Monthly Archives: March 2016

The Lawyer as Peacemaker

“It is not enough to win a war; it is more important to organize the peace.”
― Aristotle

9787f890e1d1f8abc8c09826b868568dInvested in the grievance stories magnified by their lawyers, family law clients often become repeat customers. Whether through initial actions, modifications or contempt proceedings, family law practice can be steady business for the lawyer, but often leaves festering wounds for the families we represent.

Hard fought family cases can also hurt family lawyers. Our suffering clients call us non stop, email us long diatribes, even show up at our office unannounced and agitated. Fueling the fire by delivering scathing interrogatories or through biting cross-examination can wear on an advocate’s mind, body and spirit.

In response, family lawyers are starting to expand their practices to focus on peacemaking. What makes a lawyer a peacemaker?

1. They practice law with connection and authenticity. Peacemakers don’t think it makes them less of a lawyer because they refuse to heap more hurt on hurting people, especially when children are involved. They genuinely care about the well being of their clients, their colleagues and themselves and believe that peaceful problem solving approaches are healthier for everyone.

2. They use proactive early intervention. Peacemakers recognize that the parties will still have to work together even after the legal intervention, so they set a tone of healing instead of aggression from the outset of a case. Whether through mediation, collaborative law, or simply meeting with the other lawyer to discuss the case, peacemakers agree to customize a strategy that works for both clients. They look for ways to streamline the legal process instead of letting it be driven only by court deadlines.

3. They use an interdisciplinary approach to conflict. Family lawyers are expected to be lawyer, counselor, financial advisor, parenting coach, communication expert, real estate analyzer and retirement guru. Peacemakers recognize the best use of the lawyers’ time is for legal advice, drafting and interfacing with the judge. They involve specialists including therapists, child development experts, financial advisors, realtors, and social workers to assist in developing a comprehensive plan for the family. Adding these experts mean the family has a highly specialized team often providing lower overall cost for comprehensive decision making. Lawyers focus on what they do best, and minimize the stress of trying to solve all the client’s problems themselves.

4. They encourage clients to “do the right thing.” Peacemakers don’t consider it a “win” to have someone pay as little child support as possible, if it means children aren’t financially supported at the other parent’s house. They don’t automatically fight to minimize a healthy and loving parent’s time with their children, at the request of a heartbroken client. These lawyers use words like “healing” and “forgiveness” and may set up infrastructures to improve trust and teamwork between parents. They help clients write a new forward focused story of life transformation that identifies the client as the hero, not the victim of the story.

5. They model emotional intelligence. Active listening, compassion and empathy are key skills used by peacemaking lawyers. “Patience is the greatest attribute of a peacemaker,” says Dick Calkins, a longtime advocate of peacemaking law. These lawyers don’t thrive on depositions with blistering accusatory questions so their clients can see their lawyer hurt their partner. Instead, they work together respectfully and cooperatively, modeling behavior families will need in order to heal. That may include producing documents voluntarily upon request and using calm reasoned discussion instead of threats.

6. They take the long view and encourage clients to do the same. Author of the ABA bestselling book “Lawyers as Peacemakers” J. Kim Wright puts it this way: “The upheaval of divorce can be very emotional and uncomfortable. It is easy to succumb to the emotions of the moment and strike out, do some damage, hurt you because you hurt me. Reacting provides short-term satisfaction and guarantees long-term conflict.

Peacemaking focuses on the long view, aligning with long-term values and goals. What relationship do these parents want to have in five, ten, twenty years? Who goes to the first day of school? Who will celebrate the team championship with your daughter? Will you dance at your son’s wedding or boycott because your ex will be there? The long view isn’t easy, but it is the path that focuses on the well-being of your child, not the emotions of the moment.”

7. They are creative in their approach to conflict. Each case is viewed as a unique set of circumstances requiring a customized approach of creative problem solving. Lawyers are creative people, but in traditional practice they aren’t encouraged to “think outside the box.” Peacemakers unleash creative thinking without feeling intimidated in putting forth a unique idea that isn’t borrowed from the standard stipulation template.

Often, the biggest impediment for peacemaking lawyers is the other lawyer. If opposing counsel makes aggressive moves or promotes themes of “fight to win,” or “let’s let the judge decide,” it frustrates peacemaking opportunities. Being a peacemaker doesn’t mean you sing kum-by-ah and get eaten alive in litigation. It means you see the peacemaking approach as a higher calling because it results in much healthier outcomes and is more satisfying to your clients and your own soul.

A baby lawyer fully trained in peacemaking skills recently told me, “I hope for the day when a client calls asking to destroy the other side in litigation and a lawyer says, “I’m sorry, I don’t engage in that type of law, it’s not healthy for families.”

And then, they call the next person on the list and that lawyer says, “I’m sorry I don’t engage in that type of law it’s not healthy for families.” And then each lawyer down the list says the same thing so that clients understand that peacemaking and healing families is what it means to be a family lawyer.”

I may not see that total shift in the practice of family law during my lifetime. But I truly believe he will.

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Speaking the Truth, in Love

origWhoever rebukes a person will in the end gain favor rather than one who has a flattering tongue.-Proverbs 28:23

As an attorney, my days are filled with difficult conversations. I may deliver painful news to people involving their legal matter, or speak firmly with another lawyer as I advocate for my client. Recently, I had  to have difficult conversations with three different people who had  let me down or hurt me.

The approach I try to take  in all these circumstances is to “speak the truth in love.” That  means speaking directly but with a clear motive of trying to help the person receiving the message to understand something,  and not to punish, condemn or play victim.

Failure to initiate difficult conversations leaves us feeling disappointed or resentful and keeps us from being authentic and emotionally healthy. Avoiding these conversations may instead result in passive aggressive behavior or whispering our hurts to friends leading to gossip, triangulation of relationships, and fuel for our hurt.

Here’s what I’ve learned about initiating difficult conversations:

  1. Operate from a clear head not an emotional tsunami. Emotions are a gift, but letting them drive the moment leads to disaster. Initiate tough conversations when you are well rested, calm and emotionally even. This usually requires a reasonable “pause” between whatever has occurred and the time you choose to discuss it.
  1. State what went wrong with clarity. Using “I” statements can be helpful: “I was hurt when you weren’t there for me when I needed you,” or “I got overwhelmed when I had to step in after you didn’t follow through on your commitment.” Maybe even, “I have received complaints from clients/coworkers/teammates about your work.” If your communication begins with an email, don’t turn it into a long dissertation of drama. Use succinct bullet points and keep the tone businesslike. Having an in-person discussion is best.
  1. Know your goal. Be clear on what you need to remedy the situation. You may introduce the solution by saying “Here’s what I’ d like to see happen moving forward.” Another solution might be to offer to work together to remedy the problem, troubleshoot issues or even set a time to talk in more detail.  In most instances the goal will also be to preserve or  strengthen the relationship.
  1. Stay courageous in speaking your truth despite the response you get. If the person becomes argumentative, doesn’t listen or tries to turn the conversation back on you, stay firmly in your truth. Don’t cower under, say “never mind” or otherwise retreat until the issue is fully “aired out.” Your heart may be pounding but it’s critical to stay in the discussion in a healthy way.
  1. Keep calm. People aren’t used to facing conflict square in the eye. They are more familiar with passive aggressive approaches, or cryptic accusations on Facebook. It’s easy to criticize behind a keyboard. Talking on the phone or in person can trigger anything from fidgeting to wild histrionics.  Stay calm and focused while delivering your comments with dignity and respect.

Here’s what I recommend if someone “speaks the truth in love” to you:

  1. Listen closely. A tough conversation might come out of the blue at an unexpected time. If it does, tune in as quickly as you can to be able to hear what is being said. That may be difficult to do if you feel a strong emotional reaction at the outset of the conversation.

2.  Validate feelings before you respond. “It sounds like you are  really disappointed, I  understand how you might feel that way,” or a similar statement, lets the initiator know that you “get it.” Their feelings are valid for them. Whether their position is correct is another story. Pivoting into defensiveness or attack, or telling them they should not feel the way they feel, gets you nowhere and diminishes your credibility.

  1. Don’t shut down, become angry or defensive. Because most of us have not been exposed to healthy direct conversations, we can tend to think it’s a “fight” leading us to get into “attack” mode.  The minute you take the content personally, you have lost the opportunity for growth and clarity. Your personal hurts can be triggered, creating insight for you on unhealed wounds that could use further work later. By focusing on the problem and not the people you will avoid a poor response.
  1. Let the initiator know you understand, and only then, explain your perspective. Giving your side of things out of the gate minimizes your effectiveness. State the problem as you have heard it before you begin to describe things from your point of view. Once it’s your turn, breathe throughout your explanation and speak as slowly as possible so that you can be clearly understood.
  1. Apologies are magical if they are sincere. An apology can be critical in many circumstances. You may feel you did nothing wrong, but if your action or inaction let someone down even acknowledgement of that fact is powerful. “I am so sorry my actions upset you; our friendship is important to me,” or “I apologize for misunderstanding the work assignment; I didn’t mean to let down the team.”
  1. Investigate how to move forward. Asking how to repair a situation is perhaps the most critical reaction to a difficult conversation.  The simple question, “How can I make it right?” can open the door to great resolutions and healing. Only one of the three people  took this critical step in my situations.

Speaking the truth in love can be challenging, but it  provides growth for those who aspire to live with authenticity and courage.

The Poetry of Practice- Guest Blog

John Hardy is a recent graduate of Drake University Law School, and he just finished taking the Iowa Bar Examination.  He is joining Stamatelos & Tollakson once admitted to the bar. This is his first blog, and we are honored to have a lawyer of his caliber in our firm. Welcome John!

 

JEH Portrait
A lawyer is a poet. Language is the medium of the law, and word choice matters. It matters when legislators draft the law, it matters in front of a factfinder, and it matters when a lawyer is counseling a client. Legal writing has a tradition and history, just like poetry, with technical formal requirements and stylistic conventions. A good attorney, like a good poet, is a master of the language and knows what to say and what not to say. But linguistics are only part of the job. As with poetry, being an excellent attorney also requires a deep understanding of the human condition. A good lawyer has a focused mind and an open heart, and when the two work in tandem, the practice can be a work of art.

The Human Element

The human element is the intangible needs of the parties to a legal matter and other people who are affected by it. For the most part, clients call on a lawyer when their lives are in crisis, sometimes they may even be at their rock-bottom. In order to truly serve their clients, lawyers must recognize the emotional and relational needs of their client, which means they must look beyond the facts and the law. Clients may be unable to wholly engage in the process or articulate their ultimate goals until they believe that their lawyer has invested the time and attention required to know who they are, what they’re dealing with, and, sometimes, how they are feeling. The best lawyers know that some fights are not worth fighting, even if they are winnable. A client may prefer to move on with their life and save their money.

Nuts and Bolts

It goes without saying that a successful attorney will cross every “t.” If a statute of limitations runs or the attorney fails to preserve an error, it will be of little solace that the attorney is a good listener. The primary function of the attorney is often to serve as the voice of the client within the system. In this role, attorneys’ primary function is to know the law and play by the rules on behalf of their clients. When people need a professional shoulder to cry on, they hire a therapist, not a lawyer. Of course, the lawyer may end up wearing both hats, but there is no substitute for diligent attention to the legal details. If the lawyer is an architect, designing solutions for the client, the legal nuts and bolts are the bedrock and foundation. Empathy is the interior design. If the house collapses, instantly the color scheme does not matter. Solid legal work sets the table for the client to thrive in the future.

The Poetry of Practice

The work of the best lawyers combines diligent legal work with a genuine concern for the well-being of the client. Here, everyone’s needs are met. Even the best lawyers with the best arguments can lose a case, or fall short of their client’s desired outcome. In a poetic practice, a skillful lawyer weaves together high-quality legal work, attention to the human element of the matter, and the lawyer’s own personal touch. Different attorneys can have vastly different life experiences, and their undergraduate studies can cover the spectrum from history and politics to music, art, and religion. Good lawyers draw upon their whole life experience to relate with the client as a human, and provide customized legal services to their client with wisdom.

Clients may come to the initial consultation thinking that they want to take the other party to the cleaners. The best lawyers will dig around underneath that to find out if the client understands the implications of that position, including the budget, and whether the client really wants that. Clients may have been coached by friends, family members, or anyone else, and they may have lost sight of what they really want. In a divorce with kids, for example, they may believe they want the house and six nights a week with the kids. But, in reality, maybe the mortgage payment is not affordable once the client is flying solo, and the spouse is a great parent. Maybe the client truly wants the kids to have a great relationship with both parents, and it isn’t worth fighting to reduce the spouse’s time.

Good lawyers can draw from their own experience, both as an individual and as an attorney who has been down the road before with other clients. Good lawyers can help a client to zoom out and take a holistic view of their situation and their family. Maybe the health and well-being of their children depends on having good access to both parents. And maybe there is enough money to go around and set up both parties for success, post-divorce. And maybe the long-term well-being of the children depends on seeing their parents setting a good example of mature, compassionate conflict resolution that the children can follow as they grow up.

These thoughts were inspired by a recent presentation to the Compassionate Lawyer Society at Drake University Law School by District Associate Judge Colin Witt. He opened with the reading of a poem: The House by the Side of the Road by Sam Walter Foss. The poem itself was the touchstone for concepts within his presentation, but also the choice to open with a poem, at all, served as a meaningful glimpse into who Judge Witt is, as a person. He emphasized the importance of focusing on human element in his role on the bench. This can serve as a reminder to the practicing attorney that providing excellent service to the client requires a keen understanding of the human condition. This, in turn, requires intentional and zealous self-care, so that the attorney is well-rested, healthy, and available to fully commit to listening to the client and advising and advocating for the client with integrity.

I Still Choose Happiness

1090786_52658058Here is my very first blog post, written in 2012.  Today it is more true than ever.

If you ask my three young adult children to summarize my motherly advice they would give you three words: “make good choices.” I could have easily dispensed other advice.“Don’t do drugs,” “Study hard,” “Eat your vegetables.” Instead, I concluded “make good choices” covered everything, and I made it my constant theme throughout their lives.

As they grew up, there were many opportunities to discuss choices with my two daughters and my son. There were also many opportunities to admit my own choices, good and bad, as I lived out the consequences of those choices right in front of their eyes.

The most important advice I can give to those involved with divorce is similar but more succinct: choose happiness.

I was divorced from my children’s father after 18 years of marriage. I entered into a second marriage but due to a series of devastating events, after only two years that second marriage also ended in divorce. I was so grief stricken that I could barely function. There were days I just chose to stay in bed. During that time, a friend called. “When your divorce is over, you’re going to SOAR,” she said to me.

SOAR? I was barely upright. But something in her words resonated. I WANTED to soar. I wanted to heal. Most importantly I wanted to be happy.

Through my own healing journey, and watching the thousands of people I have worked with in court and mediation, I have concluded that instead of being a victim, focusing on the sadness, and anger, You must CHOOSE happiness.

Even though I was laden with grief, I started to look up. I focused on the birds flying, flapping their wings over the lake near my home. Often there was only one bird in the sky all by itself, and I jokingly called it my spirit guide. I set my sights on soaring in happiness and used the birds as my guides.

My counselor told me “fake it till you make it.” I began to smile, laugh, speak positively about life. I took up salsa dancing. I was still in deep grief, shock even, that I was divorced. Yet I approached others with a positive, happy attitude. Consistently, I decided to choose happiness, to watch the birds, and to open my heart to life.

In his book The Untethered Soul, author Michael A. Singer says the key to staying happy is to understand your inner energies. “If you look inside, you will see that when you’re happy, your heart feels open and the energy rushes up inside you. When you aren’t happy your heart feels closed and no energy comes up inside. So to stay happy, just don’t close your heart. No matter what happens, even if your wife leaves you or your husband dies, you don’t close.”

I once mediated a case where a father fled the United States after he divorced his children’s mother, leaving her unemployed, with four children to raise and $17 in the bank. He was gone 14 years. The mother told me that she had literally lain crying on the floor for days while her young children watched her. Suddenly it dawned on her that she had a choice. She could choose to be a victim, or she could choose happiness. She picked herself up off the floor, went out and got a job, took classes to refresh her teaching credential and ultimately became a teacher during the day and a sales clerk after hours. It was painstaking and slow, but she rebuilt her life.

The mediation was for the father’s failure to pay child support while he was out of the country. At one point in the mediation the two parties and I met together without lawyers in the room and the husband asked the wife “How did you manage after I left?” The wife told him, “I chose to be happy.” The wife looked at peace, very attractive and calm. She also said that as a result of choosing happiness, she was able to find forgiveness for her husband. Conversely, the husband who ran from his life circumstances was suffering with various physical maladies, looked older than his biological age and spoke from a place of regret and sadness.

Her success because of her choice is not isolated. Recently I received a call from another former client. When we spoke, she was teary and confided that since I’d seen her, her second marriage had collapsed after her second husband admitted an affair with a coworker. She was devastated.

“I know you are hurting, but I promise you, if you choose happiness, you will SOAR,” I told her.

Some months after our conversation, I received a letter from the woman. It read, in part:

Dear Kim,

Thank you for sharing your experiences with me. As crazy as it sounds, our phone conversation changed my life in an instant. I was in a pretty dark hole and trying to deal with pain, unanswered questions and figuring out how to raise my kids when I wasn’t in a good frame of mind. You said some key things to me. The first was that I would experience great happiness and great joy like I had never felt. I made a decision that if I was going to feel those things, why wouldn’t I open my heart now instead of waiting until I healed, which might not happen if I didn’t move it forward. It was an instant mind shift on my part. I have such inner peace and calm. I see my kids and my friends in a whole new light. I take it all in. I am not living to please my husband. The more I gave, the more he took. It wasn’t pretty for anyone. I am living purposely. And I’m laughing….a lot!

The formula is not as difficult as it seems. According to Singer, “You have to stay conscious, centered and committed at all times. You will have to stay one- pointed on your commitment to remain open and receptive to life. But nobody said that you can’t do this.”

And, as my counselor said, “fake it till you make it.”

What does Singer describe as proof the process is working? “ If you remain open enough, waves of uplifting energy will fill your heart.”

Eight years post divorce, my children tease me about my affinity for watching birds, particularly when there is one that seems to be the only one in the sky for miles. “There’s mom’s spirit guide,” they laugh. To this day a lone bird in the sky symbolizes a choice I made at my lowest point: I chose to soar.

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