State of our Collaborative Union: June 2012

John and Mary have been married for 11 years. They have three young children. They have been struggling through a stormy in- house separation for the 8 months following John’s discovery that his wife was having an online affair. Mary, who was unhappy in the marriage for years and raised the specter of divorce many times, nevertheless now feels blindsided and bereft. John, who historically fought to save the marriage, describes a history of emotional abuse and withholding of intimacy on the part of his wife. He says he feels dismayed by her apparent devastation at his decision to end the marriage, and portrays himself as a victim and his wife as volatile, unstable, and unfit to parent in any sustained way. Mary maintains that John is the emotionally abusive partner. John, who financially supported his wife through medical school, now wants primary custody of the children and significant support. Mary wants equal times sharing and flexibility around her demanding and changing work schedule.

Several weeks ago, following a particularly nasty argument in which the police were called, Mary and John hired attorneys. Immediately, the toxic marital dynamic that had been heating to critical temperatures in the pressure cooker of an intolerable nesting arrangement, began to boil over onto an into the professional relationships. Both clients clogged their attorney’s inboxes with lengthy, emotionally fraught emails recording, in painful detail the shortcomings and bad behavior of their spouse. Histories were chronicled, events painstakingly recorded. Mutual skepticism and mistrust was carefully rationalized. Each party meticulously articulated the historical precedents for their current positions, and demanded repeated reassurances that this process would provide them with their specific desired outcomes. Increasingly beleaguered, the attorneys began to exchange emails outlining their own clients’ positions and requesting reassurances of good faith behavior on the part of each others’ clients. The attorneys, each defensive of their own clients integrity and in response to their own clients’ growing indignant urgency, sent increasingly defensive and accusatory emails, which now included substantive requests for specific actions (such as transfer of funds from one to the other, scheduling changes and the like).
As these clients settle into your mind. Let’s press pause for a second. And think about the landscape in which we work.
Now let’s imagine that their attorneys were operating in a traditional settlement negotiation paradigm. Let’s imagine that the accusatory tone of their discourse continued as they moved further into their positions. The parties and their attorneys would become increasingly and mutually mistrustful. The conversations would no longer be between two grieving lovers and concerned parents, but between their legal avatars, who would absorb their clients fears and anxieties, translate them into anger and aggression, and serve them up as accusations and demands. Parental vulnerabilities would be identified and exploited, with the result that the children’s needs, rather than being attended to, would become weapons in a custody dispute—either a skirmish or an all out war. The children themselves would be caught in the crossfire. By the time the final shot had been fired, someone would wave a white flag on the courthouse steps—making final concessions out of a fear of a worse outcome. But no one would have won. Emotionally and financially devastated and robbed of any good will between them, the divided couple would limp to their separate corners to lick their wounds. We’ve all seen it. This isn’t hyperbole.
But now let’s imagine that John and Mary had the good fortune, as in fact they did—last month—to land in the offices of two of DCACP’s finest Collaborative attorneys. A team was formed in which I was one of the mental health professionals. In a preparatory team call before our first team meeting we discussed the ways in which the power of the clients’ anxieties had already worked their way into the team causing us to act out in violation of our own protocols and Collaborative spirits. We discussed the ways in which, for example, the attorneys’ demands from each other for assurances that their clients would “do” Collaborative in good faith represented an identification with their own clients’ mutual mistrust. As we discussed the power of the marital dynamic and the forces that it exerted on us, we were able to re-stabilize as a team, re-establish a safe container, and move forward.
And the conversation continued. In an early 4-way with their coaches, the clients cycled through moments of relative calm (in which they could, for example, acknowledge the importance each other in the lives of their children) and moments of rage (in which they could barely acknowledge each other’s humanity). Mary and John argued over the predictable—he wanted access that reflected the status quo, she worried about being marginalized, she accused him of having affairs with neighborhood women, he denied the affairs and accused her of being the bad actor. But what was of particular interest to the coaches was the fact that even as denied extra marital interests and accused his wife of being paranoid, John was notably flirtatious with his coach— touching her arm, catching her eye, making provocative “bad boy” comments. His way of connecting to her was unusually, and notably, sexualized. Here was the couples’ lock and key—or one aspect of it—he behaved in passive aggressively provocative ways (perhaps he hadn’t had an affair, but if he could behave like this under the watchful eyes of his coaches, what type of emotional needling might he be capable of elsewhere?). She, emotionally brittle as she was, reacted dramatically and (when he innocently shrugged his shoulders and accused her of paranoia), was often moved to violent outbursts (sometimes against the children) which only served to give him solid evidence of her emotional instability. The crazier she got, the quieter he got. And, like the younger brother who quietly pokes his older sister until she hauls off and socks him resulting in her being dragged off to her bedroom—railing the whole way against the unjustness of the universe--- John was a genius at erasing his own emotional fingerprints so that Mary looked to all the world like the abusive and out-of-control parent that he claimed she was.
In the next team call the coaches presented their emerging understanding of the clients’ lock and key. Mary’s attorney owned that he had been struggling with feeling defensive of his client. The team’s appreciation of how Mary’s “out of control” behavior was simply a step in a mutual dance was particularly helpful to him in understanding what, of course, would be an ongoing vulnerability for which he would need the team’s ongoing support. John’s attorney asked Mary’s attorney how his client saw her—an important question which paved the way for a conversation about how we could all best anticipate the client’s likely emotional expectations and potential triggers and how we could best strategize in an attempt to be helpful to the couple—John, for example, would need an explanation that his team’s efforts to emotionally reach out to Mary did not represent an abandonment of him. Mary would need ongoing support in not rising to the bait when provoked by her John.
It was a complex, nuanced discussion. But what was most important about it, it’s magic, and what, for me, defined it as an emblematic Collaborative conversation, is that it did not focus on content, but on rather on process. We had a macro level goal, sure, we always do—to help our clients to reach a mutually agreeable resolution. But our conversation was not linear, it was a dynamic. We moved fluidly between a discussion of our clients and a discussion of our own emotional experiences of them. We explored the ways in which our own reactions could help us to better understand the couple, how their specific, quirky, mode of relating would play out in this process and how we, as a team, could use our understanding to help them to achieve their goals.
The vignette I’ve described is just a snapshot—the broad strokes of a brief moment in a Collaborative case. But I ask you to reflect on its implications in our lives, our work, our community.
To say that Collaborative Practice has offered us divorce professionals a new lease on life is no longer a revelation. We talk about it all the time—we know the model works, and we know why. But I’ve had the opportunity, with many of my DCACP colleagues, to visit many Collaborative communities not only in the greater DC area but around the country, and I can tell you this….
At DCACP we are engaged in discourse on a very high level. Think, for a moment, about the all the tensions that were being negotiated in those early sessions and conversation with and about Mary and John. Here are just a few…
  • The tension between our own personal biases and our need for professional neutrality
  • The tension between our personal relationships and our professional relationships
  • The tension between advocacy and respect for client’s self determination
  • The tension between making space for emotional content and the need to move the legal process forward
As there are tensions at our collaborative tables, there are tensions, in our professional communities. How do we balance the need to bring along new practitioners with the reality that familiar teams tend to stay together? How do we manage differences of opinion about best practice, within and between practice groups? How do we work with difficult colleagues? How do we promote our work in the current economic climate?
I grew up, am growing up, as a collaborative professional in and with DCACP. I was, you might say, in the first freshman class. And here’s what I love about my school:
We live in the shades of gray. We never shy away from a tough conversation, and we have developed a common language in which to have it. Ours is a culture in which we don’t seek to reduce the complex to an artificial simplicity. Brainstorming isn’t an abstract concept here: I have seen the way this group functions--- not out of the assumption that the best way to solve a problem is through the kind of relentless focus on detail that clenches the mind and inhibits thinking, but through an openness of mind that promotes creativity and leads to breakthroughs. What’s precious to me about DCACP is that we have constructed a safe psychological space in which to do what is often often scary and difficult work. DCACP is a feeling of home.
In preparation for this talk I dusted off the old DCACP Mission Statement to see how we were doing. It’s pretty good, actually. I won’t recite it here—but go to our website and check it out.
So, how are we doing?
  • In our 6th year we are 60 members strong (and discussing questions of expansion—do we want to? If we do—where the hell will we have our meetings?)
  • We are fiscally sound
  • We are seriously and solidly committed to the promotion of best practice within our practice group and our larger community, and we put our money where our mouth is:
  • I’ve been around I feel completely comfortable to go out on a limb and say we offer the best continuing education of any practice group in the country. We attend to the basics and to advanced topics. We are constantly developing both new ideas and new ways of looking at old ideas. The programs that we offer consistently show up as presentations at the IACP forum, as workshops and (as in last year and again this upcoming year) as pre-forum workshops. This means that we have established ourselves as leaders in the Collaborative movement.
  • Members of DCACP have been involved in the herculean multi-year task of compiling the DC Area Protocols, the most thoughtful and through document of its kind in existence. It has garnered attention on an international level. It is currently being updated, as members of the committee grapple with the complexities of advanced ethical issues.
  • DCACP has been involved in a huge tri-state marketing effort that, among other things, has resulted in the development of the Collaborative Roadshow—a modular curriculum and set of teaching materials that makes it easy for collaborative professionals to spread the word in their communities (and offers quality control—which we do and should care about).
  • And a word on our perspective—we are unique in two important ways. We are truly, and non-hierarchically multi-disciplinary. Financial, attorneys, and mental health professionals are equals at our table. And we are unapologetic in our commitment to the full team model. This doesn’t mean we are Pollyanna or doctrinaire. It just means that we work backwards from what we know works best, rather than trying to sell ourselves to our clients a la carte.
  • And to that point: We know we’re expensive, and we know our local clientele is uncharacteristically wealthy. We know we have to do better. So while we wrestle with how to streamline our process while staying true to our principles, members of our group have already established a pro bono collaborative project in Montgomery County that is a pilot for the state and are well on the way to doing the same in DC. And they are doing so with the full involvement and blessing of the Domestic Violence community. It’s really happening, folks. It’s a big deal. The committee had to go as far as Israel to find folks to consult with who had made such a project as go. Here, we are going to be the first. Its cutting edge stuff.
  • Members of our community are now faculty in a course on Collaborative Law at the University of Maryland school of Law
  • Several members of our community are interested in civil applications of collaborative. In November the DC area will host a three -day training focusing on civil matters. I think we can look forward to some very exciting developments in this area in the coming year.
  • Here’s another big deal: some incredibly dedicated members of our group were responsible for the passage of the Uniform Collaborative Act. For those who might not know, the UCLA creates uniform standards across state lines and supports important facets of the practice. Only three other states have passed the UCLA Really. And if one of our members has her way, DC will be the first area of the country whose legislature requires attorneys to have completed specific training in collaborative law-- including screening for coercive control and violence.
So, how are we doing? Pretty damn well.
Divorce is now statistically normal. It has moved from being a catastrophic event that affects some unfortunate souls to a life passage that touches all families in some way. Even though you no longer have to convince a judge of abuse or adultery in order to get a divorce, our court system is still based on an opposition and conflict model in which the fundamental tenets are “never ask a question to which you don’t already know the answer, and “root out your opponent’s vulnerabilities and exploit them,” and in which the idea of a third, un-predetermined position in which the needs of both parties can be met is unimaginable. As the paradigm-shifter Buckminster Fuller put it: “You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.” We should be proud, very proud, of how we at DCACP are on the leading edge of creating a new, better model with the power to positively affect the lives of virtually everyone we know.
As an agnostic I’m not sure who to thank for the way in which the universal tumblers fell into place and landed me in a Collaborative training in 2006 with a bunch of strangers many of whom I am now honored to call my closest friends and colleagues. But I can sure thank them, and you, new friends and colleagues, for the pleasure knowing, working, playing, and growing with you everyday.
Viva la Revolucion!
Kate Scharff, President DCACP
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