Preparing to Mediate vs Preparing to Litigate- How Family Lawyers Can Use Client-Centered Strategies to Provide the Best Legal Representation

The cases are stereotyical: a successful middle aged man decides to divorce his wife of 20 plus years after a long period of acrimony and mutual animosity. Both spouses hire very competent lawyers and while the temporary support and financial issues are settled quickly, visitation for the children cannot be resolved, leading to temporary hearing. Following the hearing, discovery begins in earnest, and because of the custody/visitation issues and an exchange of inflammatory allegations, the parties' depositions are scheduled. Attorneys for both sides are surprised by what they find out during THEIR OWN client's depositions, and scramble to adjust to the "new facts" and prepare for mediation. The first mediation fails, as each side clings to unrealistic expectations and anger-driven rigidity and retaliation. In their candid and off the record discussions, attorneys for both parties agree that the case "needs to settle" but neither one can get the clients to do the right thing. Sound familiar?

The trend in family law litigation continues to move in the direction of fewer trials and more alternative dispute resolution, like mediation and, to some extent, collaborative divorce. This change away from litigation and trial preparation to mediation places family law attorneys under a new set of pressures early in the life of case: to discover both the strength and weaknesses of the client's case, to get the client to perform well in temporary hearings and depositions, and to uncover leverage points in the opposing party's positions prior to mediation in order to be in the strongest possible position at mediation. In other words, mandatory mediation policies have effectively "front-loaded" the case preparation tasks for family law attorneys, and created a greater sense of urgency for getting the "complete picture" sooner rather than later.

There are client-centered strategies available to manage these difficult and challenging cases. Here are a few of the strategies that have worked for my clients and their lawyers:

1. Take the time early in the case to get a complete history of the client, the client's spouse, the marriage, and each of the children. This interview should last 2-3 hours, and the goal is to get the client comfortable and talking, and let them "tell their story". Most clients expect that they will get a chance to "tell their side" in court (they won't, we all know) so this will be their one and only opportunity. Clients don't know what is legally relevant, but they will tell you all kinds of relevant facts, if given the chance. Most importantly, they will reveal the challenges and weaknesses in their own cases and minimize the surprises that can really hurt their cases later.

2. Emotional divorce and legal divorce proceed on entirely different timelines. When their is a conflict between the emotional divorce and the legal divorce--the emotional divorce ALWAYS trumps the legal divorce, and can stop the legal process in its tracks. When clients exhibit any of these characteristics, some kind of professional help is needed for the client ASAP: a hurt and angry wife still stunned by allegations of infidelity, a husband who describes his wife as an addict (food, drugs, shopping, alcohol), a wife who describes her husband as "abusive" and has been physically assaulted or emotionally beaten down, when either spouse is either a borderline personality disorder or narcissistic. Get professional consultation from a consulting expert about how to best support your client. Failure to address the emotional divorce factors is the greatest cause of mediation failures in my experience.

3. Take the time early in the case to explain in detail the litigation process, terms of art (motion, hearing, pleading, mediation, discovery etc.), and the sequence of events and a timeline. A typical divorce in North Texas takes 12-15 months, but most clients think tell me they think it will take about "6 months". This is just the first of the unrealistic expectations that clients have stuck in their heads, and managing and correcting these expectations is critical to maintaining the relationship with the client, and in making the process less stressful for client and attorney.

4. Before any hearing or deposition, take the time to teach your client how to be an effective witness, and the rehearse their testimony and cross examination with them. I have NEVER had a client tell me that rehearsing for their testimony in a temporary hearing or deposition was a waste of time--not one, not ever. Attorneys live in courtrooms and are comfortable there; clients are uniformly terrified, and consequently, without training and practice, are uniformly terrible witnesses. Clients not only willingly pay for time to prepare, they genuinely appreciate learning the rules and developing confidence to perform well.

5. Before mediation, explain the process to the client. Talk about the usual barriers to reaching an agreement, and have the client consider BEFOREHAND, and tell you in explicit detail, their bottom line position on all the custody and property issues. This will create an opportunity to manage the client's expectations, and prevent misunderstandings between attorney and client that can undermine successful mediation.

In summary, family law attorneys can provide the highest quality representation to their clients by recognizing that early, thorough, and considerate consultation which meets the CLIENT'S needs early in the divorce litigation process can make the entire experience less stressful for both attorney and client.

For more information or to arrange a consultation, call Dr. Karlson at 972.839.2394 or send email to karlson.kevin@gmail.com.

Managing the Needy Client--Tips for Lawyers

In an earlier post, I outlined the pattern of the needy woman-disengaged man divorce. What follows are strategies for managing these clients to minimize the stress that most professionals experience.

For the needy (usually woman) client:

What they communicate:
Helplessness
Hopelessness
Catastrophic expectations
Black and white thinking
Need for constant contact and reassurance
Impulsive decisions and poor judgment

What to do:
Call mental health professional
Think gray
Build trust, be consistent
Take threats seriously
Provide predictable, limited access to you or your assistant
Be calm,
Avoid surprises

Let me explain a bit about each of these "to dos". Since most of these women either already have therapists or need to be in therapy, the first call you should make is to the woman's therapist. You want to know what the presenting complaint was, how long therapy has been going on, how often the patient has talked about or attempted suicide, whether she is on anti-anxiety and/or anti-depressant medication and how much, how often she is seeing the good doctor, and how therapy is going.

"Think gray" means intentionally look for the exaggerations and distortions in the story your client is telling, and ask about the "other side" of the story. Few men are as monstrous as these women describe them (though some are cruel and abusive), and few mothers are as virtuous as these moms describe themselves. Ask these women to describe the "good dad" or "good husband" characteristics of their spouses, and they frequenty can find nothing good to say--this is a confirmation of the black and white cognitive style that traps these women in a world that is either "all good" or "all bad". Help the client to practice thinking both good and bad at the same time.

Because these women are so emotionally vulnerable, they personalize everything that happens, and much like young children, believe that they are the cause. Forgetting to return a phone call, being late for a meeting, or not taking their (20 times per day) phone calls will be interpreted by the client as "I am a bad person" and can easily turn into "I have a bad lawyer who doesn't care about me". For these women, regular, scheduled and frequent but short meetings (like every week but no more than two weeks) is important to build trust and get the client to confide in you. Otherwise, you will certainly be unpleasantly surprised by what you learn from opposing counsel. If you don't have time to do this yourself, delegate the task to your legal assistant and step in when the legal process demands it, but someone needs to maintain regular but limited contact with these clients. Don't promise what you can't deliver, and when you promise, do what you say you will do.

True borderline personality disorders make suicide attempts much more frequently than any other diagnostic group, and because their mood swings can be so severe, they can go from OK to suicidal in a flash. Consequently, take ANY discussion of suicide seriously, and make sure the therapist is on top of the situation. These women also make a number of suicidal gestures too, but a miscalculated gesture, designed to get attention and communicate helplessness can get out of hand and turn into a tragic and fatal event.

The best way to keep these women on an even keel is to be calm yourself. They are extremely sensitive to the moods of others and will react to them without awareness or self control. The more calm you are, the more calm the client will be.

Because of their limited ability to cope, surprises are NOT a good thing. Keep the client informed, in person when possible, and by phone if necessary, and then follow up with CYA letters. Bad news about the case will often NOT be heard and retained the first time, so be sure to confirm that your client heard you correctly by having her summarize it back to you. You will be astonished at the differences between what you said and what she heard, so be prepared to repeat and clarify her distortions and misunderstandings.

These strategies will help your client to cope and will make your job of representing her much easier. These clients require a greater time investment in order to provide adequate representation, so plan for more time and YOU be in charge of your time. Your client will thank you for it after the case is over.

Needy Woman--Disengaged Man Pattern

The needy woman-disengaged man is probably the most volatile and contentious pattern that I have seen in more than 30 years of dealing with divorcing couples. These couples are far more likely to litigate, and although they all eventually get divorced, the legal divorce is seldom the end of the conflict. What follows is a brief description of the individuals, followed by a summary of how the divorce process unfolds for these unfortunate people and their children. It is important to remember that "it takes two to tango" and to a large extent, these patterns require both spouses in order to play out the drama. The more that each partner fits the individual patterns described below, the greater the chaos, and the more closely the divorce will follow the "worst case" scenario.

The most visible partner in this scenario and the likely "identified patient" is the woman. She is likely to be attractive, bright, sociable, well-dressed, articulate, and frequently insightful about her husband and his motivations but blind to her own. These women usually make a good first impression, unless they are having one of their frequent "melt downs"--then they will be anxious, depressed (even suicidal), irrational, and even paranoid. Logical thinking will be a challenge, and it will be hard for them to learn about the slow and confusing legal process, so they will be a difficult client to manage.

Emotionally, divorce represents the realization of the greatest fear of these women-being abandoned. These women will develop rapid and intense attachments to lawyers and mental health professionals, and will barrage them with phone calls and emails with little recognition of the impact of their behavior on others (just like in the rest of their lives). They will appear to be remarkably helpless and unable to follow through with tasks related to their lives or their divorces, despite the outward appearance of competence and success that may well be apparent in their social or professional lives. These women are frequently misusing either drugs or alcohol or both, and are highly addiction prone (it could be food, sex, caffeine, xanax, or wine). They have a very "black and white" view of the world, and readily split people and events into either "all good" or "all bad" categories, and are rarely able to be balanced and objective.

As mothers, these women tend to be overly involved ("enmeshed") with their children or inappropriately disengaged. When there is more than one child, both patterns could be evident, with a "good" child and "bad" child ("just like his/her father"). Moms frequently have real difficulties being separated from their children, making visitation very challenging, and with mom distorting or exaggerating the bad experiences of their children when visiting dad. This separation anxiety is frequently evident to the children, who often express the need to "take care of" mom or just act out and complain about dad to a degree that is not supported by the facts as a way to be loyal to mom.

Many, though not all, of these women meet most or all of the diagnostic criteria for the DSM-IV personality disorder "Borderline Personality"(BPD). Many mental health professionals, knowing that they are likely to be deposed or called to testify in a divorce, will avoid diagnosing BPD because of the stigma attached to this diagnosis. BPD is difficult to treat, takes 2-5 years of twice per week psychotherapy, and has a poor prognosis without treatment (chronic "stable instability" with vulnerability to recurrent depression and anxiety and heightened suicide risk). Many less well-trained mental health professionals won't recognize the pattern at all, and will naively support the exaggerated and distorted claims of mistreatment made by many of these women.

The men in this drama may be disengaged for a number of reasons, but they will almost always appear to be quite distant and emotionally uninvolved by the time of the divorce. Many times the men have filed for divorce, although a substantial number will be the respondent after the wife discovers some infidelity. These two sub-groups of men are quite different in their outward appearance and emotional makeup. First, the ego-driven husbands.

These men are smart, successful, extremely self-confident, and almost clinical in their approach to divorce. Many are executives and medical professionals and high profile community figures. They can be both calculating and cruel in their treatment of their spouse and children, and frequently quickly replace the wife with a "newer model". Their capacity for empathy is limited or absent, and they will treat everyone they deal with a replaceable commodity. Many of them have had one or more affairs with secretaries or assistants, or like Governor Spitzer, used high price escorts.

Ironically, these men share the same black and white thinking style as their spouse, and will find it hard to be objective about their now "worthless *****" of a wife. While their thinking is less impaired than that of their wife, their judgment is usually equally poor, and they can act in remarkably thoughtless and self-defeating ways because they believe that "the rules don't apply" to them, and that they won't get caught or punished.

These men probably meet some or all of the criteria to be called "narcissistic personality disorders (NPD)" in DSM-IV terms, but they will NOT be in treatment nor interested in it. Because they sincerely believe in their own superior intelligence and perfection, therapy is a joke to them.

The other group of disengaged men is more healthy than the ego-driven group, but nonetheless emotionally disengaged. These men usually make impulsive and poorly considered commitments to marry the needy, dependent, borderline women as a way to avoid being alone. They are usually quiet, smart, conforming men who are attracted to the charismatic, extraverted persona that these women present when they are "on the market". Usually, the men describe how their wives changed overnight once "the deal was sealed", and they are reluctant, regretful participants in the divorce process, not the "take no prisoners" litigants like the ego-driven men. After many unsuccessful attempts to work out compromises with these unstable and uncompromising women, the men withdraw from the wives out of frustration and in self-defense until they decide they have had enough.

The classic "War of the Roses" divorce scenario is played out between the borderline woman and the narcissistic man. Allegations are exchanged without consideration of the consequences for the children, and actual parental alienation--active attempts by both parents to smear the other parent and to enlist the children in the conflict--are the norm. Allegations of abuse or neglect are also the norm, and sometimes are true (the base rate for truthful abuse allegations in divorce cases is under 5%). Husbands almost always have control of the money in these relationships, and use the children as leverage to minimize their financial exposure in the final settlement. The women frequently want to use the legal system to extract "justice" for the behavior of their husbands, and make unwise decisions to prolong the litigation and thereby remain negatively engaged with the husbands. Husbands frequently accuse the wife of being "crazy" or "unstable" and a danger to the children, even though they have usually been uninvolved as parents prior to the divorce. Ironically, both spouses are in some respects "right" in their claims about the other, although the exaggeration and hyperbole makes both stories hard to believe.Litigation is usually protracted and needlessly expensive, and terminated in some kind of "lose-lose" settlement agreement for both property and custody of the children.

The big losers in this drama are the children, who usually end up spending more time with mom and never establishing a good connection to dad, even if he faithfully exercises visitation. Conflict between the parents usually continues throughout the child's life, leading to emotional behavioral problems, and and as the research shows, handicaps the children in their ability to form intimate relationships as an adult.

Discussion of the other patterns to follow.