THE H & G CASE

Analysis of a successful high conflict collaborative divorce

By: Brian Don Levy

Lawyer@collaborativeattorney.com

www.collaborativeattorney.com

THE HISTORY

When Manny first came to see me he was interviewing me as a litigation attorney for his divorce case. I explained to Manny that the most important choice he will have to make is choosing the process through which his divorce case would proceed. As a firm believer in the Collaborative Divorce Process, I explained to Manny why I thought he should consider the collaborative divorce process, as I routinely do with divorcing clients during their initial consultation.

Manny looked at me and said “I have been in a collaborative mediation with two of your colleagues, and after nine months my wife withdrew from the process and all of her commitments. Why should I trust the collaborative process now, given that history?” I thought quickly and came up with the following formula. I told Manny that in spite of the failure, I still believed that the process would serve him well. I suggested that this would be a different experience because we would build a more complete team of collaborative professionals. I also suggested that I would ask the team to implement a protocol of reducing each and every agreement to a Collaborative Stipulation & Order to be signed by the parties and submitted to the Court for a Judge’s signature, thus creating a safety net – if either party withdrew, there would be the underlying agreements that have become Court Orders, thus the failed history would not be repeated. Manny became enrolled in the process that I envisioned for him.

THE CONFLICT

The family consists of Manny, a successful and employed individual who works in the entertainment industry. Mildred, his wife, lacks trust in Manny because of Manny’s history of drug abuse. Manny lacks trust in Mildred due to her history of making agreements and refusing to honor them. Mildred believes that Manny is not worthy of being a father to their twins (ages 5) and can’t be trusted because of his history of serious drug use, and Manny believes that Mildred is smothering the children and won’t let go. Manny has been practicing sober living for approximately 18 months and believes that as long as he is willing to evidence his sober living, he should not be kept away form his children.

THE TEAM

The team consisted of two lawyers, a neutral financial and three very strong coaches. We all relied on each other time and again and the channels of communications were constant and open. From beginning to end my electronic file contained nearly 1300 team e-mails. Manny & Mildred both had their respective coaches, and the children had a gifted child developmental specialist whom the team relied upon to keep the parents focused on their children to the greatest extent possible instead of the own individual agendas. The team worked diligently and often times conducted three way telephone conferences to handle impediments and roadblocks put down by the parties. The very first time that Mildred made an agreement on visitation and then refused to honor it, a series of teleconferences ensued late on a Friday afternoon, resulting in an honoring of the agreement and Manny’s first overnight with his children.

TEAM PROTOCOLS

Three team protocols were created and adhered to. First, Manny agreed that given his history, he had the burden of evidencing his sober living as a condition precedent to being an involved parent to his twin children. Manny submitted random urine tests twice a week to his coach, who then faxed the results to the team members. The second protocol was that every agreement would be and was reduced to a collaborative stipulation and order that was filed with the Court, and became an enforceable court order. The Third team protocol was that the professional team exchanged their personal cell phone numbers and committed to be available to the team members as needed and dictated by the family problems as they occurred.

THE FIRST CRISIS

After several months of negative random drug tests, Manny tested positive for opiates! When confronted by his coach, he broke down and cried; swearing that he had not fallen and had not used any drugs. What to do? Manny’s Coach and lawyer, and Mildred’s Coach agreed that before reacting to the “dirty test” the possibility of a false positive had to be explored first. The urine test was re-submitted for additional testing, and Manny was asked to take a hair follicle test. The hair follicle test and the re-test of the urine test both concluded that Manny had in fact continued on his path of sober living, and the positive was a false positive. Eventually, Manny was moved from twice a week random urine tests to quarterly hair follicle tests, then to every 6 months.

THE SECOND CRISIS

Mildred fired her collaborative Lawyer, and Manny saw that she once again reneging on her commitment. As it turned out, Mildred replaced her collaborative lawyer with another collaborative lawyer, and I was able to point out to Manny that in so doing, she evidenced her commitment to the collaborative process. Confidence was rebuilt quickly, trust was re-enforced, and we proceeded forward.

THE VICTORY FOR THE CHILDREN

As Manny moved through the process of evidencing his sober living in an irrefutable manner, the team worked with Mildred in getting her comfortable in moving from Manny having very little contact with the twins to being a truly involved parent who enjoyed a substantially equal time share with the twins and lots of overnights. The children benefited from the more normal and less restricted contact with their father, and now enjoy having two parents and two homes to grow in.

THE VICTORY FOR THE PARTIES

Their divorce case is finished, and they take into life the skills that they learned through their collaborative coaches as well as their collaborative team.

THE VICTORY FOR THE PROCESS

The process which was originally described as failed succeeded in a significant way in that this very high conflict and contentious case was successful after the collaborative team was assembled, an accurate and detailed assessment was made, and a plan for success was carried out by all of the team members.

PRACTICE COMMENT

I have heard from other collaborative professionals that cases with chemical or alcohol dependency are not well suited for the collaborative process. While that may or may not be the case, this case demonstrates the belief that each case is different, and that the essential ingredient for a successful collaborative case is an initial in-depth assessment by the collaborative professional team as to what the family dynamics require and how to position the parties for success. My experience on this team has been invaluable in my journey as a collaborative lawyer, as well as serving as an awesome example of what we can do together!