The more you learn about why couples come together initially, and why they fall apart, the more easily you will begin to intuit the other side of the story.
By Kate Scharff, MSW and Lisa Herrick, PhD
You’re meeting a new client, Mrs. X. She is furious. Her husband of 15 years has precipitously asked for a divorce. She describes him as work-obsessed and emotionally unavailable — both to her and to their three children. She wants primary residential custody; after all, he barely knows the kids—he’s shown up for the occasional dinner and soccer game. Makes sense to you. In an early settlement proposal, you float an access schedule in which Mr. X would have the children alternate weekends and one night during the week. Then comes the angry rejoinder from Mr. X’s counsel: “My client is highly offended by your client’s implied assertion that he is anything but a loving father who is entitled to equal access to his children.” They propose a 50/50 access schedule. Mrs. X is panicked and full of rage, and you are off to the races: thrust, parry, proposal, counter-proposal, mounting acrimony, and mounting fees. Six months and a custody evaluation later, they arrive at a compromise agreement that looks very much like the one that both you and opposing counsel could have predicted from the beginning.
Clients come to family law attorneys angry and reeling. Their stories are compelling, full of feeling and detail. Whether you are working in a traditional settlement model or some form of alternate dispute resolution in which you represent one party, you are an advocate. It is your job to represent your client’s interests. But are your client’s interests best served by your moving quickly to become the standard-bearer of their cause as they define it? Maybe not.
Mental Health Professionals Underline the Importance of the Other Side of the Story
As mental health professionals, we are trained to be benign skeptics. Like you, we listen carefully; we convey concern. And we do care. However, since we are NOT advocates, while we empathize with our clients’ experience, we do not always convey the idea that we buy their story hook, line and sinker. Why? Because not only do we know the obvious—that there is another side—but because we know that it is only by coming to understand the perspective of the other in our client’s life that we can understand, and help, our client.
By way of illustration, let’s return to Mrs. X. What if, as you listened to her story, you asked yourself: “How would Mr. X tell the same story?” What if, instead of leading with an aggressive custody proposal, you had called Mr. X’s attorney and asked some questions? You’d have learned that while Mr. X had worked a gazillion hours per week, he had done so in order to provide the large home and lavish lifestyle that his wife claimed she needed to compensate for the pain of growing up in an impoverished family. You’d also have learned that Mr. X had felt excluded from the unit created by Mrs. X and her children. He’d wanted to be more involved, but she (perhaps because her identity was wrapped up in her ideas about herself as a mother) had shut him out. He’d reluctantly asked for the divorce after two years of failed marriage counselling. What if Mr. X’s attorney conveyed Mr. X’s acknowledgement that while Mr. X wanted to spend substantial time with his children, he knew that the children would have initial difficulty with long separations from their mother. What if he admitted to having a lot to learn before he’d be an effective day to day parent?
Why Might it be Important to See Things From Mr. X’s Perspective?
We all know that our client’s “side” of the story is only one of many. Not only does it shift and change shape with our own client’s mood, but it represents only part of the family narrative. We are guessing that one of the greatest challenges you face as a family law attorney is that of balancing your role as an advocate with your knowledge of the realistic limits of the law, and your sense of what might be in a child’s best interest. In other words: helping your client to get what he or she wants while accepting what he or she can’t have. And, hopefully, doing all of this while keeping them out of the blood bath of a nasty negotiation or, worse, litigation.
A three-dimensional, balanced view of the true marital dynamic—an understanding that is informed by an understanding of both your client and their spouse—is one of your most useful tools. Marital dynamics do not stop when one spouse moves out. The pattern of relating that the couple lived with throughout their relationship will continue throughout the divorce. You can count on that. So beginning to think in terms of the couple dynamic, not just in terms of your own client’s perspective, is a skill worth honing.
Some benefits of Learning More About the Other Sides of the Story
- It allows you to help your client anticipate the needs/interests of their spouse – and thereby increases the chance of successful settlement
- It helps you to empathize with the “other side” so that you can avoid getting caught in counterproductive adversarial positions (and maintain better relationships with your opposing counsel!)
- It helps you to realistically assess the validity of your client’s claims so that you can strategize appropriately
- It helps you to remember that your client isn’t the victim and their spouse isn’t the villain, which in turn helps you to support your client in accepting a compromise agreement
Some tips for learning the other side of the story:
- Listen with a caring but skeptical ear
- Ask yourself: “What might the other spouse say if he/she were here?”
- Begin the process with an exploratory call to the other attorney, rather than a demanding letter or an aggressive proposal
- As yourself how you would advocate most effectively for the other client if that person had walked into your office rather than their spouse
- Learn more about couple dynamics; the divorcing spouse you are representing brings his or her marital dynamic into the case every time.*
The more you learn about why couples come together initially, and why they fall apart, the more easily you will begin to intuit the other side of the story. The broadened perspective will increase your capacity to think creatively with your clients, and – we would argue – increase your overall effectiveness as a family law attorney.
Lisa Herrick Ph.D. and Kate Scharff, MSW have been working as psychotherapists, mediators, divorce specialists, and parent coordinators for over 20 years, and as Collaborative Divorce professionals since 2006. They are the co-authors of “Navigating Emotional Currents in Collaborative Divorce; A Guide to Enlightened Team Practice,” (ABA 2010). Dr. Herrick and Ms. Scharff are co-founders and Principals of The Collaborative Practice Center of Greater Washington. For more information about their practices, writings, and teaching and speaking engagements, please visit their websites: www.lisaherrick.com and www.katescharff.com
Best Practices for Family LawyersPublished on:
Elaine- – such a great point. It’s often very difficult to help clients to understand that you are not serving their interests by simply supporting them in every idea, wish, and feeling. A healthier client may “get it” when you explain to them that understanding the other side of the story will help you to find mutually agreeable solutions (which is almost always better than litigating). They may also accept your saying that their desired outcome is unrealistic, so that when you challenge them to consider new options you are simply helping to manage their expectations and get the outcome closest to their goals. A less healthy client may become furious when you don’t simply toe the line, and may accuse you of not understanding, not caring, or not being proactive on their behalf. As mental health professionals working in the area of separation and divorce, Lisa and I have faced these same challenges. If you feel like it, check out our book “Navigating Emotional Currents in Collaborative Divorce.” Even if you’re not a Collaborative practitioner, you may find some practical advice there– particularly in the chapter of the “The Rigidity/Flexibility Continuum.” All the stuff in there we learned the hard way!
Another great article from the Scharff / Herrick Duo that brings more light to the issue of “How do Collaborative trained Lawyers Litigate?”
Coming next?: “How do Collaboratively Trained Coaches/Financials/Parenting Specialists act in Litigation Cases?”
Great article. I find this same process of careful listening, healthy skeptisim, complete information gathering and acknowledging a person is heard very useful in my work as a college administrator. I listen intently but make it clear I am in an investigative mode and do not necessarily endorse or agree with what the person has argued. I do sometimes talk to parties several times in the attempt to form a complete picture. I do acknowledge that in theory certain things if true would “not” be good. After awhile most people come to respect the process though not all. I won’t be bullied by those who come to the table with the presumed entitlement to abuse others.
The article, very appropriately deals with a very sensitive issue that every lawyer must practice when dealing with their clients. Listening carefully to the clients helps you better assess the situation and gather complete information to understand the clients. As a Personal injury lawyer Seattle, we make it sure to be empathic and build up trust through listening to our client’s point of view. It gives us more confidence to better evaluate the situation and thus give better consultation .