Bringing the Magic
I had a case in which I was retained, not for a collaborative matter, but for litigation. (Back then, I still had the reputation for being “an aggressive family law trial attorney.”) The wife was a veterinarian who helps pet parents let their loved ones pass from this world, in easy transitions for both themselves and their companions.
She’d heard about my efforts to change the way the world gets divorced but was in the middle of a highly contested divorce. Her husband had his trial lawyer; she had her trial lawyer. And her husband was a practicing trial attorney.
They Were Not Collaborative
They were scheduled for their third mediation. They were not getting along. Litigation had been dragging on for over two years. And they had two small children who were stuck in the middle.
So we sat… and we talked for quite some time. Ultimately, she asked, “Will you come to mediation with me?”
And I responded, “I’m happy to do that if your trial attorney is comfortable with me there.”
Then I reached out to the opposing lawyer, whom I knew. I inquired, “This woman has asked me to attend your mediation. Are you okay with that?”
I Advised Her To Begin With An Apology
So, I showed up. I had no clue what would happen. I had said to this woman, during our heart-to-heart, “You know, it sounds like maybe an apology might be an order.”
But I had just thrown it out there. I had no idea how it had landed.
We began the mediation. We were at one of those big offices: lots of hard tile, cold marble, sharp corners, white surfaces, big conference room table, a/c on full blast. The mediator was way down at one end of the massive table; the financial expert (a collaboratively- trained neutral) was way over at the other end.
The wife and her two lawyers (the trial attorney and me) sat on one side. We faced our “opponents,” two lawyers, both her husband and his attorney.
My client started to say something but they both interrupted. Before they could get far, I interjected, “No, hang on one second, sorry to interrupt, but I think you want to hear what she has to say.” I could feel my pulse beating hard and fast in anticipation.
She had clasped her hands in front of her, with her forearms resting on the table. She drew a deep centering breath. And then, speaking from her heart, she apologized. “You know, this was my fault. I cheated during our marriage, more than once. It took me a while to understand that I just wanted out and that I didn’t know ‘the right way’ to say that. So, I just cheated. It was the coward’s away out and for all of that, I apologize to you. I should have been open and honest about how I was feeling. And I was too afraid. I am so sorry I did that to you. You did not deserve it. I hope that you can forgive me.”
His Reaction Was Like Watching Television
Then she thanked him. “I can’t tell you how much I appreciate the years you put into our life together, the insights you offered me in growing my practice. I wouldn’t be who I am if you had not.
“And for our wonderful, very special children. They wouldn’t even exist but for you.”
Watching his reaction was like watching television…. Understanding (”Oh!”), sympathy (“Can we fix this? Can I fix this? How can I help?”), sorrow (“What did I do to provoke this? I’m so sorry!”), grief (“Wait, is this really over? But that can’t be!”), and also tenderness (“But I love you”) all chased across his face.
He began to respond, but she put her hand up like a traffic cop. “Stop, stop.”
Well, of course, he was taken aback. But she was so focused on getting her apology accomplished that she couldn’t hear him.
They Heard Each Other For The First Time In Years
So I placed my hand on her forearm, and said, “You said what you needed to say. Now let him say what he needs to say.”
I was surprised by her response. “But he never listens to me.”
“But he did. He heard you. I saw him hear you. And now it’s his turn.”
I don’t recall his response, but I do recall it was from his heart. And I saw that that was a change for the two of them, both speaking from their hearts in that room. The mediator, the financial professional, and both of their trial attorneys listened and watched, respectfully observing.
The two of them talked to each other and heard each other. We were there for three hours, and they settled their divorce then and there, in that mediation.
And there’s been no post-judgment litigation.
Her husband has referred me three divorces since then. My client herself has referred me both a divorce and a paternity matter.
Not all of my clients need a full-on collaborative participation agreement. I do a lot of “courtless” work. Mediations. Drafting agreements. Negotiations, with and without another lawyer. “Let’s just sit down and talk it out. We’ll figure it out.” So, we do all of that. But once you see the magic in collaboration, you can bring that magic into any divorce process.
Even, as here, into the litigation process.
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About this week’s author, Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.