It is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator.  Both mediation and collaborative divorce involve interest-based negotiation[1].  However, in collaborative divorce, an interdisciplinary team is assembled of attorneys, mental health, and financial professionals working interactively with the clients as co-equals.  The attorneys guide the clients through the legal process to reach a negotiated settlement.  The coaches assist them in managing their anxiety, improving the way in which they communicate with each other, creating an effective parenting plan, and restructuring their family.  The child specialist is a neutral third party whose job is to understand the situation from the perspective of the child(ren) and to advocate for their interests.  The financial professionals help to educate the clients regarding the best ways to divide their assets, and to plan for the financing of two households.

One would expect that since collaborative professionals are using mediation techniques in a multi-disciplinary team approach to dispute resolution, the professionals involved would be trained in both mediation and in the collaborative process.  Unfortunately, as with many things in life, it is not wise to make assumptions.  Some collaborative divorce organizations require their members to receive training in collaborative practice, mediation, negotiation and communication skills, and annual continuing education.  However, such organizations are the exception rather than the rule.  Therefore, it is incumbent upon the clients to ensure that each of the professionals involved on their team have such training.

In any event, the result is that we are able to support them through their transition in a knowledgeable, compassionate and non-adversarial way so that they are able to make the best decisions for their family. The attorneys pledge to not litigate the matter or threaten to litigate the matter. The reason for this pledge is that litigation/judicial involvement is one way of solving a problem. If that means of problem solving is available to collaborative practitioners, they will more likely resort to that option rather than assisting the parties in developing more creative, constructive and effective alternatives for the clients and their family. If the case cannot be settled, and the process of collaboration fails, the same attorneys cannot be involved in any future litigation.

Rarely is a legal problem purely legal, especially in family law. Almost all disputes involve emotional and interpersonal dynamics. Successfully resolving those disputes requires skills beyond those traditionally taught in law schools. Collaborative divorce incorporates all of the skills needed to increase the likelihood of a successful outcome for the client through its interdisciplinary team approach to divorce.  In other words, the spirit of collaborative divorce is its interdisciplinary team approach.

A collaborative divorce begins with the signing of a Stipulation and Order Re Collaborative Law Case, in which the parties agree not to litigate.  Unfortunately, since its inception, people both within and outside of the collaborative law community have focused on the stipulation not to litigate as the hallmark of collaborative divorce.  As a result, collaborative divorce teams may or may not be interdisciplinary.  After all, doesn’t a case become a collaborative divorce upon execution of the Stipulation and Order Re Collaborative Law Case, even if the only professionals on the team are collaboratively trained attorneys?

Until recently, I was one of nine Directors on the Board of one of my collaborative divorce practice groups.[2]  We recently had a Board retreat wherein we discussed this issue in great detail.  We unanimously agreed that the spirit of collaborative divorce is its interdisciplinary approach and not the stipulation not to litigate.  After all, do the lawyers somehow miraculously acquire the training to appropriately handle the emotions involved in family law matters by virtue of executing a stipulation not to litigate?

A colleague of mine, Patrice Courteau, who happens to be both an avid sailor and a collaboratively trained mental health professional who serves as both a divorce coach and child specialist on collaborative divorce teams, shared with me the following comparison she makes between a sailing team and a collaborative divorce team.  Sailing is a complex setting with many unique tasks occurring simultaneously to attain the common team goal. The team goal in sailing is to make the boat travel through the water with great speed.  Each team member’s function is crucial to the success of the sailing team. Whether you are grinding the winches, trimming the sails, or steering the ship as the helmsman, your performance plays a substantial role in the team’s overall sailing success.

The elimination of a team member does not eliminate the function itself.  Instead, another team member would be required to perform multiple duties.  However, that team member will most likely be better suited for one position than the other.  Moreover, they will not be able to perform either task at the optimal level because they will be responsible for both simultaneously.  Do you think that a partial sailing team would win a competition against a full team?  If not, what makes you think that a “collaborative team” that is not interdisciplinary can be a winning team?  After all, as Judge Michele Lowrance so eloquently stated, “attorneys are not trained to reduce this kind of suffering.  Divorcing people expect relief far beyond what the legal realm can provide from their attorneys….”

Many people going through a divorce expect their attorney to “explain and help them to navigate the treacherous waters of the divorce process.”  They believe that “unless an attorney can serve as both advocate and counselor, they are not performing their job properly.”  They remind us that “family law attorneys have been advising clients of varying emotional sensitivities for centuries.”  They point out that “attorneys are perfectly capable of explaining to a client that emotions cloud judgment and that they may well regret making an emotionally based decision.”  Attorneys can “hold a client’s hand”, “offer them a tissue or their shoulder to cry on”, “offer words of comfort and encouragement”, or “serve as a sounding board.”  An attorney can even “reduce a bill to show solidarity or to provide much appreciated relief.”  They may even “treat a client to lunch and just shoot the breeze, so that the client can relax, not feel that the attorney-client relationship is rigidly restricted to talking shop, and develop trust.”  By the way, the above-referenced quotes were actual statements made by attorneys in a LinkedIn[3] discussion regarding the use of divorce coaches in the divorce process.

While it may be expressed in many different ways, family law is 90% emotional and 10% a combination of legal and financial aspects.   The emotional component involves “uncoupling” and the divorce itself consists of the legal and financial aspects.  People going through a divorce understandably and appropriately expect their attorney to “explain and help them to navigate the treacherous waters of the divorce process.”  However, those aspects of the “case” are only a small fraction of the issues involved.

It should be noted that according to Merriam-Webster’s Collegiate® Dictionary, 11th Edition, the following are synonyms for counselor-at-law:  “advocate, attorney, attorney-at-law, counsel, counselor, counselor-at-law, and legal eagle.”[4] (Merriam-Webster, 2013)  A “counselor” as that term is used for an attorney means “one that gives advice in law and manages cases for clients in court.”[5] (Merriam-Webster, Counselor, 2013)  A counselor-at-law is not a mental-health-professional-at-law.  Thus, when someone says that “unless an attorney can serve as both advocate and counselor, they are not performing their job properly,” aren’t they just using three different words that mean exactly the same thing and pretending they have different meanings?  I completely agree that if an attorney does not fulfill their role as an attorney, they are not performing their job properly.  By the same token, unless a captain can serve as both commander and skipper, they are not performing their job properly.

It is very true that an interdisciplinary approach to family law matters “flies in the face of what lawyers alone have been doing for hundreds of years.”  However, does that mean that a better way to divorce does not exist?  Many things have improved significantly over the centuries.  For example, travel by sea in the late 18th and early 19th centuries was challenging, harsh and potentially very perilous.  Travelers experienced months of uncertainty and deprivation in confined accommodations, with the constant risk of shipwreck, disease and piracy.  Modern day sea travel is significantly faster, safer and more luxurious.  Why is it that the family law process is infinitely slower, less physically and emotionally safe (and to more than just those involved in the process itself), and far more excruciating than in days gone by?  Otherwise, people would not be increasingly vocal about the fact that lawyers and the legal system are not equipped to properly address the emotional issues involved in family law matters.  If the court system and attorneys were capable of handling family law matters in the best possible way, we would not be hearing such complaints.

“Attorneys are perfectly capable of explaining to a client that emotions cloud judgment and that they may well regret making an emotionally based decision.”  Indeed, logic and reasoning are particularly important in the practice of law.

As good as a ship’s crew may be, if the ship is in the middle of the ocean with no land in sight, a broken navigation system and atmospheric conditions that prevent any visibility of celestial bodies, the crew would have no idea which direction the ship is headed.  Under such circumstances, it is very likely that the ship will veer off course.  In fact, ships frequently hit rocks, run aground, veer off course, and possibly sink as a result of a loss of navigational power and steering control.

Ship crews use their navigational skills and/or devices and steering controls to sail the boat or drive the ship from point A to point B.  If they are unable to use those skills, devices and/or controls, it would take a miracle for them to safely get the vessel to its intended destination, especially if they are in the middle of the ocean with no land in sight.

Lawyers use logic and reasoning to get their clients from point A to point B.  However, what does that have to do with the client?  If the client’s cognitive understanding and reasoning skills are impaired, how is the lawyer’s explanation of any help?  In essence, the lawyer believes that they are moving the case in the intended direction, but based upon their use of a faulty navigational system.

A “Stress Assessment” based upon the Homes and Rahe Life Change score (Holmes TH, 1967) established in the late 1960s is still validated by most mental health experts.  The death of a spouse or child is the highest level of stress that one can experience.  Approximately 75 percent of couples who lose a child to death ultimately divorce because of the way in which they handle the stress. (Hardt)  When someone loses a spouse to death, they are unable to act out against that spouse for leaving the marriage because the spouse is dead.  Almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse.  The stress of a divorce comes second only to the death of a spouse.  Moreover, when it comes to divorce, certain aspects of loss become slightly magnified.  In other words, the manner in which people process and manage the stress and loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship.  Additionally, I would like to point out that marital separation falls just below divorce in the stress assessment.  What is disappointing to me is that nothing has been done to alter the way in which people are encouraged to handle the grief resulting from the death of a marriage (or a non-marital relationship involving children).

Studies over the past 30 years or more have found that I.Q. performance levels can decrease by 25 percent and their analytical reasoning scores can drop by 30 percent (Blackpool, 2002) from low stress to high stress and this applies to everyone from children to corporate leaders. When a person’s stress level is sufficiently elevated, their ability to fully and effectively use their cognitive ability and emotional intelligence in tandem to make timely and effective decisions is significantly impaired. If the elevated stress becomes high enough for a long enough period of time, however, deleterious effects will follow regarding the “higher” level thinking processes, e.g., logic, analysis, decision making, etc.—a significant portion of the IQ. Too much stress results in a drop in cognitive ability (including IQ) and an oversensitive heightened state of emotion. A person loses a significant amount of ability to “control” their emotions, thus becoming temporarily less emotionally intelligent! Stress reduces a person’s ability to fully access their IQ and emotional intelligence abilities. This results in displays of some or all of a characteristic set of deleterious behaviors, such as: not listening; over-analyzing; stops making decisions; makes “emotional” decisions; “flip-flops”; makes reactive, short-term, fear-based or anger-facilitated decisions; acting in such a way as to satisfy the minimum requirements for achieving a particular result; hedonistic; or the failure to notice something in plain sight. (Thompson, 2007)

Earlier, I pointed out that “almost all experts agree that one should avoid making any major decisions within the first year following the death of a spouse.”  The reason for this advice is that the temporary decrease in one’s IQ performance level lasts for approximately one year when the person has suffered such a great loss.  In a divorce, the temporary decease in one’s IQ performance level lasts until approximately 1 ½ years after the divorce has been finalized. (Divorce takes 18 months to get over, 2009)  Thus, the “effective decisions” our clients make may very well be “significantly impaired.”  The assumption that because a client is an adult, that they are thinking clearly and want what they say they want or think they want is a very big assumption.  Doesn’t that mean that the navigational system used by the lawyer to get their clients from point A to point B is malfunctioning?  If so, what makes the lawyer believe that the case is headed in the direction most suitable for their particular client, by virtue of their use of logic and reasoning alone?  The answer, unfortunately, is a lawyer’s paternalism.

Paternalism occurs “when people in authority think or act in a way which results in them making decisions for other people which are often to their advantage but which prevent those people from taking responsibility for their own lives.” (Cambridge University Press, 2013)

In the chapter titled “Paternalism, Power, and Respect in Lawyer-Client Relations” in Handbook of Justice Research in Law, W. L. Felstiner explains how and why lawyer paternalism results in unsatisfactory results and dissatisfied clients. Due to their emotional state, family law clients are often unable to make informed and competent decisions. The “temporary incompetence” of clients due to their emotional state and the attorneys’ paternalistic attitude toward clients create a lack of understanding on the part of both the attorney and the client. (Felstiner, 2000)  This is the legal equivalent of a ship that hits rocks, runs aground, veers off course, and possibly sinks. As with ships, this tends to occur as a result of a malfunctioning navigation system. By restoring or at least improving the clients’ decision-making capacities, we repair the navigation system and thus solve the problem.

A ship’s faulty navigation system can be repaired by marine mechanics trained in navigation repair. Boat mechanics perform maintenance, installation and repair work on marine vessels, particularly on their mechanical components. Most boat mechanics attend a technical training program to learn the skills they need. The skills, training and job duties for marine mechanics differ from those for a ship captain. The same holds true for attorneys and mental health professionals. As Judge Michele Lowrance so eloquently stated, “attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys….” The good news is that mental health professionals are trained in restoring or at least improving an individual’s decision-making capacities. They are thus able to help individuals to “navigate the treacherous waters of the divorce process.”

Divorce and loss go hand-in-hand. 

Divorce, like death, involves coming to terms with loss.  There is a sense of loss in all divorce, regardless of the circumstances. There are many reasons and many varying degrees in which divorcing couples react to the loss of partnership, loss of self, loss of trust, loss of hope, loss of security, and loss of family as it was known….  The loss of the dream may be the overall loss that tends to stay with people the longest. There are immediate dreams that are lost, like a vacation that has been planned, an upcoming event to be shared as a family, and basic time spent with spouse and children. There is the loss of the dream that marriage means forever, and will be grounded on values of commitment, love, forgiveness and trust. There is the potential loss of continued relationships with the exes’ family or friends that can be an enormous loss, and often occurs in the case of a high-conflict divorce….  There is also a mistaken attempt to recover a perceived loss of self esteem. Self esteem is threatened when the love and respect of marriage is replaced with the pain and hurt of divorce….  How a person responds to the loss of the original family system will have an enormous impact on the divorcing couple and their children.

Divorce is usually conceptualized as a stress process or as a grief process….  Grief represents the particular reactions that a person experiences while in a state of bereavement (Sanders, 1992[6])….  The psychological process of divorce, in many ways, parallels grieving the loss of a loved one, but with one fundamental difference: in divorce, the one who has died to you is usually still in your life (Netter, 2002[7])….  Divorce, unlike death, is not final….  It is only when the divorcing person can mourn the death of the marriage and understand grief that he is able to stand next to that ‘corpse’ at a special event and see her as a parenting partner and someone he once loved and then lost….  Grieving is an important part of the divorce process….  Grief is experienced psychologically and cognitively through painful feelings, thoughts, and attitudes….  The loss experienced in divorce goes beyond loss of spouse….  The personal intensity and the power of one’s grief is based on his individual meaning of the loss….  The ambiguous feelings of grief brought by the death of a marriage usually are a mixture of shock, denial, hurt, abandonment, anger, bitterness, panic, hatred, and even relief or excitement….  Feelings of loss and hurt are often times so overwhelming that one or both people in a divorce choose, consciously or unconsciously, to avoid those feelings and replace them with anger and hatred….

Mourning the losses is recognized as essential to the divorced persons’ adjustment and to their ability to go on with their lives (Baum, 2003[8])….  In high-conflict divorces, it is often the case that one person has already started to grieve the loss of the relationship while the other is only beginning to grieve when divorce is decided….  In order for couples to achieve the goal of positive cooperation they will each need to grieve the losses in divorce, and they will each need to understand that change begins with oneself and not with one’s partner.  When the loss of the original family system is not grieved a predictable cycle of conflict will continue….  Unresolved grief prolongs and promotes conflict. Ongoing conflict does not allow for productive and cooperative co-parenting….  Denying grief promotes the feelings of hurt and bitterness….

The divorce process emphasizes the legal battle and often does not allow time for the divorcing couple to tackle the battle of grief. The emotional divorce precedes the legal divorce, often by years, and sometimes is not completely over with until long after the marriage has ended. It is the psychological, rather than the legal, ending of a marriage that makes the ‘true’ divorce (Whitehead, 1997[9])….  Revenge, stemming from hurt, is a safeguarding mechanism pursued through conflict.

Kressel (1980[10]) characterizes the divorce process as ‘one of the more demanding tasks that rational beings are expected to perform’ (Goldenberg & Goldenberg, 2008, p. 43[11])….  Working through the stages of grief is an important component for legal professionals and mental health professionals to understand when working with the high-conflict divorcing couples.  While families of divorce can benefit from early intervention to reduce levels of parental conflict and potential litigation, the ability to help divorcing parents co-parent in a civil and cooperative manner requires greater understanding of factors that impact their post-divorce parenting (Banach & Sales, 2002[12]). Resolving conflict and grief will provide an environment of hope over hostility, cooperation over control, and acceptance over animosity….  The couple who understands this and gets help coping with the grief, especially in high-conflict divorces, can reduce the amount of anger and conflict in their own lives and the lives of their children….  Dealing with grief and understanding the loss and hurt from the beginning can help reduce conflict that any new stressors may bring over time. (Livingston, 2012)

The loss may be perceived or real and it may or may not be exaggerated. 

For obvious reasons, people fear such losses.  Unfortunately, the fear of loss can stop us from doing things we want and need to do.

‘Fear of the unknown’ and ‘fear of being alone’ are examples of the participants’ hesitating lifestyle. A person’s lifestyle comes into play and can have an enormous impact on how the divorcing person responds to fear. The embedded mistaken conviction about ‘fear of being alone’ may cause a person to feel out of control, but unable to identify exactly what is happening to him. When a couple attaches their sense of security and self-esteem to the other person, the fear of being alone is a mistaken belief that being alone means being unimportant, unwanted, and a loser. ‘Most couples don’t know that it is fear that drives them and fear that drives the conflict’ (Stacer & Semen, 2000, p. 246[13])…. (Livingston, Grief and High Conflict Divorce, 2012)

As with loss, a person may have a false or exaggerated sense of fear.    

Simply put, in a divorce situation with conflict, if a wife feels betrayed by her husband, she may not only perceive that he is not honest about financial situations, but by self-reinforcing, she will look for ways to make that true and possibly even create situations to prove it. She may look at each financial discussion and decision as a betrayal to reinforce her perception that her husband is not ever honest about money. The impact that self-reinforcing has on the divorce process will enhance conflict and keep the cycle of self-reinforcing in constant motion….

Their beliefs, behaviors, and ways of responding to each other can create the conflictual divorce. Understanding their beliefs, behaviors, and finding better ways to respond to each other can create a cooperative divorce. (Livingston R. M., 2012)

Fear causes a variety of reactions depending on the intensity, timing, and coping options available. The reactions include:  (1) fight; (2) flight; or (3) freeze.  “Moreover, this same stress response kicks in, to the same degree and intensity, even when the threat is wholly imaginary.” (Seaward, 2006)

Originally discovered by the Harvard physiologist Walter Cannon, the ‘fight or flight response’ is a mind/body reaction triggered by excessive stress, internal worry or external circumstance. Neil F. Neimark[14] describes the response as excessive and exaggerated fear and being stuck in survival mode:

We can begin to see how it is almost impossible to cultivate positive attitudes and beliefs when we are stuck in survival mode. Our heart is not open. Our rational mind is disengaged. Our consciousness is focused on fear, not love. Making clear choices and recognizing the consequences of those choices is unfeasible. We are focused on short-term survival, not the long-term consequences of our beliefs and choices. When we are overwhelmed with excessive stress, our life becomes a series of short-term emergencies. (Neimark, 1998,

This is also when mistaken beliefs come into play…. (Livingston R. M., Grief and High Conflict Divorce, 2012)

“Generally speaking, men are prone to act more hostile while women have a proclivity to be more nurturing….  Women have an inherent nurturing response for their offspring.” (Seaward, Managing Stress: Principles and Strategies for Health and Wellbeing, 2006)  How do you think this might play out, when women fear for the safety of their children, even if that fear happens to be exaggerated or even imagined?

“We estimate the risks and vulnerability of the threat almost instantly and then fight, freeze, focus, or flee based on this assessment.” (Beaumont)

Anger prepares us to fight an adversary.  When one’s reaction is to fight, “you decide to face the threat.  You can decide to fight, or you can become composed and consider your constructive options.” (Beaumont, Fear: Imminent Danger)

Anger is an important and vital emotion when there is loss….  Anger is a necessary part of the grieving process and is one of the strongest emotions in high-conflict divorces….  Anger is a reaction to the divorce and the process, and pain and hurt are the underlying feelings that should be addressed….  Anger is inevitable and can be useful in high-conflict divorces….  Anger serves as a way to cope and gather strength to take action rather than deal with overwhelming sadness. Anger can propel the divorcing couple to accomplish specific tasks in stressful situations, like having discussions about finances or children’s schedules. Anger can be useful when conveying wants and in negotiating decisions required in a divorce.

Anger may also lead to revenge, the ultimate ‘fight’ response, and can be the most destructive emotion surrounding divorcing couples. There is an important distinction to make between rational anger and emotional anger in the divorcing process (Somary & Emery, 2008[15]). Rational anger arises from such realistic fears as becoming separated from one’s children or having to cope with a reduced standard of living. Emotional anger, rather than being a reaction to a substantive issue, is rooted in the psychological pain of the failed marriage and the self perceived (misperceived) loss of self esteem or worth (Barsky, 1993[16])….  In a divorce filled with conflict, the anger and hatred are attempts to restore self-esteem….  Emotional anger could stem from a mistaken conviction of, ‘My worth depends on being married.’

Divorce triggers angry ‘fight’ responses when a sense of threat in divorce invades a person’s reality…. Anger occurs when something you don’t want is happening or when something you do want isn’t happening….   The wanting and not wanting something to occur is a source of personal power. Understanding that there is a want within anger could help the couple focus on important issues and move away from loss….  As a professional, it would be important and helpful for the divorcing couple to understand this concept from the beginning of the process. Divorcing people will hold on tight to the things they desperately want or don’t want in order to seek control in a desperate situation….  Understanding that there is a want within anger could help the couple focus on important issues and move away from loss….

Anger that is expressed to a spouse or about the spouse may feel good and in fact, may be a useful push back or self defense. Infidelity, gambling, constant put-downs, and abuse are some obvious examples of behaviors that could coincide with anger. The question is, how one’s anger will be useful and help move one toward closure? In high-conflict divorce, the behaviors that coincide with feelings of anger that grow into a battle, do not allow grieving, and may set up a win-lose situation. Anger can be, and many times should be felt….  It is not the anger that needs to come out, but the pain (stress) that underlies the anger. It is not the anger that is legitimate and right, but the human suffering that must be acknowledged and explored” (McKay et al., 1989, p. 56[17])….

Staying stuck in anger can be dangerous. Couples who stay angry may be avoiding the pain of loss….   Divorcing spouses who reach acceptance understand that anger comes from pain, hurt, disappointment, shame, loss and grief….  Angry spouses, unwilling to accept their grief, often litigate furiously and repeatedly. This may also be a way for them to mistakenly recover the self-esteem taken from them by the other. This blocks the more normative grieving process that eventually would allow them to stop battling (Ehrlich, 2001[18]). There is a failure to see that the feelings of pain, hurt, and fear are the strong emotions that are driving the anger….

Anger keeps divorcing couples from seeing the good qualities in ex partners, and their perceptions of the other become blurred when conflict arises in divorce. One person might respond with anger and seek revenge, while another might respond with courage and hope for the future. When understanding the grieving process, one can learn that what feels like hatred and anger toward an ex-spouse can, and should, coincide with feelings of love and affection and the memories grieved when that partnership is ending. Grieving allows the divorcing couple the opportunity to choose the way they want to act and react to the intense feelings that divorce brings. It also defines the way they will survive a loss….

In cases where there is conflict, with intense anger and pain, the couple is thrown into a legal battle where, instead of grieving the loss of the marriage, they are immediately forced into one winning and one losing side….  The painful and emotional process between one man and one woman, one father and one mother, simply put, two human beings, becomes a process of introducing other people and professionals who are choosing sides and creating two opposing camps: his and hers. “The alignment of professionals and others on one side or the other tends to escalate spousal conflicts, contributing to the damaging effects of the divorce on family members, especially children” (Ehrlich, 2001, p. 307)….

It is important for legal professionals to understand that spouses in high-conflict divorces tend to distort reality in order to protect their self-esteem and avoid overwhelming feelings of pain and grief….  It is how one perceives the emotions resulting from the grief that allows a reduction in conflict in a divorce….  With the absence or denial of grief, conflict becomes an on-going issue…  A person who denies a spouse’s attributes, the attributes that were viewed as mainly positive and added value during the marriage, is trying to hold on to whatever self-esteem she has left. Affection and appreciation are no longer options, because they are too painful. Denial and distortion become coping mechanisms for feelings of grief, shame, and rejection. It would be helpful for the divorcing couple to understand that the love, affection, and admiration that was felt during the marriage may now be unbearable for one or both individuals during the divorce process. The following are examples of basic distortions that may take place.

*The breadwinner who was valued and respected for providing security and stability in the marriage becomes the greedy ex-spouse.

*The stay-at-home spouse who was viewed as nurturing and providing emotional security and stability for the children in the family becomes needy and lazy.

Erlich states that:

The psychological factors that distort the divorcing partners’ view of family dynamics and circumstances are crucial for lawyers to understand so they can offer alternatives and responses that calm the storm rather than add to it. The distortion in these divorces can be understood in terms of the painful emotional process of trying to disengage from a loved one. (Erlich, 2001, p. 308)…

An article in the American Journal of Family Law defined high conflict as, ‘a situation in which one or both parents involved in the conflict cannot or will not let go of their marriage battle, and because their conflict continues to disrupt the adjustment of family, frequent intervention by the court system is required’ (Stacer & Stemen, 2000, p. 242). In many high-conflict divorce cases, it is not an exaggeration to say that deep personal suffering is frequently encountered among children and their parents (Sparta, 2008[19]). Child custody is one reason that high-conflict cases take up a large percentage of the court’s time. One reason is that conflict does not end when the divorce is final. The divorcing couple and the professionals involved in the divorce would serve the family better if they understood grief and loss and understood the underlying emotions and behaviors that result in on-going conflict. ‘Lawyers operate on the expectation that the conflict will be resolved with the firm decision of a court order. Psychologists operate on the expectation that the cooperation of parents will occur through therapy and education with a promise that more visitation will be given upon their compliance’ (Stacer & Stemen, 2000, p. 242)…. (Livingston R. M., Grief and High Conflict Divorce, 2012)

On the other hand, if a person’s response to fear is flight, they may become quiet, withdraw socially, back away, become depressed, internalize their response or abuse substances.

Escaping the fear and the anxiety is automatic for some individuals.  They may go to bed to hide from the world until they feel less afraid. They may try to ignore their suffering and push it aside through working excessively, overeating, over-exercising, or any activity that numbs the fear.

They may have difficulty taking action even when doing so is critical. (Hall, 2012)

In a family law case, the flight response to fear might be evidenced by procrastination, failing to respond, or caving into the pressure.

One way of avoiding unwanted feelings is by procrastinating.  A spouse might postpone necessary tasks, such as communicating with an attorney or gathering documents.

Procrastinating enables these [individuals] to avoid making decisions and absolves them of responsibility for the outcomes of their cases.

Procrastinating in divorce is one of the worst mistakes a [person] can make for a number of reasons. First, completing the tasks necessary to get divorced can be very labor intensive, especially in cases involving long term marriages, complex assets, lengthy separations, and litigation. When a [person] procrastinates [they] may later find [themselves] under court-imposed deadlines or lacking in vital information that [they] need to make long-term, life-altering decisions.

Second, by procrastinating, a [person] can severely limit [their] options. This is often the case when a [person] files a motion with the court, sets a hearing date, and the [spouse], who may have had several months notice, does not meet with an attorney until a few weeks or days before the scheduled hearing. Because of the impending hearing date and deadlines that may have already passed, many good attorneys will not take [their] case. And, if a [person] can’t find an attorney before the hearing, [they] will probably miss deadlines, be unprepared for the hearing, and may suffer irreparable damage.

Lastly, procrastination can lead to complications like assets disappearing, debts being incurred, and property values depreciating….  One of my great mentors, a top family law trial attorney in San Francisco used to say: ‘Divorce is not a fine wine. It does not get better with age.’ For the most part, he was correct so, avoid procrastination and take consistent action to promptly finalize your divorce. (Taylor)

One might also avoid unwanted feelings by failing to respond.

Perhaps one of the most detrimental mistakes a [person] can make in divorce is failing to respond. Failing to respond to one’s lawyer, legal documents, and even one’s [spouse] can complicate things or cause irreparable damage. Why? Because getting divorced is a legal process that is governed by state laws and local rules. These state laws and local rules require, among other things, the submission of specific legal documents and adherence to applicable deadlines. When a [person] fails to comply, there are generally consequences that are not very desirable. (Taylor, 3 Mistakes Women Make in Divorce and How to Avoid Them)

Caving into pressure is another way in which to avoid unwanted feelings.  “There are generally two types of pressure that [people] feel in divorce. The first is an internal pressure, one that is fueled by fear, anxiety, impatience, anger or any number of other uncomfortable emotions. The second is an external pressure that is exerted by a spouse, lawyer, mediator, judge, settlement judge, mother, father, sibling, friend, child, therapist, and/or anyone else in their inner or outer circles of influence.” (Taylor H. L.)  We often refer to this second type of pressure as the “Greek Choir.”

In high-conflict cases, where family and friends ‘choose sides,’ it can keep the divorcing couple from working cooperatively….   In many cases, parents, grandparents, siblings and friends do not know how or do not feel entitled to grieve a divorce within the family. Their avoidance of their own grief and hurt can play a big role in prolonging the conflict. In order to avoid their own feelings, friends and family members may support one person’s views, even if distorted, and align themselves with that person’s position.

Although family and friends’ alignment with a divorcing person may feel supportive to that divorcing person, they may only be providing a foundation for continued conflict. Awareness that friends and family are taking sides can encourage high-conflict and only prolong grieving and hinder healing (Erlich, 2001).

Family and friends, along with other third parties such as child specialists, therapists, and lawyers can help reduce conflict when they understand that grieving is important and is in the in the best interest of the divorcing person. Divorce is not an event, but rather a legal and emotional process that a divorcing couple must go through…. (Livingston R. M., Grief and High Conflict Divorce, 2012)

Caving into such internal and/or external pressure might result in accepting a settlement offer against your better judgment.

“A variation on the flight response is the freeze response, often noted with post-traumatic stress disorder, when a person simply freezes.” (Seaward, Managing Stress: Principles and Strategies for Health and Wellbeing, 2006)  Moreover, recent psychological research has found that “people from the general population whose worst event is a life event, such as chronic illness, marital discord or unemployment, on average have more PTSD symptoms from this event than people whose worst event is traumatic, such as an accident or disaster….  This finding perhaps implies that in the very long run the impact of a life event wears out, in terms of PTSD, whereas that of a traumatic event is more persistent.” (Mol, Arntz, Metsemakers, Dinant, Vilters-Van Montfort, & and Knottnerus, 2005)

Sometimes the emotionally sensitive ruminate over what happened, being paralyzed by their fear. They are unable to think of how others feel because they are paralyzed by their own emotions. In this state, the emotionally sensitive person may be seen as selfish and self-centered. Actually they are overwhelmed with their fear and unable to think clearly.  Sometimes it’s difficult to ask for support from others. Even close friends and family may not understand the intensity of fear and how overwhelming it can be and may respond in critical ways. Or maybe asking for help creates vulnerability and adds to the fear. Unfortunately lack of support or isolation, plus avoidance, is the perfect environment for fear to grow stronger. (Hall, When Bad Things Happen to Sensitive People, 2012)

In times of extreme stress, individuals often fail to use their tried-and-true coping mechanisms.  As mentioned earlier, the stress of a divorce comes second only to the death of a spouse, which would make it a time of “extreme stress.”

Under these circumstances, can anybody reasonably believe that attorneys alone can help navigate people through “the treacherous waters of the divorce process?”  Are such clients sufficiently mentally competent to accept an attorney’s advice?  Does the fact that an attorney might explain to a client that “emotions cloud judgment and that they may well regret making an emotionally based decision” solve the problem?  If an attorney “does a good job of helping the client understand that nobody else involved in the divorce process is motivated by emotion” solve the problem?  Can clients easily “compartmentalize” the division of property and re-allocation of assets from the division of lives and families?  Without professional help from someone other than an attorney, can clients “compartmentalize their emotions and address the task before them in the divorce action?”  By “holding a client’s hand”, “offering them a tissue or their shoulder to cry on”, “offering words of comfort and encouragement”, or “serving as a sounding board” does the attorney solve the problem?  Does an attorney’s willingness to “reduce a bill to show solidarity or to provide much appreciated relief” solve the problem?  Does “treating a client to lunch and just shooting the breeze, so that the client can relax, not feel that the attorney-client relationship is rigidly restricted to talking shop, and develop trust” solve the problem?  Are “lawyers qualified to deal with the emotional impact of divorce on clients?”  Do lawyers have a license to do such counseling?  Are lawyers qualified to do such counseling?  Can lawyers alone “handle their client’s needs?”  Are “attorneys and their office staff sufficiently skilled and ‘observant’ enough to meet the needs of the average client on their own?”  Is it a “mistake to claim that in the absence of a divorce coach, a divorce will go off the rails?”  Have I said that “lawyers cannot treat divorce holistically?”  Does anyone really believe that I am claiming that “a divorce attorney is somehow duty-bound to do nothing but discuss the mechanics of the divorce process?”  Am I claiming that “logical, rational lawyers are heartless machines?”  Have I said that “lawyers are arrogant?”  Have I said that “lawyers are coldly analytical?”  Have I said that “lawyers have tunnel vision?”  Have I said that “lawyers have blind spots when it comes to the emotional toll the divorce takes on the client?”  Have I said that “lawyers are generally emotionally clumsy and insensitive?”  Have I said that lawyers lack empathy?  Have I said that lawyers are afraid of emotional issues?  Have I said that lawyers are “incapable of helping their clients see the impact of their decisions?”  Have I said that lawyers are “incapable of helping their clients to reality test?”  I think not!

Is emotional irrationality ever-present in almost every family law case?  Is it possible that emotions are getting in the way or clarity of judgment?  Do our clients’ emotions cause their navigational system to malfunction when it comes to making sound, long lasting decisions?  Could divorce coaches be “suggested and utilized as a means of helping the lawyer better prepare a client to go through the divorce process?”  Without a doubt!

Some attorneys believe that only “emotionally immature divorce clients cannot come to see their divorce for the emotionally taxing experience that it is.”  Others believe that “there are those who are broken mentally and/or emotionally by divorce.”  They even say that “most divorcing people are not crazy nor made crazy by divorce.”  “Divorce is not so adverse as to leave most people so crushed as to be unable to deal with it without a coach.”  “Everyone who encounters adversity (i.e., everyone, period) does not need a coach or a counselor or a therapist to cope or ‘save money’ in the coping.”  “To suggest that a special ‘coach’ is warranted–much less needed–to ensure a divorcing person separates emotions from the realities of the divorce process gives the average client too little credit.”  “Divorce is traumatic, sure, but not so traumatic that a skilled lawyer (who just so happens to be a decent human being) will end up botching their client’s delicate psyche without a divorce coach along for the ride.”  The above-referenced quotes were actual statements made by attorneys in a LinkedIn discussion regarding the use of divorce coaches in the divorce process.

Was any of the research I shared earlier in this article limited to “emotionally immature”, “mentally broken”, “crazy”, or people otherwise “so crushed as to be unable to deal with it without a coach?”  No!

These attorneys believe that “practicing family law earnestly, consistently, and with an eye to doing it well will make virtually any attorney an expert on human nature as it applies to divorce.”  Such attorneys are therefore “against the notion that divorce coaches are somehow a necessary element to the divorce process.”  Whether or not an attorney becomes an “expert on human nature,” how does that solve the problem?  Again, as Judge Michele Lowrance so eloquently stated, “attorneys are not trained to reduce this kind of suffering.  Divorcing people expect relief far beyond what the legal realm can provide from their attorneys….”  How does an understanding of “human nature as it applies to divorce” make up for a lack of training?  A “good family lawyer” is a matter of perspective. A “compassionate family lawyer” does not make a “good family lawyer.”  I propose that a “good family lawyer” recognizes their limitations and is not threatened by the prospect of involving someone who has an expertise that they lack to enhance the product they can deliver.  A “good family lawyer” wants to ensure that their clients’ decision-making capacities have been restored or at least improved.  In other words, a “good family lawyer” wants to ensure that their clients’ navigational system is functioning properly, so that they can successfully “navigate the treacherous waters of the divorce process” and make their own decisions.

I must give credit where credit is due.  Those same attorneys state that “if a client needs mental health therapy, then of course no divorce attorney worth their salt is going to fill that role, nor will they want to try.”   “Some divorce clients are clearly psychologically and/or emotionally devastated by divorce to the point that they may need mental health attention.”  It is comforting to know that they recognize that some of their clients may need therapy.

Unfortunately, the fact that the stress, grief and fear that people going through a divorce experience invariably causes their navigational system to malfunction does not necessarily mean that such people require therapy.   Helping people reduce their stress level and improving their coping mechanisms is not therapy.  In fact, mental health professionals involved in such work are referred to as divorce coaches because they are not providing therapy or treatment.  It is so clear that mental health professionals should be involved in most, if not all, divorce cases.  Lawyers use logic, reasoning, and their knowledge of the law to assist their clients. Why do they expect their clients to “get it”, when they are under such extreme stress, while grieving the loss of so many things incorporated into their marriage, and experiencing such fear?  It is only by restoring or at least improving the clients’ decision-making capacities to make their own decisions, that we repair the navigation system and thus solve the problem.  However, lawyers do not have the skills or training to make such repairs.

I have no doubt that most attorneys will continue to deny that the involvement of coaches in family law matters is invaluable.  Anticipating such dismissal by my colleagues brought to mind a wonderful article titled “Better listening is the key to being heard” (Tosta, 2012)

The better you listen, the more you will be heard. It’s really that simple. Being heard and listening are two sides of the same coin….

It’s almost as if making you available to connect and understand presents some sort of threat. And perhaps it does….

One of the ways that you learn to adapt to change, to develop more appropriate behaviors, is through the feedback of others. If such feedback challenges your judgments and beliefs, it can come not as a call for adaption, but as a challenge to your very existence.

So you develop a tendency to shut out or turn down information or feedback representing a narrative challenge. Needless to say, not all conversations represent such a challenge. But if enough of them do, you withdraw from listening as means of self-protection. You do that enough and listening loses its immediacy and intimacy. It becomes more of a screening behavior, intended to protect you from what may be considered threatening.

For this reason, learning to listen (or, perhaps relearning, as you listened well as a child) is not easy. But it is critical. First, to function effectively and efficiently, you must know what is going on. Listening is an exploration. It can lead to meaningful change and adaptation. It can make your life better.

Second, by not listening you are cutting yourself off from relationships that could serve you well, facilitating your growth, exposing you to new perspectives and allowing for creative problem solving.

Other than the fact that most people don’t listen very well, most people fail to understand that listening requires intent – a ready state of mind and body. Absent that state, your listening capability is diminished. Finally, there is every reason to become a great listener. You make yourself a more attractive human being.

The bottom line is that listening is risky and requires work, but it pays off….

[Y]ou need to learn how to listen without your filter or belief…. So, how can you keep your beliefs from screening your listening? Could you entertain the notion that you might be entirely wrong? Is it possible that the impression that you hold is shaping how and what this person is communicating? Could it be that if you held yourself open to discovery and withheld judgment, you might learn something new that changes your perspective?

Unfortunately, the dismissal of this “new” perspective regarding the importance of involving divorce coaches in the family law process is not limited to an inability to “listen” unfiltered by ones beliefs.

Although most lawyers are good communicators, few have had formal training in aspects of interpersonal communication skills that are so vital to the practice of law. The ability to focus, attend, and truly listen to what is being communicated, and then respond appropriately, is essential in interactions with office staff, clients, and other lawyers. These skills may be the difference between good lawyers and great lawyers….

A lawyer’s expertise is typically in communication directed from the speaker to the listener. One-directional communication is focused on the ability to articulate ideas clearly and concisely. Whether in the form of courtroom presentations or as written briefs, such communication focuses on conveying the lawyer’s ideas, with no verbal input or response from the listener. When lawyers do use input from the other side, they are likely to do so by employing their debating skills, which promote the speaker’s views and, by definition, attempt to discredit opposing views. In most settings other than mediation, the lawyer is attempting to create a watertight case that his or her viewpoint is correct. Much legal work involves communicating to rather than with others.

Lawyers are also goal oriented and problem solvers. The need to have the pieces fit together into a logical whole focuses lawyers on an outcome rather than the process of communication. But this can lead a lawyer to ‘not hear’ clients when they say things that don’t fit the lawyer’s understanding of the case. Although the lawyer may have been presented with a similar situation hundreds of times before, focusing on what is unique with this client takes time and effort to put aside preconceived ideas. Listening is inherently an interactive skill….

The lawyer also needs to be aware of the client’s emotional state. If the client is experiencing intense feelings, the ability to ‘hear’ is impaired. Anxiety, anger, and feelings of being overwhelmed can block retention of what is heard. (Howard, 2006)

“Listening is essentially a practice of awareness and attention. A frequently cited study on communication attributes only 7 percent of meaning to the words. The remaining 93 percent of what is communicated is attributed to the speech attributes (pace, tone, volume, intensity, etc.) and somatic manifestations (posture, movement, facial expressions, and the like). Most of us consciously devote our attention to the words, despite the fact that, unconsciously, we are receiving other forms of communication.” (Tosta, Better listening is the key to being heard, 2012)

It seems that we are caught in a Catch-22, or “a contradictory or self-defeating course of action.” (Farlex, Inc., 2013)  Since divorce is a legal process, it will not change until lawyers begin “hearing” their clients.  However, lawyers have never quite learned how to “listen” to others.

However, as luck would have it, some lawyers have actually learned to communicate with others and not just to them.  Those lawyers have discovered a concept known as “collaboration”, which happens to be based upon “genuine communication.”

The key to successfully co-creating is a strong focus on collaboration….  Cooperating is a much lower level activity than collaborating. Knowing the difference can make all the difference in the results you get with your business partners.   You cooperate because you have to; you collaborate because you want to.  Cooperation is based on a scarcity mindset; it’s about protecting and defending your piece of the pie. Collaboration is based on an abundance mindset, working together to create a bigger pie for all….  When you and I cooperate, we work separately and make accommodations for each other. When we collaborate, we are not simply making room for each other’s creations; we are co-creating the future together.  Collaboration is a function of genuine communication….  Communication fuels collaboration, which fuels more communication, which fuels more collaboration….  There has been a lot of cooperation between competing players in the industry, but not true collaboration. It’s still protect and defend, fiefdoms and egos, legacy thinking—all the things that keep abundance from happening. (Burrus, 2012)

In the family law arena, that collaboration is between attorneys and mental health professionals.  It is the perfect symbiotic relationship.

The divorce coaches have the skills and training needed to assist people in reducing or otherwise managing stress.  They work with people to dilute the intensity of their emotions.  They help individuals to apply their existing coping strategies to the situation at hand.  In addition, they can work with individuals in creating new ways of coping.  Mental health professionals are especially trained to assist people in separating highly volatile emotions from the ability to make sound decisions.  “When a person learns to recognize and understand what is triggering their emotions, they are in a better position to cope with their symptoms.” (Veterans Healthcare Administration, National Center for PTSD, 2011)

A “divorce coach” as defined herein is a mental health professional such as a psychologist, marriage and family therapist, or licensed clinical social worker who has special training or experience in family law related issues.  I am pointing this out because many people who refer to themselves as a “divorce coach” may not be a licensed mental health professional.  “Life coaching” is a different type of “coaching.”  As carl Michael rossi, JD, LPC says, “Life coaching is built upon the notion of taking normal to high functioning individuals and supporting them in achieving specific goals. This is not at all what we do in collaborative practice. The value that ‘coaches’ bring to the process comes BECAUSE they are Licensed Mental Health Professionals.”  The problem is that since we refer to mental health professionals used in this capacity as “divorce coaches” and non-mental health care professionals who “coach” people going through a divorce use that same term, it causes confusion in the marketplace.  In fact, that is one of the main reasons that attorneys are so reluctant to use “divorce coaches” in family law cases.  They believe that they are life coaches and not licensed mental health care professionals.  Please note that I am not minimizing the role of a “life coach”; rather, I am pointing out that it is a different type of “coaching.”   Nevertheless, someone skilled and certified in transforming a reactive Emotional Intelligence (EQ) into a mindful positive EQ, should be perfectly capable of fulfilling the role of a “divorce coach”, as I have defined it.

A skilled divorce coach helps the parties be the best they can be under the circumstances and not to allow their emotions to cloud their judgment.  In other words, when a person is under such extreme stress, grief of loss and fear, they help to restore or at least improve their cognitive understanding and reasoning capabilities.  When utilized effectively, divorce coaches help guide divorcing clients through unchartered waters.  If lawyers were capable of effectively doing this, people would not be increasingly vocal about the fact that lawyers and the legal system are not equipped to properly address the emotional issues involved in family law matters.

With such an association, the attorneys would be able to use logic, reasoning, and their knowledge of the law to assist their clients.  Moreover, with the assistance of divorce coaches, their clients would have the cognitive understanding and reasoning skills necessary to make their own decisions.  This would create a safe and comfortable environment for clients to make such important decisions, while allowing them to appropriately grieve their losses.

Let’s now address the financial aspect of such collaboration.  Unfortunately, most people, including lawyers, have not studied and do not understand economics.  As a result, they believe that involving a divorce coach will increase the total cost of the divorce.

Economies of scale occur when costs decrease as a result of great efficiency.  “Economies of scale arise due to increased specialization of labor, management, plant and equipment.” (Gregory, 2005)  When “workers do more specific tasks, they can become very proficient in those tasks”, which enables “greater efficiency.” (Pettinger)

It has already been established that unlike attorneys, divorce coaches specialize in helping people reduce their stress level and improve their coping mechanisms.  Furthermore, attorneys typically charge higher hourly rates than do divorce coaches.  In addition, as previously explained, “early intervention” tends to “reduce conflict” and “potential litigation.”

Regardless of divorce process, I have repeatedly seen clients reject perfectly reasonable or even more than reasonable settlement offers. Under such circumstances, it is most certainly emotions interfering with their judgment. How much money is spent on the attorneys for both parties when at least one of them allows their emotions get the best of them?

I have seen parents spend tens of thousands of dollars or more in custody battles, wherein they make it appear as though the other parent is such an awful parent that they should not have any visitation rights with the children; and if they do, it should be professionally monitored. However, they do not request that the other parent have no visitation or that the visitation be professionally monitored. The allegations and the requested order are inconsistent.

In fact, a colleague and I both recently declined to represent someone who was litigating the issue of child custody because she allegedly discovered porn and child porn among her husband’s items and/or on his computer.  We both declined the case for the same reasons.  First, having child porn is a crime.  Second, even if the husband had child porn, how does that make him an unfit parent?  In California, people can use illegal substances and still be fit as parents.  We felt as though the wife was attempting to connect dots that might not connect.  Even if her husband were into child pornography, that does not make him a child molester or a danger to their children.  Thus, neither of us liked her “approach” which was based on unfounded assumptions.

I recently ran up a bill in excess of $2,000.00 because my client who earns almost $150,000 a year insisted that she needed $530.00 from her husband to pay her rent. This is not even considering the fees incurred by the other party.  Might this have been more of an emotional than a legal issue?

As previously mentioned, family law is 90% emotional and 10% a combination of legal and financial aspects.  The emotional component involves “uncoupling” and the divorce itself consists of the legal and financial aspects.  Divorce coaches also assist clients in improving the way in which they communicate with each other, creating an effective parenting plan, and restructuring their family.  What makes attorneys believe that they are parenting specialists?   Parents always claim that their children mean more to them than anything else.  If this is true, guidance for improved communication patterns and effective co-parenting arrangements are the most important aspects of cases involving minor children, and arguably even adult children.

Lawyers tend to spend less time on cases when divorce coaches are involved, which by definition results in reduced legal fees.  Just as with a sailing team, the elimination of a team member does not eliminate the function itself.   Keep in mind that the divorce coach need not be present at every attorney/client meeting.  By the same token, the lawyer is not present while the client is working with the divorce coach.  It is really not a difficult concept to grasp that when only attorneys are involved in the process, clients work with the attorney on each and every aspect of the case, in total disregard of the concept of specialization and economies of scale.  Remember, a duplication of efforts by the attorney and divorce coach will not result in economies of scale.  After all, the concept involves specialization, not duplication.

How much money might a client save in legal fees by using a divorce coach? They may well save a substantial amount.  Also, when clients let their emotions get the best of them, how do they unring the bell?  They can’t.  As a result, another benefit of divorce coaches is that they may also eliminate or reduce the amount of money people would otherwise spend on therapy for themselves and/or their children in the future.

Lawyers need to recognize their limitations and begin involving professionals who can help them better assist their clients in obtaining the best possible result and at a lower overall cost.  It would be a mistake to restrict the involvement of divorce coaches to the collaborative divorce process.  All of the benefits of utilizing divorce coaches apply equally well to any and every family law case, regardless of process.  Of course, all of this is based upon the assumption that the divorce coach is an appropriate fit for the particular client and case.  The same can be said for the suitability of an attorney retained as well.

The only apparent downside to involving divorce coaches in family law matters is fear on the part of attorneys that their income would be reduced, since they would spend less time on any given case.  However, let me remind you that “collaboration is based on an abundance mindset, working together to create a bigger pie for all.”  Please don’t misunderstand.  I am not suggesting that the number of people with family law matters would somehow increase if family law attorneys and divorce coaches collaborated on family law matters.  However, a huge percentage of the population feels disenfranchised and don’t use lawyers for their family law issues.  “National data indicates that 60 to 90 percent of family law cases nationally involve at least one self-represented litigant, while 5 percent or fewer of cases in general civil dockets include a self-represented litigant.” (Hough, 2010)  This reality did not occur as a result of the great recession.  In fact, prior to the recession, I attended the Beverly Hills Bar Association’s Annual Supreme Court Luncheon honoring the Supreme Court of the State of California.  When former Chief Justice George addressed the audience, he commented that because 85 percent of family law matters are handled without attorney involvement, the State has a problem with the unintended bigamous marriages that result.  In other words, self-represented parties are unable to successfully navigate the treacherous waters of the divorce process.  While the courts may have been “making tremendous strides in responding to the new realities of family law courts,” the great recession and the resulting budgetary crisis put an end to such efforts.  For example, “over the last four years, the California courts have weathered nearly $1.2 billion in cumulative budget reductions. This has had a crippling effect on the judicial branch.” (Judicial Council of California / Administrative Office of the Courts, 2012)  However, if lawyers were able to offer their clients better results at a lower overall cost, more people would be willing or able to pay for such assistance.  Thus, lawyers more than replace their “lost income” by the mere increase in available work.  Mediators and collaborative practitioners refer to this result as a win/win.

Mark B. Baer is a Family Law Attorney, Mediator, Collaborative Law Practitioner, Author, Lecturer, and Keynote Speaker from Pasadena, California. Mr. Baer has received a great deal of media attention regarding his opinions that the family law system in the United States destroys families and his views on better and more constructive ways of handling such matters. He has been writing a column on psychology and family law for the San Gabriel Valley Psychological Association’s bimonthly newsletter since September 2008. He has also published articles on family law in a variety of well-respected publications, including Forbes. Columnists from the Pasadena Star News, the Los Angeles Times, The Wall Street Journal, and other publications use Mr. Baer as a resource for their columns. He has been interviewed on KTLA news by Manny Medrano and profiled by the Beverly Hills Bar Association in an article entitled “Family Law Par Excellence” and by the Pasadena Star News in an article entitled “Finding the Solution.” Mr. Baer was selected for inclusion in 2012 Southern California Super Lawyers, and as a Top Attorney by Pasadena Magazine in 2010 and 2011. On March 23, 2012, Mr. Baer was the Keynote Speaker at the opening night of The Divorce Expo in Detroit on the topic of Industry Trends and His Perspective on the Future of Family Law. On April 20, 2012, Mr. Baer will be a co-presenter at the 2012 California Psychological Association Convention with Linda Bortell, Psy.D. on What About Family Values? Facilitating Rational Problem-Solving In An Otherwise Destructive Divorce Process.Content goes here


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[1] “Interest based negotiation is an established technique for negotiation in which the parties meet to identify, discuss the issues at hand and attempts to arrive at a mutually acceptable solution. It is a positive effort by the parties to resolve a joint dispute in collaboration rather than competition. The main focus of such negotiation is to negotiate on common interests of the parties rather than their relative power or position. It helps to reduce the importance of how the dispute occurred. It creates options that satisfy both mutual and individual interests. Interest based negotiations are also referred to as principled or win-win negotiations or interest based bargaining. This informal process is one of the most important methods of dispute resolution.” (U.S. Legal Forms)
[2] As a result of time constraints, I resigned from the Board of Directors on January 5, 2013.

[3] “As of September 30, 2012, LinkedIn operates the world’s largest professional network on the Internet with more than 187 million members in over 200 countries and territories.” (LinkedIn Corporation, 2012)
[4] By permission.  From Merriam-Webster’s Collegiate® Dictionary, 11th Edition©2012 by Merriam-Webster, Incorporated (
[5] By permission.  From Merriam-Webster’s Collegiate® Dictionary, 11th Edition©2012 by Merriam-Webster, Incorporated (
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[9] Whitehead, B.D. (1997). The divorce culture.  New York, NY: Knopf.
[10] Kressel, K. (1980).  Patterns of coping in divorce and some implications for clinical practice.  Family Relations, 29, 234-240.
[11] Goldenberg, H., & Goldenberg, I. (2008).  Family development: Continuity and change.  In H. Goldenberg & I. Goldenberg (Eds), Family therapy: An overview, (pp. 25-52). Belmont, CA: Thomson Higher Education.
[12] Bonach, K., & Sales, E. (2002).  Forgiveness as a mediator between post divorce cognitive processes and coparenting quality.  Journal of Divorce & Remarriage, 38(1/2), 17-38.
[13] Stacer, D. L. & Steman, F. A. (2000).  Intervention for high conflict custody cases.  American Journal of Family Law, 14, 242-251.
[14] Neil F. Neimark, M.D. is a board certified family physician who also serves as an assistant clinical professor in the Department of Family Practice, University of California, Irvine.
[15] Somary, K. & Emery, R. E. (2008).  Emotional anger and grief in divorce mediation.  Conflict Resolution Quarterly, 8, 185-197.
[16] Barsky, M. (1993) When grief underlies conflict.  Mediation Quarterly, 11(1), 39-53
[17] McKay, M., Rogers, P.D., & McKay, J. (1989). When anger hurts:  Quieting the storm within.  Oakland, CA: New Harbinger.
[18] Ehrlich, J. (2001).  Losing perspective:  A danger in working with high-conflict divorces.  American Journal of Family Law, 15(4), 307-310.
[19] Sparta, S. N. (2008).  Helping families and courts in high conflict divorce cases:  Familiar practices and new ideas.  The Journal of Psychiatry & Law, 36, 5-8.
Mar18 valerie kerker I follow Mark’s posted comments daily. His article, Navigating the Emotional Waters…, is a must-read for every serious practitioner. Mark has captured in this one article the many truths, pitfalls, and potentially problematic aspects of collaborative practice. This article systematically sets forth the both the methodology of collaborative process as well as the depth of the wholehearted commitment that practitioners need to embrace. Now I have an article that I can share which explains why I do the collaborative work I do.
   Mar19 Mark B. Baer Thank you so much, Valerie. I cannot even begin to tell you how thrilled I am that you found such value in this article, as well as my postings and comments on LinkedIn. It is so flattering that you plan on sharing this article with others to explain why you are a collaborative law practitioner.
Mar16 Debra Crawford Annis Thank you Mark. I was trying to explain this to a Judge the other day! I’m going to link to this!
     Mar17 Mark B. Baer Debra, I am so glad that I could help. Link away!!!
Mar14 Wendy MacKay “Excellent article! I have followed Mark Baer for quite some time and admire his professionalism with compassion for his clients. He has his clients’ best interests at heart. As a life coach supporting single parents and children after divorce I encourage collaboration to allow all parties involved in the process to move forward and live fully. When divorce is imminent there is so much emotional overwhelm as a result. Having a professional who listens and provides positive solutions is essential to the healing process. Unfortunately this often is not dealt with. It’s professionals like Mark who are bringing awareness to their clients that is needed, pass this article forward.”
    Mar17 Mark B. Baer Wendy, thank you so much for your very lovely comment. It is so good to hear that you have found such value from so many of my articles.
Mar13 Christopher Swan I have just read your article and am of the belief in encapsulates the true spirit of Collaborative practice. I will put a link to it on my Adelaide Collaborative Practice Blog. Well done
    Mar17 Mark B. Baer Christopher, I am so pleased with your response to my article. Thank you so much for posting a link to the article on your Blog. I hope that your readers find the information valuable.