Welcome to John Susko’s A Better Way to divorce podcast. John Susko is a Florida family law attorney whose practice is focused on collaborative divorce and mediation. And now here’s John Susko.
John:
This is John Susko, and I’m here with Pauline Tesler, who is a specialist in family law certified by the California Board of Legal Specialization since 1984, and she’s a fellow in the American Academy of Matrimonial Lawyers.
John:
After conducting a vigorous litigation practice I guess in the area of matrimonial law, she became a pioneer in developing and extending collaborative practice worldwide. Pauline co-founded the International Academy of Collaborative Professionals, that’s IACP, in the late ’90s and served as its first president. And she also co-founded this journal, The Collaborative Review.
John:
Something that I want to share a little bit about Pauline, she has the most interesting quotes on her titles. Here she says, “Peace cannot be kept by force. It can only be achieved by understanding,” attributed to Einstein and then, “Discourage litigation. Persuade neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of becoming a good person,” and that was by Lincoln and that’s who I hope to model my legal career after.
John:
Pauline, tell us how you migrated from litigation into collaborative. What was the aha moment?
Pauline:
Well, the aha moment came over a period of maybe a year to a year and a half. The last litigated … I guess it wasn’t the last case that I took in, but the last trial that I did was a horrendous high conflict custody trial with two very psychologically impaired clients. Mine was equally as bad as her husband. I prided myself on being a very successful custody litigator, which now I think of to my shame, but at the time I hadn’t noticed that the winners and the losers were equally unhappy.
Pauline:
Anyway, the way that that case caused my aha moment eventually is that it was so ugly that I ended up with a severe case of pneumonia and couldn’t actually conduct the trial because I was sick in bed, really sick. My husband, who’s my law partner and who swore he never get near family law … he’s a commercial litigator … he was my partner and he was stuck. The trial was about to start and he had to do it. And he just used all of his hardball litigator tactics and got a really good win, which I think destroyed the family.
Pauline:
But I, meanwhile, was recovering from pneumonia and realized that litigation had something to do with my compromised immune system and I started hunting for other ways that other cultures handle these very predictable human conflicts. And I studied for a while with a woman who … Her name is Angie Arrien and she called herself a transpersonal anthropologist. She’s very well-known out here in the Bay Area and elsewhere.
Pauline:
And she did a year of private sessions with me just exploring the wisdom traditions about conflict from other free industrial cultures, let’s say, and I studied [inaudible 00:03:53] death psychology, archetypal psychology, and everything I could get my hands on, and that really was what I think of as tilling the soil.
Pauline:
And it was in that context that I read a little journal report about this guy called Stu Webb. This was in 1994. He was trying out this new idea out there in Minnesota. And one of my Bay Area family law colleagues had gone to a conference where he did a little presentation and just did this little report of it in the newsletter, and I read that.
Pauline:
And the way I describe it is when I was a kid, I went to a demonstration at Massachusetts Institute of Technology designed to get kids interested in science. What they did was dropped just one more bit of sugar into a super saturated sugar solution. And that one more bit of sugar caused the whole thing to suddenly crystallize into this beautiful formation. And I think of that little newsletter article about Stu as being that last crystal that pulled it all together and I read it and I said, “Okay, now I see what I’m going to do. That should do it. That should take care of it. This is what I’m going to do for the rest of my life.”
John:
Let me ask you, what were you before you became a lawyer? I mean, what was the major that you were in?
Pauline:
I was an English major and I taught English. I taught English in high school and at the junior college level. And then I went to law school during the late ’60s because I was not brave enough to get arrested, but I discovered public interest law and I figured that if I could get a law degree, how amazing. I could file a piece of paper and the government would have to account for itself to me. I thought that was a miracle.
John:
How would you define collaborative? How would you talk to somebody about collaborative?
Pauline:
Well, those are kind of two different questions. The way that I would talk about it to a professional is not at all the way I would talk about it with a client. With the professionals, it’s about undoing professional identity and assumptions that we learned in law school about the nature of human conflict and human decision-making and bringing into the frame all of the 21st century exploding knowledge about the human brain and about the body mind continuum and bringing those dimensions into our work. And then there’s the how-to component, which is based around what we call the disqualification agreement, a binding agreement that the lawyers will never threaten to take things to court and will never go to court if the clients do decide to.
Pauline:
When I’m talking about it with a client, the first thing that I do … I’ll give a little plug for it, even though I don’t make any money for it. The second book that I wrote, which I wrote with my psychologist friend, Peggy Thompson, is a book that Harper Collins published called Collaborative Divorce. And it’s for clients and people in the community who aren’t divorced professionals. And I ask them to read that first because it explains in easy to understand detail what interdisciplinary team collaborative divorce looks like.
Pauline:
And what it is is a very structured … For clients, I explain it as a very structured process in which you get the lawyers working on what lawyers know how to do, mental health professionals working in a coaching model to help each client come into the negotiating room able to listen to one another and able to rise to the highest level of shared values about what’s going to happen to the family during and after the divorce and with a financial neutral to do a financial planning approach to support [inaudible 00:07:44] division of assets with the goal that the family comes out of the divorce process healthier than they came into it, which is of course exactly the opposite of what happens in court.
John:
Talk a little bit about what you believe is the modeling behavior going forward. How do you get that happening in California where you practice?
Pauline:
Well, it requires that the professionals on the team, first of all, have a lot of good training and a lot of good experience in simply how to do the process itself. Secondly, it requires that you have a practice community, a local practice group, where the professionals are going to be meeting one another on cases, meet together frequently, voluntarily, putting in the time to develop protocols and roadmaps for how they’re going to do it that everybody agrees is how all of them are going to do it so that when you come into the room with another lawyer, there aren’t any disagreements about what kind of process is being offered. Everybody’s on the same page and working together to make sure that that is what happens.
Pauline:
And the third thing that happens in the practice group and on cases is we spend a lot of energy building trust relationships with one another so that I know that you are not going to be the problem and you know that I’m not going to be the problem. We’re going to be the problem solvers, which is something that you can never assume about the lawyer for the other party in a traditional model. Lawyers mistrust one another deeply going into litigation and their only commitment is to get the biggest pile of the goodies possible for their own client, regardless of the collateral damage, which is substantial.
Pauline:
In a collaborative divorce process, because we’re making a commitment with our clients that the goal is that everybody come out of the divorce able to sustain a better life than they went in with at the end of the marriage, the way that we have to do that because people … There’s a saying that criminal lawyers see bad people at their best and divorce lawyers see good people at their worst. What you have is a family system coming apart. That’s a dysfunctional system and what it takes to help them do what we’re promising to offer is we need to be a highly functional system that does not get polarized, that does not become the alter ego for our client when our client is suddenly experiencing a dip down into the primordial, super reptilian emotions.
John:
You hit on something that I have discovered in our infancy. The lawyers aren’t … I mean, initially we got mental health people that they got tired of it because they were always separating the lawyers because the lawyers were at each other. I mean, they couldn’t give up their adversarialness. Are you saying that you need to get into smaller groups, getting a team together? Tell me about your initial goal or your initial efforts at getting the teams together.
Pauline:
Well, we’re talking about two different things. We’re talking about how a team comes together for a particular family to help them through a divorce. But when you’re talking about the behavior, the bad behavior of lawyers who have not shifted any of their identity or behavior, that’s different. We’re talking about developing professional competency and the ability to actually do this work. You’re describing people who lack both of those things. They lack the professional competency and they lack the ability to do the work.
Pauline:
After getting high quality training, which is the starting point, the next step really is to develop what we call a practice group. And these grow up spontaneously everywhere that we see collaborative work being done. A practice group is different from your statewide Florida Academy of Collaborative Professionals. It is local. It includes professionals from as broad a geographical reach as you can expect to see colleagues coming in on cases.
Pauline:
If in your community, that’s one county, then there would be a practice group in that county. If in your community, you’re seeing divorce cases that cover a three or four or five county area, then that’s how broad the sweep of your practice group would be. But it has to include the people that you’re going to expect to see on cases and it includes the people who are going to be on the website that your local practice group creates that the clients you go to to find out about how collaborative divorce is delivered in … Are you in the panhandle?
John:
Yeah, I’m in the panhandle.
Pauline:
You ae in the panhandle, so you’re going to have a practice group there, and you’re going to meet together. You’re going to look at all of the resources that the Florida Academy and IACP have to offer you and you’re going to have conversations about, what are your documents going to say? And everybody’s going to commit that, “These are the documents we’re going to use. This is what we’re going to give it to our clients. This is what we’re going to sign. This is what we’re going to file with the court, and it’s consistent and coherent.”
Pauline:
Secondly, you’re going to have meetings regularly that are aimed at enhancing trust and at building competency, raising the quality of the service delivery in your community. And the way you do that is both by bringing in people to train and by doing self-training and by doing case conferencing and by having social events where you break bread together, because those are the ways that you build trust that the other person is telling her clients the same thing that you’re telling your client, because you have to be able when your client is mistrustful to say, “I trust the other people on this team, including your husband’s lawyer, and this is why I trust him.”
John:
Again, I’m getting the education. Stu Webb talked to me first, and I’m hearing from you the same thing. What do you believe the COVID-19 and the process going forward? Are you inclined to have Zoom meetings for collaborative or not going forward?
Pauline:
Well, I am somewhere between an agnostic and an atheist on that. The courts for the most part are closed and their offices are closed. Either we’re shutting up our practices entirely or we’re doing Zoom representation. That’s the reality. But anybody who tries to tell me that they’re doing high quality work, I don’t believe it. I don’t believe I’m doing high quality work. I don’t think it can be done on Zoom, because you need to be physically present in the room in order to pick up the micro signals that are passing around the room and in order to be able to develop some kind of rapport with the other party and in order to be able to take your client out of the room and touch them on the shoulder, give them a hug. None of those things that help us actually move people from anger or grief or frustration back to the constructive ability to do this work, well, none of those resources are available to us.
Pauline:
I view with high skepticism anybody who says, “This is great. Isn’t this wonderful? We should keep doing this after the pandemic settles down, if it ever does.” I feel the same way about training. IACP is allowing basic trainings, so-called temporarily to be done online, and those are not high quality trainings. The trainers are high quality trainers. The content is fine, but you cannot transform somebody’s professional identity by staring at a screen. It can’t be done.
John:
Well, I attended David Hoffman’s program today on diversity and I cried.
Pauline:
That’s a different story. That’s a different story. We can have all kinds of profound experiences on Zoom, but those lawyers that you’re having trouble with, they are not going to change their stripes watching a screen where somebody tells them about a collaborative roadmap. It just isn’t going to happen. You have to be able to be in the room with them, notice that they’re sitting back with their hands folded resisting the content and stop the music and walk up to them and say, “What’s going on?” And that’s how you trigger an epiphany in somebody who’s experiencing the last gasps of resistance to something profoundly different. It will not happen in a Zoom meeting. I’m sorry.
John:
Tell me about your institute out there in San Francisco. Tell me what you are studying.
Pauline:
You’re talking about the Integrative Law Institute at Commonweal. This is a nonprofit program that is based within a larger umbrella organization called Commonweal. Commonweal’s an organization that describes itself as supporting programs that are committed to healing the planet in terms of the environment, in terms of health and in terms of social justice and law. We fit under that last part of the umbrella.
Pauline:
And I started this program because I’ve always been interested in bringing the understandings about conflict and potentialities for lawyers to do better work in conflict resolution beyond the family law world into the larger domain in the legal profession where lawyers are still working with interpersonal human conflicts. I’m not interested in commercial law especially. Some people think that they can bring collaborative practice into the commercial domain. I have yet to see a real collaborative case that involves a commercial dispute.
Pauline:
For example, landlord tenant disputes, neighbor disputes, elder law abuse issues, family succession problems. These are interpersonal disputes where when lawyers treat it like a fender bender, they are doing harm to family relationships, to important relationships that affect the quality of life of people. And they can benefit from learning what we’re learning about how you can actually cause a shift in the room that causes people to really hear one another at a heartfelt level.
Pauline:
I do not think after many years of people trying and of IACP devoting a lot of resources to it, I do not think that the way we accomplish that is by inviting people under our umbrella and asking them to join the collaborative practice movement, because the way we define collaborative practice and the way the uniform collaborative law act defines it starts with the disqualification of the lawyers from ever going to court. And for commercial law firms, no interest. Thank you very much, not interested.
Pauline:
That does not mean that they can’t learn profoundly different ways of working with their own clients and even with the other lawyer and the other party under certain circumstances. And if we can get them interested in that substance, the substance of what’s different about working in a transformative way with conflict, then maybe they might at some point become interested in swallowing the collaborative … what would we call it … taking a bite out of the collaborative apple, maybe.
Pauline:
But if we start there, we don’t get any takers. And I could talk for a while about all of the efforts that so many great lawyers have put over the past 20 years into trying to bridge that gap and I think there’s some good reasons why it hasn’t happened as an invitation to do collaborative practice as we know it.
Pauline:
With integrative law, they don’t have to swallow any bigger a piece than they want to. And I can invite them in with programs that don’t start by telling them that they have to transform themselves. That’s in fact the goal, but I don’t have to describe the programs that way. I can appeal to their intellectual and cognitive sides of their brain and that’s what gets them in the door.
Pauline:
The invitation, for example, to our flagship program is called Neuro-Literacy 101, Law and the Human Brain for Lawyers, Mediators, and Judicial Officers. The flyer that I put out said, “What if everything that you learned about conflict and dispute resolution was based on a demonstrably false 18th and 19th century understanding of how the human organism makes decisions and processes conflict? What if all of your colleagues know about this and you don’t? It’s not too late. The train is leaving the station, but you can still get on it.” I can fill a room that way.
Pauline:
If I put out a flyer that says, “How would you like to learn a whole new way of handling your next client’s dispute? Of course, you have to agree, never to go to court and you have to learn a whole new system of handling the case,” I don’t get anybody in the room that way. You get family lawyers because family lawyers eventually when we reach mid-career, we realize the harm that’s happening when a family goes into a courtroom. One of the best family law judges in the state of California once said, “Family court’s where they shoot the survivors.”
John:
I want to compliment you on your Conversations with Five Thought Leaders.
Pauline:
Oh, thanks.
John:
That was great. And the wholesale versus retail aspect of getting collaborative cases, if you could expound on that a little bit. Tell me a little bit about what you were trying to do there.
Pauline:
Well, that was in the moment. I’m not remembering exactly where I started saying that. I think what I wanted to do was instead of having each individual lawyer have to figure out how to bring the message about collaborative practice to each individual referral source in the community, that what I was trying to accomplish through those conversations was to ask people in some of the key professions where those vital referrals are being made. For example, people who go to a clergy person, to their local minister or priest, say that they’re having an unwelcomed divorce, “What do I do?”, how do we make it so that those people are being educated themselves before the client ever comes to them and they already understand how vital their role is in steering people to a peacemaking process rather than a throw fuel on the fire kind of process?
Pauline:
Here you are, for example, a wealth manager or a Buddhist priest or whoever you are. Who do we have to talk to in your profession so that we can take that message to the conferences and the journals and the other places where you and your colleagues learn that you’ve got a role to play here and that it’s socially and societally a very significant one?
John:
I was talking to Camille, Camille Milner, about what they put in their final judgments in Texas. And if anybody does not disclose things, they put a provision in that says that it goes to the other side. I was wondering, what does California do?
Pauline:
Well, we’ve got it easier in California because there’s a whole statutory scheme that applies to everybody, not just collaborative divorces. The first step of it is that we have mandatory financial disclosure declarations that have to be exchanged. In order to get a divorce in California, you have to exchange these declarations under penalty of perjury about all income expenses, assets, and debts, both within 30 or 60 days after filing the petition and then again before you can sign a settlement agreement or have a trial.
Pauline:
And then in addition to that, we have a statutory fiduciary duty between spouses … it’s the highest level of duty to the other party … until all of the property has been divided. This extends even after a divorce judgment, and the penalties for violation of that fiduciary duty are extreme and can involve essentially triple damages three times the value of what was hidden or misrepresented.
John:
Okay. That’s not the way it is in Florida. Florida, if you don’t find it before the final judgment, it’s over, which is sad.
Pauline:
I’m surprised that the legal profession … Well, I shouldn’t be surprised that the family law bar isn’t doing anything about that, but that’s a reflection on the family law bar as far as I’m concerned. They should be ashamed for not trying to advocate for legislative change about that. It’s a hide the ball gaming kind of approach, and most court systems, most judicial councils in the United States have pretty firmly turned away from hide the ball. They certainly have rules about hiding things in discovery. Why wouldn’t they, especially in a family context, create more stringent disclosure requirements? It boggles the mind that there would still be those [crosstalk 00:00:27:12].
John:
Let me share something with you. I went to the first ABA divorce mediation training by Gary Friedman and his group and I came back and I thought it was going to be the next Susko of Florida mediation. And I went down to the Academy of Matrimonial Attorneys and they spent 30 minutes on mediation.
Pauline:
Well, they are the caboose, I’m sorry to say. Anything new and they eventually will latch onto it, but they’ll be last.
John:
But again, they had five minutes on explaining it and 25 minutes on how to get the heck out. [crosstalk 00:27:42] And I just realized that I was up against the wall back then, back in the ’80s.
Pauline:
I bet you they were one of the organizations that had a workshop called how to win at mediation.
John:
They might have. But again, this was even before they get into mediation. You talk about aspirational good divorce in your book. How do you get that across to your clients?
Pauline:
It’s going to vary from person to person. And when I’m doing trainings about this, one of the key things in shifting how we do our work is to understand, first of all, that speed is not a virtue. It’s our enemy if we’re going to do good conflict resolution work. And this means we’ve got to spend a lot of time in that first and maybe second meeting with our client educating them about things they don’t know and we do, which is to say if you go through the litigation door, these are the risks, and these are the benefits. These are the pitfalls. If you go through the mediation door, you can reasonably expect this, but not this. If you go through the collaborative door, you could expect this, but not this.
Pauline:
And the way that I teach people to do it is not as an information dump, which unfortunately I think is how people before they learn not to tend to do that. They tend to talk about themselves. When I’m a mediator, I do this. When I’m a collaborative lawyer, I do that. What we need to do … excuse me … what we need to do is develop techniques for drawing out the client’s story. Mostly what we learn about as lawyers is how to stop the client from talking so that we can get down to what we think is important, which is often as not is about the utility bill or the tax return, which is not important to our clients when they come into us for that first meeting.
Pauline:
What we need to be doing is finding out when they wake up at three in the morning, what do they wake up worrying about? What frightens them? And what, when they dare to be optimistic, what tiny little hope is trying to grow about how this could go and what could be maybe even not so bad about starting fresh after the divorce?
Pauline:
You take each one of those hopes and fears and you invite the client into what we know and they don’t, which is okay, so you have this hope for your children. Here’s what happens if you take that kind of an aspiration into a divorce court. Here’s what happens in the type of mediation that’s basically just a settlement conference, but without a judge. Here’s what happens if you have a full interdisciplinary team with a child specialist on it or if the client comes in and tells you, “I can’t get a word in edgewise. She won’t listen to a word I say.”
Pauline:
Again, you use the lens of what you know will happen in court. The client imagines that they’re going to be able to go in and tell the judge everything and finally, they’ll get the gold star for being the good person. We know that they’ll never get to say a word probably, and only very contained if they do. We explain what a coach can offer by way of facilitation of communication and good listening skills. A client who is concerned about that is going to say, “I really want that.”
Pauline:
We can ask them questions like, “What do you want your child to think about how you conducted yourself during the divorce process? If you knew that your child was going to watch a video tape of the entire proceeding, what kind of person do you want them to see in your shoes, in your seat and how might you get there? What would you want me to do to encourage you and assist you to be that person?” That’s one way we go about it.
Pauline:
Another way, an additional way that we go about it once we’re actually launched into collaboration is we begin with a mission statement, a statement of what the client’s highest hopes are, not specific outcomes, but highest hopes in terms of values and qualities would be if this process goes as well as they allow themselves to dare hope, and we write those things down and when things fall from that lofty plane, we remind them and we help them to get back there.
John:
Pauline, I want to thank you for all … I mean, I could keep this going forever, but it’s only a half an hour program and we’ve used up the half an hour. And again, I’m learning more from this process than all my clients are going to learn, but I thank you for all your teaching and [crosstalk 00:33:04].
Pauline:
It’s been a pleasure to talk with you.
Announcer:
This has been John Susko’s A Better Way to Divorce podcast. John Susko is a Florida family law attorney. If you’d like to learn more about collaborative divorce or mediation, go to Susko-Collab-Med.com, or click on the link in the show notes below.