John A. Fiske, The Daily Record Newswire
What is the best question a divorce attorney can ask her client in their first meeting?
It is this: "What kind of relationship do you want to have with your ex-spouse after the divorce?"
Here are three reasons why I believe that question is the most important one to ask:
First, it talks about the future. The great gift of no-fault divorce is the elimination of blame and fault. The law basically no longer cares who did what to whom. The question is, "What are you going to do now?" More specifically, "How will you raise your children, share your incomes, pay for health insurance, divide your property, and plan for your eventual retirement?"
Those questions are the important ones, and the lawyer is in a great position to guide the client forward - a challenging task when the client wants to tell the story of the marriage that includes all the bad things that happened in the past.
(A colleague told me that when he got divorced he went to the one and only Monroe Inker, who told him to write the story of his marriage. He stayed up for 24 hours writing his story, and it was the best thing that happened to him in his divorce.)
The good lawyer listens, asks open-ended questions, and listens some more. "Why?" is also a beautiful query, so easy to ask with a genuine sense of curiosity, but if you ask it, make sure the next voice you hear is not your own. What I hear from my mediating clients continues to surprise me, even after 36 years of asking.
Second, the question focuses on what the client wants and forces him to think. The more the client knows what he wants, the more power he has. The lawyer empowers the client by helping him to figure out what he wants (which is often the most elusive question).
The struggle the husband or the wife in a divorce may be having is not with the spouse but with what Morton Deutsch calls the "intrapsychic conflict" with himself ("The Resolution of Conflict," Yale University Press (1973) p. 33).
"What is most important to me?" It is one of the biggest challenges of divorce to answer that question, and the answer is key to the future.
I tell my clients the tale of the mediating wife who could not decide if she wanted to stay in the marital home, and her dilemma still haunts many of my mediations: "I love the house, but it is an albatross around my neck." She never could figure out what she wanted, and after three meetings we agreed mediation was no longer of use to them.
The divorce process should be guided by the client.
Third, the client's answer should define every action taken by the lawyer in the divorce process. The answers will range widely. Many parents want to maintain a civil relationship for the sake of the children or otherwise. On the other hand, the couple is getting a divorce: They may want nothing more to do with each other, especially if they have no children, or cats.
You may have a spouse whose answer is so distasteful that you may not want him as a client; it helps to find that out from the get-go. In any case, his answer speaks to one of the first questions in a divorce, which is what kind of process to follow. The lawyer should explain alternative methods of dispute resolution, including mediation, arbitration, conciliation, and parent coordinators or special programs.
For example, if the client says she wants to maintain a civil relationship with her ex-spouse for the sake of the children, I believe the lawyer should recommend mediation as the process designed to promote cooperation between parents, because so much evidence proves children of divorce thrive when they see their parents treating each other civilly. Mediating parents are given a place to talk, an opportunity for which they usually are very grateful.
On the other hand, the client who wants to hurt his spouse may insist that service of the divorce complaint and summons be made by a burly constable, by surprise, and in a public place such as at work. Then they are off to the races.
Peter Drucker wrote voluminously about management by objectives, or MBO, defining common goals in the beginning and using those goals to define strategies and behavior to reach them ("Five Most Important Questions," John Wiley & Sons (2015)). The lawyer who asks her client, "What kind of relationship do you want to have with your ex-spouse after the divorce?" and hears the answer can follow basic management techniques in the ensuing process, constantly checking with her client to be sure the actions they are taking are most conducive to the desired post-divorce relationship. The lawyer will generally find the experience rewarding and the vast majority of her clients grateful.
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John A. Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a law firm in Cambridge, Massachusetts, concentrating in family law and mediation.
Published: Thu, May 19, 2016
