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Creative Solutions to Avoid Conflict in Divorce

In this episode of the Jennifer Hargrave Show, Jennifer’s special guest is Board Certified Family Law Attorney Jody L. Johnson, who is skilled at helping clients avoid prolonged conflict and find creative, collaborative solutions to their problems.

When Jody serves as an Amicus attorney, she is a fierce advocate for children. As a mediator, she is a creative problem solver, and when she’s serving as a member of a collaborative team in a collaborative divorce, she’s simply one of the best. 

The following content highlights the key areas and questions touched upon, slightly edited for easier reading. 

How did you first learn about and get involved in collaborative divorce? 01:04

Jody Johnson

I heard about it around 1999 through Leary Hanson and John McShane. They’d been at a conference and heard about it. They came back to Dallas and reached out to several of us, and told us about it at that time.

What was it about this new collaborative process that spoke to you? 01:35

Jody Johnson

Honestly, when I first heard about it, I was kind of scratching my head. I was thinking okay,  so everybody’s going to get together, and they’re going to work it out, but they’re not going to go to court. It sounds awesome, but how in the world is it going to work? 

So it wasn’t until a collaborative divorce training that I did with Stu Web (the lawyer who came up with the idea of collaborative divorce) that I was hooked. What hooked me was the team approach of bringing in the neutral mental health professional, the neutral financial professional, and how the process addresses way more than just legal problems.

Jennifer Hargrave

Yes, it really helps provide a more holistic approach to resolve the other issues that are going on in the relationship as well. 

What do you see as the big difference between negotiating a litigated divorce and a collaborative divorce? 02:24

Jody Johnson

I think that the main difference is that the focus in a collaborative divorce is your client. And then secondarily, looking at the whole family and negotiating from the perspective of what’s going to be best for them going forward. Whereas a negotiation in a traditional divorce setting is all about the law, what do we think is going to happen at the courthouse, and whether we get a better deal legally, regardless of whether that’s actually what’s best for the client.

Jennifer Hargrave

You know, I think people don’t know or understand that our courts are constrained by the Texas Family Code, and so their options are so limited in terms of how they can help the family. Not to mention that we just don’t have very much time in front of the judge to have the court consider all the dynamics. In a collaborative divorce, that’s really different.

Jody Johnson

Oh yeah. I love the fact that our meetings are spaced out. People have time to process, prepare, and think about what they want to do. Whereas in court, even under the best circumstances, you can get noticed for a hearing in three days.  You have to make decisions very quickly. It’s very stressful for everyone to make decisions that fast.

Jennifer Hargrave

I love that you’re bringing that up because in collaborative, we’re sitting around a table. I mean, these days we’re on zoom, but you know, we’re sitting around a table, which is a much more natural way to have a conversation about tough issues.  In the courtroom, we are constrained by time limits and constraints on what we can talk about. But the collaborative process allows space to talk about the issues that are important to all the parties involved. 

Jody Johnson

As you know, there are some courts where the time clock is actually projecting on the screen and it’s in your face the whole time. And I think for a lot of clients, that’s just kind of shocking. 

Jennifer Hargrave

Absolutely! They see the time ticking down and then they lose track, start stuttering or fall over themselves because it’s stressful when you’re on the stand. And as their lawyers, we can’t send signals to our clients to speed it up. 

In collaborative, we don’t have the same constraints. We can take as much time as we need, within reason, of course, to address the issues. I suppose one constraint is the fact that everybody’s on the clock, so to speak. So you are paying your team, but you have a much more natural flow of information. 

In collaborative divorce, we rely on something called the roadmap to resolution. Can you talk about that?

Jody Johnson

The roadmap to resolution is a great tool. First of all, people can see a structure to it, which is helpful for them. But ideally, what we do is figure out what information we need. You know if there are children, we want to know what topics we need to address with regard to the kids. We want to know what topics we need to address with regard to their estate. And then we collect the information we need and start looking at different ways to address each of those issues.

Compared to the more traditional approach of offer/counter-offer – usually based on a long bullet list of demands – we are brainstorming different schedules for a child, different ways to handle the house, retirement plans. So it’s just a much more comprehensive, tailored approach for the settlement.

Jennifer Hargrave

Yes, talking about that traditional setting of shuttling offers back and forth, I want to know how well is it usually received if you and I are representing parties in the traditional divorce and I send over our first offer? 

What happens in a traditional divorce upon receipt of the first offer?

Jody Johnson

Well, as you know, the first offer is usually not well-received at all. The client immediately thinks that’s it we’re going to trial. They don’t want to settle and as their lawyer, you have to spend some time getting them calmed down and explaining this is only a first offer. No one’s expecting that you accept it. It’s just a lot of posturing and playing games.

Jennifer Hargrave

And if you are making the first offer, you never want to offer everything. You’ve got to leave yourself room. It’s just like negotiating a car purchase. You’re not going to make your best offer the first time out so there’s this back and forth. And in the meantime, the relationship is deteriorating,

It really doesn’t matter what the offer is, distrust builds up, people get insulted.  I find this fascinating.  As a lawyer, you can look at it and think, wow, this is actually a good offer, but it still feels insulting to the person receiving it because they have started to put dollar values on things or whatever. 

Sending an offer can seem to be a very aggressive act. People don’t necessarily mean it that way, but that can be how it’s taken. The offer can be perceived as a list of demands. And when people are feeling attacked, they might say no to something that is actually a good offer.

Jennifer Hargrave

Right. It triggers a defensive reaction. That’s the problem. And now you’re feeling defensive. That’s human nature. 

That’s what I love about the collaborative divorce process. Sometimes people are a little frustrated because they want to just get to making offers and counteroffers, but we really have to slow things down, and we don’t just jump into offers. And while it feels like we’re slowing things down, what we’re really doing is laying the groundwork for things to go much more smoothly through the divorce process.

Jody Johnson

That’s right. When somebody has in their mind the perfect solution, and they want to make that offer right off the bat, 100% of the time, it does not work. Without the foundation laid by the collaborative process, it’s hard for people to understand each other.

Jennifer Hargrave

The first thing that we do in a collaborative case is help our clients identify goals and interests. 

What do you see as the benefits of helping your clients start with goals and interests?

Jody Johnson

That is a very different starting place from litigation. I’m not saying there aren’t lawyers out there that don’t ask the divorcing parties about their goals, but it is not commonplace. The traditional litigation model is based on the law, whereas the focus in collaborative is on your goals and concerns.  

And when I say goal, that’s very different from a position. So one thing I always tell them is that there’s more than one way to address a goal, but there’s only one way to address a position. It helps me because clients will list what they think are goals. For example, I need to keep the house. Well, that’s a position because the only way to make that happen is if they get the house.

But what is it about the house that is so important? Well, maybe it’s walking distance to their friends, or it feeds into the desired school. Okay. If we ask the right questions we can find out that there are other housing solutions to address that position. 

So I first ask the client what’s important to them. And then I ask more questions to understand which of their issues are positions and which are goals. What can we do to find different solutions that are going to achieve as many of the goals of each client as possible? 

Jennifer Hargrave

I love it.  Many times, when people enter into the divorce process, I ask them where they want to be at the end of it? For a lot of people, that’s really hard because they can’t see the end of it. 

So sometimes we need to back up and ask those why questions to help them begin to formulate a new vision for their life. When you can envision something happening, you increase the odds of it happening. And I think that that’s a brilliant part of the process. 

So after the first one of the joint sessions, we’ll share goals and interests.  And that helps us and the other team members understand what’s important to the parties. 

Jody Johnson

I find that, honestly, 100% of the time in my collaborative cases, my clients say that the first meeting went better than they thought it would.

Once they see the collaborative process in action, they realize that the other lawyer isn’t what they imagined from all the TV dramas. Then they calm down and see that they can talk in front of each other. They find that they can even broach goals that are a little emotionally charged and that nothing bad happens.

Jennifer Hargrave

Often they share common goals too and that’s a great place to start in negotiating. 

After we share goals and interests, what’s the next stage?

Jody Johnson

The next stage is information gathering which, depending on the issues, can take some time to do. 

A lot of education goes from the lawyers to their clients, and the mental health professional who’s meeting with them pulls all that together. Then you’ve got the financial professional who’s figuring out what are the assets and the liabilities, and they’re pulling documents together.

We don’t have to be completely done, but we get to a point where there’s a spreadsheet, and we go line by line with everyone there, and it helps us make sure that we’re not missing anything.  Lawyers love that part! It’s an opportunity for people to ask questions and get educated. There’s almost always one spouse who is not as in the know on their financial picture. And so it’s helpful to get that information out in the open.

Jennifer Hargrave

Such an efficient way of sharing information! So after that first meeting, a lot of the work is being done ‘offline’, right?  The divorcing parties will go and meet with the financial professional. They don’t have to pay for all the lawyers to sit there with them. Then they meet with a mental health professional. 

But then when we all come together at the table they have an opportunity to ask each other questions like what happened to that account? I remember I inherited this money. What did we do with that? 

It allows them to ask questions, get answers and build trust with each other when they’re able to deal directly, as opposed to litigation which increases levels of mistrust.

Jody Johnson

While we are working through each agenda, the divorcing couple is learning to problem-solve. That sets them up to be in a better position once the divorce is over. Because of course, these are not strangers who had a car accident, who solve their case and go off on their separate ways. They’ve got to work together. That’s what is so frustrating about litigation, so often after it, people are in a worse place as far as their relationship. And that’s not great when you have kids, whether they’re adult children or minor children.

Jennifer Hargrave

People don’t understand. They think you go through the divorce, and you’re done with litigation, but for people who have litigated a divorce, we know, that the divorce is only round one. 

Unfortunately, there are going to be post-divorce modifications and more issues down the road, some of which will need legal intervention. Collaborative divorce offers people an opportunity to learn those valuable problem-solving skills, which as lawyers, isn’t good for us. More conflict means more business for us. But as human beings, we always like to see our clients have good lives after divorce.

Jody Johnson

Another thing that is great about collaborative, is that it does not have to be done the same way every time. Different clients process information and problem-solve differently. So it’s not uncommon for the team to have a conversation about what approach we are going to take.  Oftentimes present that to the client and tell them here’s some different ways we could do this. For instance, at the next meeting, we could all show up and start diving into it. Or we could do some pre-work. For example, I might have a meeting with my client and the financial professional to talk about the division of the estate and do some work as far as running some different models.

I think that can be helpful. And then when we get into it in a full joint meeting with everybody, it’s not unlikely that we might all be talking in a meeting, and then we might break up into private sessions for whatever reasons. Let’s say the house is a big topic. We’ll just start talking about what are different things we could do with the house. And the great thing is that not only do you have lawyers who’ve seen things done every which way with the house, but you also have the financial professional and the mental health professional. 

So we’re not relying only on the divorcing parties to come up with options. There’s a great breadth of experience in that meeting room. Sometimes, if we can just set aside judgment for that moment and allow ourselves the freedom to throw up every possible option, we find interesting solutions.

We can do things that are different from what the court would order. So, we can throw out ideas. Just because the court can’t do it, doesn’t mean we can’t agree to it and the court will approve our agreement. So I think that’s important.

What can be done when the divorcing parties reach an impasse?

Jody Johnson

Sometimes it could be as simple as spending more time with my client, one-on-one. I’ve had times when I’ve brought in the mental health professional because we have an issue that is a roadblock. One example I have from years ago is that the husband had a longtime affair and there was a baby who was the product of that affair. It was a very difficult situation, but their children were grown, so we were just talking property. At one point the wife did speak up and asked when are we going to talk about the affair? 

We’d done everything. We thought we were ready to cut the deal. Well, she wasn’t ready to cut the deal because the affair hadn’t been addressed. We were at an impasse until we figured that out. 

As lawyers, if something is not directly relevant, we tend to just want to cut to the chase. But there might be something more going on that needs to be addressed. Obviously, we can bring in a mediator that happens or an arbitrator, more commonly if they’re stuck on a legal issue. 

Maybe the client is talking to another lawyer and getting a litigation opinion. Although I try to always go with my clients for those because the litigators tend to be more honest if I’m sitting there. And I took a client to the courthouse one time. They had a large estate, and they weren’t that far apart. So, I took them to the Dallas County Courthouse, so they could see what the judges are dealing with. They’re not dealing with multimillionaires that are slightly apart on house value. They needed to understand the judge is not going to care about this. And so we went down there, I’m telling you, we weren’t even there five minutes. And my client’s like, I get it. We can leave.

Jennifer Hargrave

It’s very eye-opening.  I think there’s a natural itch to litigate when you are in the process of collaborative divorce, where you think, maybe I’d be getting a better deal if I were in litigation. And I always have to say when you scratch that itch, what happens? You end up with a big wound. Right? 

And so it is a good idea to explore it. Meet with litigation counsel. I can go, I love that. Going down to the courthouse to see what it really looks like and how it happens. Because it really isn’t how people imagine it would be. It’s not a made-for-TV drama moment. It really is quite painful and very hard to come back from once you’ve gone down that road.

What do you think are some common fears that that hold people back from choosing collaborative?

Jody Johnson

Oh, I think probably the number one is fear is that if we’re not successful, I’m going to lose my lawyer. The vast majority of cases are successful, but I think that’s a big fear. And there are lawyers out there that honestly promote that like, oh, you don’t want to do collaborative because you’ll lose me, and you wouldn’t want to lose me. 

Hey, you know, I don’t want to be out of a job. And, and I don’t like to lose. Lawyers don’t like to lose. And an unsuccessful collaborative case is a loss in my column, so I’m going to work my tail off to get this settled. I’m a hundred percent committed to settlement. 

Jennifer Hargrave

I think it is a benefit in collaborative that what we call the collaborative commitment which is that if we can’t help them get to resolution, then we are off the case. That means our interests are aligned with theirs and in trying to help them find the resolution. And in practice, I just haven’t in my experience had many cases at all that I’ve ever opted out.  

Jody Johnson

No, I was trying to think how many I have. I can think of three. It’s just not that many. I tell every client there’s a solution to every problem, and you can either be a part of finding the solution, or frankly, you can have it crammed down your throat by a judge. And that’s how it often feels to clients.  We all had those cases where from a legal perspective, we were like, man, that was a good outcome. But the client’s not happy. 

Jennifer Hargrave

So, we have the breadth of knowing what other types of outcomes could happen. The outcome that you choose is usually a much better outcome. And it shouldn’t feel in collaborative that solutions are being rammed down your throat. Sometimes the mediation people might feel like that like they didn’t have an option. And I always tell people, you always have an option. It’s just that, that other option may not be desirable either.

Thank you to Jody for sharing a little bit of her experience in collaborative.If you’d like to learn more about Jody Johnson and her practice that focuses a lot on collaborative divorce you can visit her website at: JLJ Family Law