John Mulhall is a divorce attorney with over 25 years of experience. His office is located in Boca Raton, FL. Mulhall Family Matters are Florida family law professionals who are committed to leaving our clients and their families in a better place than where we find them. We believe that Florida’s families deserve to be assisted by professionals who are dedicated to working cooperatively and using dispute resolution processes that dignify, rather than destroy, families. At Mulhall Family Matters, we know that divorce and other family conflict can be difficult, and we are committed to assisting our clients and their families in resolving their disputes with as little pain as possible.
Have you seen “Troy,” the movie starring Brad Pitt and Orlando Bloom? In my opinion, it’s not a terribly good film, but it had a surprisingly powerful impact on me, and it was a driving force behind the creation of the Peaceful Divorce Model.
You probably know the story of the Trojan War: an epic struggle between the armies of ancient Greece and Troy over the fate of the fair Helen, the wife of Greek King Menelaus of Mycenae, who falls hopelessly in love with a prince of Troy. When Helen is swept away by Paris to the walled Trojan capital, the offense triggers the launching of a thousand ships and 10 year-long siege of Troy. Because Troy proved to be impenetrable by the revenge-filled Greeks, much of the epic tale is dedicated to the run up to the penultimate confrontation on the plains before the walled city.
In a darkened theater, I watched the preparations for battle unfold on the screen. There are men spending sleepless nights contemplating their mortality and legacies. There is the sharpening of spears and the testing of bows. We see the agony of a father as he watches his warrior sons prepare to meet their fates. Warriors bid farewell to their womenfolk and progeny.
And then the day of reckoning arrives. As the camera pans the field of battle occupied by armies of thousands strong, two chariots (one from each side) ride out from the lines and meet in the center of the wide-open plain. There, a rather ridiculous conversation ensues, somewhat reminiscent of that Grey Poupon commercial: “Is there anything that can be done now to stop us from annihilating each other?” I wanted to jump out of my seat and shout, “Excuse me, but why didn’t this conversation take place back before this whole odyssey began so that we could all be spared this dreadful movie?”
I realized at that moment that this scene alone was worth the price of my admission. For there, on the screen, was the artistic embodiment of “alternative” dispute resolution. The director clearly knew that, since the dawn of human history, efforts at conciliation usually occur only after the combatants have sufficiently bloodied each other and mutually-assured destruction appears to be the only alternative.
Later, I thought to myself: what if my clients were encouraged to explore the possibility of achieving less-adversarial, less-stressful, and less-expensive resolutions of their disputes early on in their cases, before bludgeoning each other and sacrificing their children, dignity, savings and sanity at the altar of “winning at all costs?” What if, from the outset of any family matter, divorce professionals worked together, cooperatively, and their collective energies were directed to achieving peaceful resolutions? Although my preference had always been to settle cases, I realized that I was still working too hard in the adversarial process and waiting too long to initiate and pursue settlement options, and so were my colleagues. Surely, there had to be a better way.
Be prepared. Know the facts. Know the law. Know where your client wants to go, and contemplate possible routes to get him or her there. Don’t just show up: show up READY, and make sure the other side does to. Nothing hinders negotiation and resolution more effectively than not having “enough information.” Prepare a pro forma settlement agreement before you arrive so that you can get the deal on paper right then and there if the parties reach an agreement.
Set aside enough time to achieve the desired result. Mediation takes time. Sometimes, real progress isn’t made until several hours have passed. Don’t schedule other appointments during the day that you’re attending mediation. Your client deserves your focus and commitment to the process.
Schedule multiple mediation sessions if necessary. Mediation is a process, not an event. Have a second session scheduled for a week or two after the first session just in case you don’t wrap it all up the first time. That way, everyone recognizes the possibility that it can’t all get done in a day and insures against delay in getting back together. If you don’t need the follow up, then you can always cancel it.
Educate the mediator in advance. Counsel should provide the mediator with a summary of the issues involved, salient facts and parties’ positions. This will save time (and expense) at the mediation session itself. Consider having the mediator meet or speak with the parties in advance as well. An “ice breaker” can help ease the clients’ anxieties about the process. Make sure everyone agrees on what will be done in advance, and stipulate to having it all considered part of the confidential mediation process.
Mentally prepare your client for resolution. Sometimes, the parties are not emotionally or psychologically prepared for the prospect of resolving their case. They freeze just as they are about to “seal the deal.” Make sure that your client understands that mediation is a highly effective means of resolving disputes and that a final resolution of the case could be at hand. Are both parties ready for their disputes to come to an end? Are they ready to compromise and achieve a resolution that may not include everything on their “wish lists”?
Mentally prepare yourself for resolution. You can’t be effective for your client if you’re not mentally ready for settlement either. Understand your role in the process. Remember that your client and his or her spouse made decisions for themselves and their family long before they came your way. They may be in foreign territory as far as divorce litigation and mediation goes, so your job is to help your client navigate the process by serving as counselor and advocate, not by making the decisions for them. Be prepared to watch your client settle for less than what you believe he or she deserves. So long as you’ve done your job, don’t be regretful of seeing the parties put their disputes behind them even when you don’t like the deal.
Manage expectations. Don’t just develop your client’s ‘Wish List’: determine what he or she would be happy with and what he or she could live with. That gives you and your client greater flexibility in making and considering settlement proposals.
Select the right mediator. The mediator should be a good fit for the parties and professionals involved. If you’re dealing with sophisticated financial issues, hire a mediator who is strong on finances. If settlement efforts have been thwarted by the parties’ emotions, a mediator with more of a therapeutic approach may be more effective. I find that retired senior judges can be very effective in mediations with older couples, who tend to appreciate having someone they perceive as a peer working with them.
Read and learn about the art of negotiation. You negotiate all day long, yet how effective are you as a negotiator? Are you maximizing your clients’ ability to achieve a negotiated settlement? Or are you insuring that everything will be left up to a judge? There is a whole field of study on effective negotiation. Read William Ury’s Getting Past No and Getting to Yes and view negotiation in a whole new light.
Become a Peaceful Warrior. Ten years ago, I realized that I enjoyed mediating cases better than trying them. I knew how to try a case, and enjoyed the intellectual challenge of courtroom advocacy, but I recognized that the real talent in family law is in creating solutions outside the courtroom. That’s what families deserve, and it also improves the quality of life of the professionals who serve them. If you are a fan of mediation, there is no doubt that you will be more effective in mediating cases. If you’re not, it will show. And remember, just because your peaceful doesn’t mean you’re weak.
Stop calling him “opposing counsel.” Use of that term kind of sets the wrong tone. He has a name – use it, even when referring to him with your staff. Humanize him, and then you’ll probably have an easier time dealing with him when he turns out not to be perfect.
Establish a rapport with him. Get to know the lawyer personally. I like to meet for coffee at the start of an engagement, even with a colleague I already know pretty well. Taking the time to make a personal connection can do you and your client a world of good. You probably have more in common with the other lawyer than you do with your own client.
Feel her pain. But for the grace of God, you could be representing her client. Family clients are challenging. If the other attorney has her hands full, she’ll appreciate your empathy. And by knowing what difficulties she may face, you can better counsel and direct your client.
Let her feel your pain. Of course, you could have a tough situation on your hands as well. If your client is fragile or in denial, letting the other attorney know could help you to create an environment where your client will feel more comfortable and less pressured, and hopefully work more effectively to deal with his or her issues.
Work cooperatively rather than antagonistically. Productivity, effectiveness and satisfaction increase sharply when humans cooperate with each other. Which do you prefer: cases where you get along with the other attorney or cases where every professional interaction is a hassle? Commit to cooperation, even if the other party makes it difficult to do so. This probably won’t be the last time you cross this attorney’s path and he’ll appreciate the fact that you’re not one of those attorneys who busts his hump, even if he occasionally busts yours.
When asking for a favor, say “please.” Remember, the definition of a favor is doing something for someone that you’re not legally or morally required to do. Rescheduling a deposition to accommodate someone’s vacation is a favor. Splitting the cost of a court reporter is a favor. Arranging for a client’s boss to appear without the need for a subpoena is a favor. When asking for such things, follow your mom’s advice: remember to say “please.” And when someone does a favor for you, remember to be appreciative, perhaps overly so. People like to do favors for people who are appreciative.
You don’t have to “like” the other attorney. I never understand how attorneys develop strong emotional responses to dealing with other attorneys. “I hate that lawyer” should not come out of your mouth. Then, it’s all about how you “feel.” And your client will suffer as a result. Professionals need to be above that. We deal with difficult people every day in other facets of our lives, and we don’t let it rock our world.
Refrain from being unduly critical of another attorney in front of your client. Sometimes, this is tough advice to follow, but demonizing the other attorney achieves nothing other than exposing your frustration over your inability to deal effectively with him or her. I can say “he missed the deadline” or “she backed out of our agreement to a mutual exchange of bank statements” without editorializing that “man, what a liar that lawyer is.”
Act with integrity. Acting with integrity means doing what you say you’re going to do when you say you’re going to do it. And if you didn’t deliver on a promise, you need to let everyone know that you’re sorry for that and make amends. Be a person of your word. You can’t be surprised when others fail to act with integrity when you don’t.
Don’t expect a big hug for your troubles. Your efforts in being a Peaceful Warrior may not always be met with a warm response. Be satisfied that you’re doing the right thing. I’ve been practicing law for over a quarter century, and I know that I enjoy much better relationships with other family law professionals in my area by building bridges than I would have if I had adopted some other approach. And I love practicing family law. Can you say the same?
Recently, my brother reminded me that when we were kids, whenever our mother caught us fighting, she would march us into the kitchen, take two chairs and seat us so that we were facing each other with our knees practically touching, and there we would be made to sit, under her watchful eyes, until we made up.
At first, we would sit with arms crossed, barely breathing, looking everywhere but straight ahead. We would stealthily kick each other in the shins, or stick out our tongues and make faces at each other. Sometimes, we’d close our eyes just so we wouldn’t have to look at the other’s “ugly mug.”
“Well?” our policing mother would ask. “I’m not apologizing because he pushed me first,” my brother would say. “Liar!” I’d shout. “It doesn’t matter to me,” our mother would say, “because you can’t leave until you work it out.” Invariably, after a while, we’d each crack a smile, laugh and assure Mom that things were good again.
Some may agree with my mother that her kitchen diplomacy was an effective technique to resolving conflicts between her children. Others may say that it wasn’t conflict resolution at all; that my mom wasn’t actually assisting us in resolving our “issues.” We simply grew weary of arguing about them.
The lesson I came away with is this: At some point, the fighting needs to stop, and the best way to do that is to put the antagonists on a level playing field, governed by the same rules, with a neutral third party making sure that that rules are adhered to, all with one clearly defined objective: to secure a peaceful outcome.
Now, had my mother decided to be an enforcer and impose her will on us by punishing our fighting or, God forbid, try to decide which son was more culpable than the other, the hostility would not only have continued, it would have increased. Plotting, posturing and “getting to Mom first” (sort of like “filing first” or “knowing the judge”) would have been new tactics designed to gain advantages in our sibling wars, with dubious chances of success (I don’t think you need to have met our mother to know what I mean by that). Instead, we knew that before we could get on with our lives, our mother would make sure we had resolved our conflict right then and there.
It seems to me that the same lesson can be applied to any high conflict situation, whether it incurs at home, at work, in our communities, or even on a national or international stage. You can’t have peace when someone is kicking you in the shins or making faces or sweeping the bank accounts or gobbling up your allies’ territory. Only by working in an environment where “tactics” won’t do anyone any good can you hope to explore and find a lasting peace.