Why are clients willing to pay for coaching during divorce litigation? Because feelings really do matter to our clients

"You shall know the truth, and the truth will set you free..." John 8:32

For more than 35 years now, since my third year in law school as a clerk in a boutique family law firm, I have had the privilege of listening to family law litigants tell me their stories. Most are disturbing and sad, tragic for the children involved, some are funny, and all involve the clients expressing their deepest desire to "tell their story" in their own way, and have someone really understand what they have experienced and what they fear.

As a pioneer and innovator in this unique niche in the litigation consulting industry, I frequently have to help family lawyers figure out a way to explain the value of my services to their clients. As litigants have become more and more cost conscious, lawyers have become more and more reluctant to talk to their clients about how a talented and experienced coach and consultant could help them and their families navigate a very trying and expensive process. This reluctance is a combination of prudent business and professional judgement and of a failure to understand the depth of the emotional strains faced by their clients who feel victimized by a system they don't understand and can't control. Some of my more empathic lawyer friends have truthfully told me they call me because they "really don't want to listen to that ..." and they know I will not only listen and help the client, but then provide them with legally relevant information that will help them win victories for their clients.

As a shrink who operates in a world full of trial attorneys, I have taken a fair amount of mostly good-natured ribbing about being interested in our client's' "feelings".  (To be honest, there are times when the attorney part of me doesn't care much about those feelings either.)  Now, advances in brain imaging and monitoring have provided the scientific foundation for why "feelings matter" to our clients. The research exposed participants to a very confusing and stressful set of unfamiliar circumstances (sounds like family law litigation to me-just saying). The imaging and monitoring technology showed a brain clearly in chaos: rapid, spiking EEG waveforms, and an overall chaotic pattern of brain over-activity (recognize any clients yet?). Only one intervention was required to completely change the brain wave patterns to normal, rhythmic, stable, modulated, and calm: correctly labeling the "feeling" being experienced. Even I was impressed with the speed and the totality of the measured and experienced effect. 

Who knew? I do now, and so  do you. Labeling feelings helps the brain organize itself. Knowing the truth about what the feeling is (an accurate label) allows the brain to change the way it functions and return to normal, and it happens fast!

The other value that skilled coaching brings to family law litigants (and their lawyers) is the developing the ability to perform relevant and critical litigation tasks at a high level of skill.  Lawyers seldom remember that the most widely experienced fear for 2/3 of our clients is: fear of public speaking (testifying). And as my clients have told me, this fear is magnified because they believe that if they fail to perform, they will lose their children (and that could actually happen).  

Teaching people the rules of evidence relevant to their testimony, the psychology of non-verbal persuasion in the courtroom for witnesses, cross examination and direct examination skills, and replacing fear with confidence provides clients with just the value that the credit card commercial claims: it's priceless.  

For parents in custody litigation, knowing they did their part in contributing to putting on a good case, even if they didn't get exactly what they wanted, provides peace of mind that eludes litigants who do poorly in a deposition or in court. More of my clients have wished aloud that I had been hired sooner than have complained about my fees or that I was hired at all (the ratio is about 1000 to 1--there's always one). 

As lawyers, even family lawyers, it's easy to ignore, minimize, or brush off those messy "feelings" that come with family conflict and the resulting chaos. Just remember, it's not the client's "will power" that needs adjustment, it's their brains.  There's help for that. 

Now you know the truth...Call me.

Updated and Re-Titled: When ALL Else Fails-Minimizing the Damage Before, During, and After Divorce is now available

Happy Monday,

I am pleased to announce that my book "When ALL Else Fails-Minimizing the Damage Before, During, and After Divorce"  is now available on Amazon and Kindle. Here is the link: http://tinyurl.com/qzlndut 

I continue to welcome referrals for trial preparation/consultation cases in family law and commercial litigation and post divorce coaching.

Thanks for your continued support.

Child Custody Evaluations: Solution or Contributing Cause to Ongoing Conflict?

When your only tool is a hammer, every problem looks like a nail.  Abraham Maslow


Family law professionals, especially family court judges, face difficult decisions every day. Among the most challenging are the high conflict custody cases where both parties are angry and intransigent, often trading explosive allegations about the other party's character and parenting flaws. Faced with these kinds of dilemmas, lawyers and judges search for an impartial third party to provide an "objective" perspective to help resolve the dispute and prevent further litigation and damage to the children. Frequently, this means turning to a mental health professional (almost always a psychologist) to conduct a "child custody evaluation" and report back to the court with a recommendation. I know, I have been one of those evaluators as a court appointed expert, and as a divorce litigation consultant, I have, until recently recommended child custody evaluations to my clients. No more.

Some background facts before I explain my rationale for my radical change of position.

• Only 30% of divorces occur in high conflict marriages--70% of all divorces are low conflict.
• Even with those numbers, 98-99% of divorces settle without a trial.
• Parents agree to custody arrangements on their own 90% of the time (Melton,  et al 2007)
• The latest census data finds that 78% of divorced children live primarily with their mother and 12% with their father. (Best available data on base rates for which parent ends up with "primary possession" after a divorce.)

Let's pause here for a minute. This means that, left to their own devices, most couples either agree to let mom have primary possession, or circumstances eventually evolve to mom having primary possession in 4 out of 5 divorces (they also agree to letting dad have primary possession in some cases). Regardless of the rhetoric about "equal rights" for dads, this is the reality, and since 90% of these arrangements are the result of agreements between the parents, it is hard to argue that the courts are driving primary possession by moms. Ok, but what about those high conflict cases that don't settle custody issues by agreement (including mediation)?

• Since low conflict (and even many high conflict) divorces settle without trial, that means the 1-2% of trial cases comes from the 30% of high conflict divorces, making the odds of trial in a high conflict case about 1 in 30 to 1 in 15, or 3-6%. 
• The best available research suggests that a child custody evaluations lack ANY scientific evidence for their validity or reliability  (Emery, Otto, and Donohue, 2005)
• There is NO psychological test that is a valid measure of "best interest of the children" nor to deciding the issue of either custody or possession.
• Nationally, the average cost of a custody evaluation is just under $4000 (in Dallas and surrounding counties in Texas, that number is at least twice that).
• The only long term studies of child custody evaluations (there are only 2) have found that child custody evaluations INCREASE the chances of later re-litigation by 2-3 times over those cases with no child custody evaluation! 

In my career as a divorce litigation consultant, I have had the opportunity to review hundreds of child custody evaluations. These reports range from 10-40 pages long, take anywhere from 15-40 hours of time to prepare, and cost many thousands of dollars. Most of them recommended "joint custody", and many of them recommended 50/50 possession or visitation. On it's face, recommending a joint custody in a high conflict divorce is absurd! The fact that the litigation has proceeded this far is proof that cooperation is unlikely without some intervention to resolve the underlying conflict between the parents. No child custody evaluation is needed to send parents off to counseling or parent facilitation.

There is NO scientific support or basis, based on psychological testing nor any scientific research, for those recommendations (or any other). None. And not one of those reports (including mine) ever mentioned that fact. We all pretend that we're being objective and scientific but in fact, in the absence of any scientific support for the process, the results are purely personal opinion driven by our own values and beliefs (or biases and prejudices) and dressed up in psychological terminology. Well intentioned opinion but mere personal opinion nonetheless.

Lawyers and judges seek child custody evaluations to help break the impasse in high conflict divorces where the parties cannot agree on child custody issues in hopes of avoiding litigation. Who can blame them? And it is true that in some cases, the child custody evaluation report which supports or fails to support the allegations of one parent or the other sometimes leads to a settlement in the short run. That's sort of a good thing. But remember, the goal of a child custody evaluation is to resolve the custody dispute.

The problem is, the underlying problem of ongoing parental conflict is NOT resolved in a child custody evaluation, and the only available scientific evidence suggests that the child custody evaluation made it worse not better since the EVALUATION process itself apparently increased the odds of re-litigating later by two to three times. If child custody litigation is viewed as an illness, and the prescribed treatment (a child custody evaluation) eliminates the symptoms in the short run but triples the odds of the disease returning in a few years, in any other field of medicine, the treatment would be taken off the market as ineffective and unreasonably dangerous!

As a professionally trained and former forensic psychologist and child custody evaluator,  (and co-author of a child custody evaluation system) it pains me to say this, but the available evidence suggests that child custody evaluations are part of the problem NOT part of the solution for high conflict divorces. The risks outweigh the benefits, and until that changes, the procedure needs to be taken off the market. 

I know both lawyers and judges as well as psychologists will disagree, but I challenge anyone to read this article and present a compelling counter argument...http://www.cstaffordlaw.com/Emery.pdf

Innovations in services for families: i360life

Many family law cases are complicated by the presence of a mental health issue. Sometimes it's substance abuse by one (or both) spouses; sometimes the drinking or drug use is a problem for one of the children in the family, and it is precipitated or exacerbated by the divorce and litigation. In other cases, a stay at home mom is depressed, anxious, and overwhelmed, and dad is working full time and perhaps traveling regularly for days at a time.

Once the divorce litigation is filed and the case is under way, neither lawyers nor the treating professionals have had many options for providing support to the patient and the family in these challenging cases; usually those choices were counseling or therapy once or twice a week, or inpatient treatment or rehab. Neither of those options provides much support for the children--once a week therapy for mom doesn't really help them at all in the short term, and taking mom away completely for a month or two leaves them abandoned to some relative or unfamiliar caretaker. Until now, there has been nothing in between these two traditional treatment options.

I recently visited with Dr. Kevin Gililand, the CEO and founder of innovation360 to learn more about their unique and innovative services. His rapidly growing company has individually customized and personally designed services to fill the gap between inpatient programs and one hour per week therapy. (See www.i360life.com for more information.)

Innovation360 provides a menu of traditional services but also provides "14 day coming home"  programs for transitions from inpatient programs to home, life management (in home support and structure for self-management, child care supervision, etc.), and ensuring a client's home is safe (and drug free) after returning from rehab. Their "life development"  program is unique in providing in home support by a mental health professional which includes social support, nutrition support, and activity support for as many hours as needed, from a few hours per week to 24/7 care.

As I thought about the most challenging cases I had worked on over the last few years, it became clear to me that this kind of 'in-between' service could have been an immense help to a number of families during their divorces. For many people, having someone with them every day to help them make better decisions and to avoid reverting to old and dangerous behaviors while putting their therapy lessons into practice in their daily lives would have been incredibly valuable and saved the parties a lot of money and grief.

For family law attorneys in this geographic area, this is a new resource for helping in your most challenging cases.

(I am not affiliated with Innovation360 in any way and have NOT been compensated for this article.)

Begin With the End in Mind (with thanks to Steven Covey)

(an excerpt from my upcoming book: What YOU Need to Know about Divorce: Before, During, and After)

Three grand essentials to happiness in this life are something to do, something to love, and something to hope for.-Jose Addison

Having worked with hundreds of clients as a therapist, marriage counselor, divorce litigation consultant, child custody evaluator, divorce coach, and divorce recovery facilitator, one characteristic is shared by all of them: they didn't know what they wanted, either from the divorce or from life after divorce. This lack of a personal vision and long term plan for their lives is certainly not limited to divorcing people, in fact, it's a common occurrence in the general population. Many, if not most, people kind of stumble through life reacting to life events or bouncing from one obstacle to the next like the ball in a pinball game.

Even those people who are goal directed, and successful, are frequently temporarily left directionless by divorce.  Whether they initiated the divorce or were blind-sided by it, divorcing people are quickly sucked into the legal machinery and taken for a ride by a system over which they have very limited control. This leads even the most strategic thinkers and long term planners to revert to short term micromanagement and sometimes, to poor decision-making. The emotional stresses and losses occasioned by divorce lead to the development "tunnel vision", an actual, physical reduction in perceptual focus to a very narrow part of the world, exactly like that experienced by rookie soldiers in combat. Events outside "the tunnel" don't even register, and consequently, can lead to very bad surprises.

Adding to the difficulties caused by stress-induced "tunnel vision" is the tendency of the most intelligent and successful people to try to bring their professional skills to bear on their lawyer and the legal system in their divorces. Unfortunately, unlike in their usual professional or business realm, these folks "don't know what they don't know" in the legal arena,  so they muster their "leadership" resources and experience to try and "manage" their divorce litigation and the process of the emotional divorce of their spouse and children. The result is NEVER pretty. It is, however, always costly and damaging to nearly everyone involved and legally ineffective or even counterproductive.

The antidote to this self-destructive tendency to over-control is to stop, think, and carefully consider  "the end" of the divorce. Here are a few guidelines to help craft a personal vision and plan for you.

Thinking ahead, 5 years AFTER your divorce is final, get a pen and a piece of paper and write down the answers to these questions:

1. What kind of relationship do you want with your children? What kind of relationship do you want the kids to have with the other parent? What do you need to do now to get there? (if you don't know the answers, then get a mental health professional to help you figure it out)

2. Where do you want to live? What will it take in terms of financial resources to make that happen? What is your plan for achieving those financial goals?

3.Visualize your home--what does it look like, and what "stuff" do you want to have in it? (this will help you decide about personal property division in your divorce too)

4.What do you want to do for a career? Do you love what you're doing or is this a good time to re-think your career path?

5.  Are you willing to forgive your spouse, regardless of whose "fault" the divorce may be? Or do you want to "get even"? (Divorce court is NOT going to help you get justice or fairness as it relates to your treatment by your spouse, regardless of what you may think)

6. Most importantly, what would you say is the purpose for your life? Why are you on the planet? What do you want your legacy to be?

To begin with the end in mind in divorce, one must step back from the chaos of divorce and divorce litigation and consider your life, the big picture. If you know where you're going in life, then making decisions about your divorce is MUCH easier.  In each of the important domains of your life, knowing where you want to end up will help you decide what to do in your divorce that will eventually get you there, and to avoid taking steps that will lead in a direction away from your goals.

Covey is right-begin with the end in mind, even in divorce.