What Is Required to Make Collaborative Divorce Truly Collaborative?

Those of you who have been reading my series of articles about “Collaborative Divorce” should be well aware of the fact that I have quoted Stephen Willis, Ph.D. extensively throughout that series. As I have mentioned in the past, Dr. Willis is an expert on the subject of collaboration. He has consulted to businesses in a wide cross section of industries. He functions as a consultant, executive coach, and facilitator to CEOs and management of Fortune 500 companies, start-ups, and non-profits. His work with non-profits has been funded by foundations such as Packard, Marin Community Foundation, San Francisco Foundation, and Pante Rhea. Dr. Willis has also written two books on the subject. One is titled Power through Collaboration: The Formula for Success in Challenging Situations and the other is titled Power through Collaboration: When to Collaborate, Negotiate, or Dominate! He also happens to be the founder and moderator of the Power through Collaboration LinkedIn group. I am an active member of Dr. Willis’ LinkedIn group and have had the pleasure of getting to know him as a result.

To be perfectly clear, my goal in writing this series of articles is to improve the “Collaborative Divorce” process. In fact, I ended my article titled “The Consequence of Unenforced Ethical Guidelines for Collaborative Divorce” as follows: “I STRONGLY encourage the collaborative community to invite Stephen Willis, Ph.D. to conferences as a plenary speaker because these very serious issues must be adequately addressed.” After reading my last article titled “‘Collaborative Divorce’ Is Collaborative in Name Only,” Dr. Willis asked me the following question: “What would it be like to make collaborative divorce truly collaborative?” I responded as follows:

First, everyone involved in the process (professionals and clients alike) must “understand the meaning of collaboration and what it entails.” To quote Dr. Willis, this is essential for the following reason: “Most of us have seen and heard people insisting that their actions were collaborative when the evidence clearly showed otherwise. Naturally, the all too human capacity to be blind to our own behavior and its impacts is usually viewed as the most obvious culprit. However, another overlooked chief suspect is simply the confusion about what collaboration actually is. Collaborating can be complicated enough without various parties having different understandings of what collaboration is all about. Effective collaboration does begin with and depend upon communication and shared understanding, starting especially with a shared understanding about the meaning of collaboration and what it entails.”

While Collaboration Potential does not guarantee successful collaboration, it must exist for true collaboration to occur. Thus, you must determine the PtC [Power through Collaboration] Type and PtC Motivation for each professional and client involved.

Dr. Willis describes the following 5 different personality types: (1) Collaborator; (2) Cooperator; (3) Competitor; (4) Enslaver; and (5) Predator. He also explains why collaboration obviously works best when dealing with Collaborators and Cooperators. Collaboration becomes increasingly difficult and potentially dangerous depending upon where on this scale the personality types involved range. Dr. Willis explains that the PtC Type is a combination of Disposition, Aspiration and Dynamic. “Cooperation Disposition is the habitual mode of cooperation that comes naturally and reflexively. Disposition is stable and persistent. Any changes come slowly and gradually, and require ongoing reinforcement over time…. Cooperation Aspiration is the cooperation mode that a person genuinely aspires to and is willing to work hard to engage in…. Cooperation Dynamic labels are based upon the dynamic each PtC Type operates by when cooperating with others.” The Cooperation Dynamics are as follows: (1) Mutual Success; (2) Win-Win; (3) Win-Lose; (4) Control-Submit; and (5) Live-Die. The distinction between Mutual Success and Win-Win is set forth in my article titled “‘Collaborative Divorce’ Is Collaborative in Name Only.” According to Dr. Willis, “The predisposition and aspiration to collaborate are ‘strong’ for Collaborators, ‘modest’ for Cooperators, ‘weak’ for Competitors, ‘negligible’ for Enslavers, and ‘none’ for Predators.” Please keep in mind that the PtC Type for attorneys tends to fall in the Competitor category or even further down on that scale. In fact, in response to my review of his book, Dr. Willis said, “Mark, your assessment of attorneys as being of the ‘Competitor or worse’ type is probably the prevailing viewpoint as well.

The PtC Motivations for Cooperation range from weakest to strongest as follows: (1) Survival, (2) External Accountability; (3) Internal Accountability, (4) Mutual Defense, (5) Achieve Own Goals, (6) Common Goals, (7) Family & Social Bonds, (8) Shared Mission, and (9) Shared Values. According to Dr. Willis, “Shared Values and Shared Mission are most effective at fostering collaboration. Family & Social Bonds and Common Goals also foster collaboration, but less so. Workable Collaboration Potential requires Common Goals at a minimum. Survival motivation is least likely to foster collaboration. Survival is variously viewed as a motivator of cooperation or as a motivator of conflict. In general, when Survival is the lone PtC Motivation, usually the result is ‘every person for themselves.'”

The more collaborative the PtC Type, the more likely the Collaboration Potential with a PtC Motivation of less than Shared Values. Considering the typical PtC Type for attorneys, true collaboration seems very unlikely, unless their PtC Type changes. Dr. Willis’ “working rule of thumb is that genuine aspiration can move a person’s PtC Type up by a half or a full range with just a modest yet sincere effort. To achieve a larger upgrade requires transformative events, compelling motivation, and genuine commitment, plus a lot of hard work to break old habits and replace them with a more collaborative way of seeing and doing. Often professional coaching is needed as well.”

I have written a series of articles titled “Lessons I Learned from My Parents, Parts I through VII.” Those articles only give a partial window into the “transformative events” I experienced that led to a SIGNIFICANT upgrade of both my PtC Type and PtC Motivation.

The greatest “transformative event” occurred as a result of my experience as the successor trustee of my mother’s estate that was litigated through trial and then the appellate process. Prior to that experience, I had similar cognitive biases to those of the vast majority of lawyers, judges and other professionals working in the legal field. Until my rude awakening in that case, I had actually convinced myself that I had the ability to protect my clients from the failings of our legal system.

That case involved a creditor claim filed against my mother’s estate by her second husband, whom she divorced 10 years earlier. As a bit of background, I should mention that my mother and her ex-husband kept in contact until approximately ten months before her death. Since my mother was unable to defend herself, one of the key issues involved the claimant’s knowledge that she had Stage IV Cancer. He denied any such knowledge and the trial judge, Aviva Bobb, believed him and made such a finding. However, our mother’s relationship with my two brothers and me was far from ideal. She didn’t want us to be insincere in our feelings toward her and thus, she didn’t initially share her diagnosis with us. Instead, she told us that she was suffering from diverticulosis and outright denied that her cancer had returned. However, that diagnosis didn’t seem to mesh with her symptoms and appearance. I therefore asked the one person in the world with whom she would have shared that information – her ex-husband, Charles Colby. He confided in me that she did in fact have Stage IV Cancer and told me where it had spread. When my mother subsequently told me of her true condition, I never mentioned that I already knew. My brothers only learned the truth three weeks before she died, when I was finally able to convince her to tell them. Since a dead person cannot defend themselves, the issue as to why Charles Colby waited to pursue his “claim” against her until days AFTER she died was extremely relevant.

Another issue involved in that case was that of domestic violence. This issue was relevant because it explained why my mother ultimately severed all contact with Charles Colby ten months before her death. During the trial, we described the history of domestic violence perpetrated against my mother by Charles Colby, both during their marriage and following their divorce. As proof of the domestic violence, among other things, we produced a police report filed after Mr. Colby had kicked my mother so hard in her chest that the silicone implant ruptured, causing her to be admitted to the hospital in critical condition from silicone poisoning. To our disbelief, Judge Bobb made a factual finding that the perpetrator of that violent act was my father and not Charles Colby. This finding was made, despite the fact that my mother only had the implant to replace her breast after it was removed due in 1984 due to cancer. She was married to Charles Colby at that time and had absolutely no contact whatsoever with my father any time thereafter. Judge Bobb disregarded all of the evidence of domestic violence and found that Charles Colby had never domestically abused my mother.

I cannot even begin to describe what it feels like to sit in courtroom and listen to a judge re-writing history. As I have said in the past, if a judge properly applies the law to the wrong facts, the result is far from just. Furthermore, an appellate court cannot change a trial judge’s factual findings. The issue on appeal is whether or not the law was properly applied, based upon the facts as found by the trial judge. When the reality of what had occurred finally set in, I seriously considered relocating to another country and giving up the practice of law. However, after a five week trip to Australia and New Zealand, I decided instead to remain in the United States and continue practicing law, but to take this “transformative event” to chart a new course for my approach.

It should be noted that few people ever receive this “life lesson” because only 2%-3% of cases actually go to trial. Moreover, even if a lawyer takes a case to trial, remember that they are involved as the lawyer and not the client. The only people who know the true facts are the parties themselves, not their legal representatives. Therefore, lawyers never know for certain whether or not a judge’s factual findings are wrong.

Some of you may be wondering why my case happened to be one of the select few to go to trial. The answer involves actions by the “mediator” following court-ordered mediation. At the time, I had a great deal of respect for Retired Los Angeles Superior Court Judge Robert Letteau, who was the immediate past Supervising Judge for Probate in Los Angeles County Superior Court. I told my attorney to try and get opposing counsel to agree to use Judge Letteau as the mediator. I said that if Judge Letteau believes that the claim is legitimate, I would write a check to Charles Colby in the amount that Judge Letteau deemed appropriate. We “mediated” the case before Judge Letteau, who determined that it was a ridiculous claim, but advised me to pay Charles Colby the amount of money my attorney thought it would cost us to defend the case through trial, which my attorney estimated to be approximately $220,000.00. We offered to settle the claim for that sum, but the claimant refused to settle for less than $1 million dollars. Within a matter of days, Judge Letteau sent a letter to both sides, strongly encouraging the claimant settle for our generous offer of $220,000.00 and stating that Charles Colby would never prevail at trial. Unfortunately, as a result of that letter, I was unable to settle the case for more than $220,000.00, without violating my fiduciary duty to my two brothers, who were beneficiaries of my mother’s trust. In case you haven’t realized it, the difference between what occurred at “mediation” and what occurred at trial led me to conclude that “evaluative mediation”, “soft arbitration”, or as I like to call it, “an alternative form of litigation”, is not mediation. My experience led me to conclude that such “mediation” is more perception than reality, unless the facts are undisputed and the law is crystal clear. This “transformative event” prompted my basic mediation training with Forrest “Woody” Mosten in 2008 and all of the subsequent work I have done in the field of mediation and collaboration. In case you are wondering, Judge Aviva Bobb awarded Charles Colby the sum of $900,935. Since I was the successor trustee and had selected the attorney who defended the estate, my family held me responsible for this miscarriage of justice. It effectively ended my relationship with my two siblings and with my maternal grandmother, who disinherited me before her death.

I want to be clear that the events themselves were not responsible for the shift in my perspective. My compelling motivation is to effectuate change such that in the future, children don’t have to live through anything even remotely close to the challenges I had to endure because of my parents and the way in which their parenting (including the manner in which they handled their divorces) negatively impacted me. I have most certainly demonstrated my genuine commitment and hard work. I don’t find the same is true for the vast majority of the professionals involved in “collaborative” practice. The PtC Type and PtC Motivation of professionals involved in the process must be screened before they should be able to call themselves “collaborative practitioners.” For goodness sakes, considering that we are talking about divorcing couples, if the professionals aren’t of the right PtC Type and don’t have the right PtC Motivation, what can one expect?

Second, children must be involved in the process because “the Mutual Success Dynamic seeks an outcome that is optimal for the circumstances and that maximizes the overall success of all the stakeholders.” This is done some of the time when minor children are involved, by involving child specialists. Guess what? Children, whether they are minors or adults, are stakeholders in their parents’ divorce. After all, the children have interests involved and the outcome of the divorce will most definitely impact those interests. Parenting plans aside, the manner in which parents divorce certainly impacts the legacy they leave their children. Do parents want their kids to feel a sense of relief when one of them eventually dies, because they can no longer play tug of war with the kids (even adult children)? That’s the legacy to which I am referring.

Third, according to Dr. Willis, “Strong Collaborative Potential does not guarantee Power through Collaboration…. To transform Collaboration Potential into Power through Collaboration requires attention to and skill with respect to the Collaboration Essentials.” The 6 Collaboration Essentials and their respective point values are: (1) Communication [1 point], (2) Understanding [2 points], (3) Competence [2 points], (4) Respect [3 points], (5) Trust [4 points], and (6) Safety [4 points]. “Transformation via the Collaboration Essentials works sequentially as each component builds upon preceding components.” Lawyers tend not to be very trusting individuals and much of that is projection. In the absence of Trust and Safety, even the existence of all other Collaboration Essentials is neutralized to ZERO.

I firmly believe that proper screening of the professionals involved in the process is ESSENTIAL. I also believe that they should be required to undergo therapy for the reasons stated by Kate Scharff, M.S.W. and Lisa Herrick, Ph.D. For purposes of full disclosure, I was in therapy twice a week for two years, commencing in the beginning of January, 2009. I don’t think anyone would be surprised by this, considering all that my family and the litigation system in this country has put me through. I’ll tell you one thing, I am extremely self-aware and psychologically-minded as a result of that therapy.

As long as the professionals working with them have Collaborative Potential and the Collaboration Essentials between them are strong, the clients themselves needn’t be of the proper PtC Type or PtC Motivation to obtain a better outcome than would occur through litigation. Nevertheless, the professionals should be properly evaluating the PtC Type and PtC Motivation of the clients from the outset to eliminate the cases wherein collaboration would be dangerous. Assuming that those cases were eliminated, they should be doing things to upgrade the PtC Type and PtC Motivation of the clients and build strong Collaborative Essentials.

Dr. Willis’ response to my analysis was as follows: “I am very impressed with your application of the Power through Collaboration Formula to the practice of collaborative divorce and its professional community! I am very impressed with how clearly and straightforwardly you applied the PtC Formula to the issue of how to better enable collaborative divorce and its professional community to be truly collaborative! And thanks for sharing your collaborative development from the PtC framework. Congrats on your ‘upgrade!’ I have met attorneys with real Collaboration Potential as indicated via their PtC Type and PtC Motivation. They usually describe an uphill battle with respect to utilizing that Collaboration Potential in their legal practice. But I think that there is a sizable community of attorneys with real Collaboration Potential who desire to use the practice of law to achieve ‘mutual success’ or at least ‘win-win’ outcomes. I think one of the fundamental questions for the collaborative divorce community as a whole is — what is its real Collaboration Potential?”

I am pleased to report that on May 31, 2014, Dr. Willis advised me that he was contacted by an attorney from a collaborative law practice group in Michigan to discuss his doing a presentation or training for them. The attorney learned about Dr. Willis through my posts.

As an aside, but very much related to the theme of this article, I would like to share my reaction to an article titled “Mutual respect the goal of a collaborative divorce” that was published on May 29, 2014 by the Vancouver Courier. My comment was as follows:

This is a wonderful article and it discusses the real potential of a a truly collaborative divorce. The following quote in the article from someone who successfully completed such a divorce says it all: “Collaborative divorce gives you the tools you need. I couldn’t have had all this joy and family without the collaborative process.” Bear in mind that she also said the following: “I wouldn’t want anyone to think it was easy. It wasn’t.” How do I know for certain that is was a “truly collaborative divorce?” Because this same individual said the following: “Despite what started as a deeply unhappy separation, she and her ex-husband are now good friends, and when he remarried a few years later, she was comfortable attending the wedding and has developed a friendship with his new partner.”

I know a tiny bit about how it feels when ex’s are ready, willing and able to attend their ex’s wedding. We invited my ex to our wedding, which took place on May 3, 2014. After receiving the Evite to our wedding, we received the following reply: “Looking forward!” By the way, that also required flying to Los Angeles from New York. After the wedding, I sent the following email: “It really meant a great deal to me that you attended our wedding. It was wonderful seeing you, as always.” The response I received was as follows: ” I was very happy to be there and meant a lot to me too. The two of you make a great couple and wish you all the happiness in the world. Hope you had a great honeymoon.” It would be a huge mistake to believe that our relationship ended well. I should also point out that we did not have a “collaborative divorce,” but we didn’t litigate either.

That being said, the article mentions that “an estimated 40,000 lawyers are trained in and employing the methodology.” Let’s not confuse “trained in” with “employing the methodology.” They are by no means one and the same. Assuming that 40,000 lawyers have been “trained in” collaborative divorce, it would be a HUGE assumption to believe that those same 40,000 lawyers “employ the methodology,” as discussed in my article titled “‘Collaborative Divorce’ Is Collaborative in Name Only.”

As far as I am concerned, actions speak louder than words. Can other so-called “collaborative professionals” say the same thing with regard to their relationship with their ex? This applies to all “collaborative professionals,” regardless of profession. After all, as Stephen Willis, Ph.D. says, “Collaboration on balance cleanses and restores the solution development environment of the pollution from Domination and win-lose Negotiation.” I therefore think that their true “collaborative” ability will be reflected in the dynamics of their prior marriage(s), especially if children are involved (regardless of age). Furthermore, it only takes one person to start a conflict, but it takes two to escalate it. Did any of these “collaborative” professionals start a conflict when their own relationship may have ended? If not, did they do anything to escalate that conflict? It seems to me that the answers to these questions demonstrate whether or not a “collaborative” professional walks the walk and talks the talk or if they are merely calling themselves “collaborative.”

Interestingly enough, after drafting this article, I came upon an article titled “How to Become a Mediator – in 11 steps!” that was published in Mediate2go on May 15, 2014. The following is a quote from that article:

“Becoming a good mediator will require a great deal of deep inner reflection in addition to years of hard work, developing the necessary skills, knowledge, experience and credibility…. A good mediator is seen as someone who has basic legal knowledge, someone who is extremely emotionally intelligent, someone who is a strong communicator, someone who is friendly and able to connect with everyone in the mediation room while being perceived as a neutral and impartial third-party….

In order to become a good or great mediator, you must be effective at resolving your own personal conflicts…. The best mediators have faced their own conflicts and developed rich personal insights into relationships, based on all of this experience. Completing a few courses or even a degree in mediation and conflict resolution does not imply that someone will be a good mediator. Rather, it is a combination of theoretical and practical experience. Similar to psychologists in training who must attend therapy, mediators should constantly engage in self reflection and ensure that they look at themselves realistically and honestly, in order to see where the strengths and weaknesses are in dealing with conflict. Some mediators will even go to therapy to gain some of these deeper insights. To be a great mediator is to dedicate your professional and sometimes life overall to learning about conflict resolution. You must constantly learn about conflict and be open to hearing feedback from others. You should also speak with colleagues in the field to debrief cases regularly.” [emphasis added]

Before anyone attacks me regarding my estranged relationship with my siblings, please note that things that parents or grandparents do in their estate plans seal the deal upon their incapacity or death, so to speak. Our mother made me the successor trustee of her trust. She didn’t make an equal distribution to one of my siblings and placed me in control of all or part of their inheritance until I reached the age of 75 years old. She passed away on September 21, 2005 and I will be 49 years old on July 4, 2014. This cannot be undone, nor can what occurred with my relationship with my maternal grandmother for the rest of her life as a result of the “blame game” pertaining to the unjust outcome of my mother’s probate proceeding. Learning of her death through correspondence from an attorney months later, advising me that I had been disinherited and the estate left entirely to a sibling of mine also cannot be undone. The damage caused by the combination of our mother’s estate planning, the outcome of the probate case, and the events that occurred thereafter can never be rectified. I have learned a great deal from the many challenges and setbacks I have experienced throughout my life, but I would by no means recommend being taught in such a manner. Reestablishing those relationships is not possible at this point and nothing good would come of it. I spent a great deal of time addressing this issue while undergoing therapy and this sad reality became abundantly clear. Unfortunately, the way in which parents and grandparents act when it comes to divorce and estate planning frequently results in a legacy of familial dysfunction.

In any event, the items emphasized in the above-referenced quote from the article titled “How to Become a Mediator – in 11 steps!” expresses exactly what I have been saying about both mediators and collaborative practitioners for quite some time.

Source : Mark Baer Huffingtonpost.com