"My wife is mad at you," my client told me, "for what you said to her attorney. I hope I can smooth this over."
What did I say to the wife's attorney to make her so angry? That's a harder question to answer than you might think. As it turns out, the wife wasn't reacting to what I actually said to her attorney, but to what she thought I said. Here's how it played out. First, my client came to me with a concern. We discussed the concern and I said I would mention it to the wife's attorney. That's what I did, in the course of a longer phone discussion about various unanswered questions in the couple's divorce. That attorney then phoned the wife and they had their own conversation.
Do you see where this is going?
There is a popular children's game that is often called "telephone" in the United States (it's also known by other names). Children sit in a circle and one child starts the game by whispering a message into a neighbor's ear. The message travels around the circle in this manner, whisper after whisper. By the time the message comes back around to its originator, it typcially bears little resemblance to what was initially said. For example, the phrase "I like cheese pizza" might become "Mike eats Pete's lunch." Poor Pete — and poor Mike, finding himself accused of a crime he never committed!
Far too many divorce lawyers (including me, more often than I would like) unwittingly play this game whenever we act as intermediaries for our clients.
To be clear, I believe these miscommunications are generally unintentional and well-meaning. I recently had a 4-way meeting (with both spouses and their respective attorneys) where the other spouse's attorney raised concerns about how to introduce new significant others to the children. It's a common concern, but when I asked the other spouse about it directly, it turned out to be a non-issue! Given how concerned the other spouse's attorney had seemed, if all communication had gone exclusively through the attorneys, there could easily have been a very damaging — not to mention expensive! — misunderstanding.
The second example above illustrates a simple solution to the "telephone" problem: divorce attorneys need to start encouraging their clients to participate in joint sessions early on, to give them a chance to discuss their concerns face-to-face and decrease the possibility of their lawyers inadvertently causing misunderstandings through miscommunication. Clients may balk at the prospect of paying two attorneys for their time in these sessions, but the reality is that face-to-face discussions are more efficient and therefore less expensive than insisting that lawyers handle all of the communications.
Collaborative divorce practitioners understand this point well. In collaborative divorce, all of the major substantive discussion takes place in joint sessions attended by the attorneys and a "collaborative coach," the latter being a neutral party in charge of managing the process and helping the couple navigate difficult conversations. Collectively, the team focuses on what the parties have to say, not what the attorneys think they have to say. These sessions certainly can be expensive in the short term — after all, there are three professionals in the room — but in most cases, the clients save money in the long term by avoiding miscommunications about their concerns and having an opportunity to explore settlement options face-to-face. There are also tremendous benefits — both intangible and financial — to taking ownership of one's own divorce agreement, as fellow collaborative divorce attorney Justin Kelsey has described so well in a blog post just today.
The parting message is two-fold. First, to fellow lawyers: Whenever possible, encourage your clients to make joint settlement meetings the centerpiece of their divorce process. You might even consider becoming collaboratively trained and using a formal collaborative divorce process. Second, to divorcing spouses: If you are in the midst of a divorce and find yourself asking, "How did negotiations get to this point," and you haven't spoken with your spouse face-to-face in some time, consider pushing for a joint settlement meeting to clear the air and help bring everything back into focus.
Don't let your divorce play out like a children's game.