Like timing, scheduling is everything. Probably every seasoned litigator has experienced that irksome moment. The email from opposing counsel says they talked to the judge and have obtained dates for me to choose from to schedule an important hearing. Yeah, the rules say it is ok to have ex parte communications with the judge’s office about mere scheduling maters, but, on the receiving end, that just never feels right. I have almost never done it. Although I can, I don’t really want to. I don’t want to take any chances of appearing improper. I don’t want to take the chance the judge might say something about the case beyond mere scheduling. It’s pretty uncomfortable being in the position of telling a judge, “Hey, well since opposing counsel isn’t here, we probably need to wait to discuss that [substantive] issue.” It has happened to me though.
It is also uncomfortable having to tell a professional client, like a physician, that a hearing has been set in their case without regard to their own schedule. Of course, this happens every day in litigation. It doesn’t matter to the judge if the date or even time of day is not optimal to one party or the other being in a good head space.
Like in litigation, in collaboration, sometimes, scheduling is anything but “mere.” It is everything. Don’t make the mistake of leaving it to chance. Here are five things to consider when it comes to scheduling:
1. SCHEDULE EARLY – Ask any experienced collaborator and they will tell you that scheduling is one of the biggest challenges in collaborative divorce. Scheduling in a litigated case is like hearding cats. In a collaborative case, where there are two additional professionals (the neutrals) and usually two professional clients’ schedules to consider, it can be more like sheparding the wind. Even before the very first meeting with the clients, it is best to begin the process of scheduling several dates. There are many apps out there that make this easier, like Doodle, Calendly, and CalendarHero. Start doing this before the clients join you for best results so they don’t get antsy. They hate paying for time spent scheduling, but, like it or not, it is one of the most crucial tasks. Come up with dates to propose to them that work for all of the professionals, first.
Also, if you think your case will resolve in four meetings, at the very first meeting, schedule six to eight just to be safe. Not once have I been on a team where we were sorry we scheduled out too many meetings, but I have been on many teams where we did not originally schedule enough. Resist the urge to not schedule out far enough for fear that the clients will panic about how long the collaborative divorce process will take. If you develop a standard protocol in your practice group or individual team of setting six months of meetings or one year of meetings on every case no matter what, then the client’s won't be so worried. As a team, present at the outset, “it is just the way we do things.” I personally try to mention this in my very first discussion with the client, so it’s expected.
2. SPACE THEM OUT – Again, sometimes, teams don’t give themselves sufficient time between full team meetings. Again, we do this out of fear that it will look to the clients like the process is taking too long. Instead of scheduling once a month, we may try to do a full team meeting every two weeks or every three. The clients likely do not appreciate the amount of work that goes into a well-orchestrated full team meeting. In my litigation days, I told clients a good rule of thumb for trial preparation was, for every one hour of trial, it would probably take four hours of final pretrial preparation. In collaborative cases, I would tend to double that actually. For every two hour full team meeting (standard maximum in my region), there is usually about sixteen total hours of “offline” work in preparation. For example:
- Four way (professionals only) debrief – one hour (four total hours);
- Four way pre-brief before next full team meeting - one hour (four total hours);
- Attorney with their client debrief and pre-brief – two hours
- Other attorney with their client debrief and pre-brief – two hours
- Facilitator with each client individually or together –two hours
- Financial neutral with each client individually or together - two hours
Of course, the actual amount of time needed between full team meetings will be different from case to case. It might be different between each set of full team meetings, as well. Don’t let the fear of what the clients might think prevent you from taking the time it takes. Teams I work on usually schedule a month between meetings. We have done less, and it seemed too rushed. More and it seems too far out. If it is too far out, people tend to forget, even with good minutes. But don’t fall into the trap that taking too much time between is not good because new problems might crop up and ruin a possible settlement. This is the old paradigm. We want agreements that clients can sleep on. We want the family to have a chance to test drive their agreements. If problems are going to arise, we want them to do it while there is a team to assist them in navigating it. It is ok to tell the clients this. It is one of the benefits they are getting by using a collaborative approach. Nothing is going to happen to which they don’t agree.
Again, just like managing expectations about how many total meetings might be needed, we may just need to explain as early as possible what the standard protocol is for the spacing between meetings, and why. It allows for the professionals and the clients to get the information they need, have time to truly digest it, and ask questions of the proper team member or members before making any decisions. That prevents “buyer’s remorse.” It also increases long-term satisfaction with their decisions. It is also acceptable to simply say about spacing out the meetings, “As a team, it’s just the way we do things.”
3. MEETINGS BETWEEN THE MEETINGS: In the same way it is best to schedule early the full team meetings, schedule the meetings between clients and lawyers and clients and neutrals early. While everyone has their calendars out, just do it. That way if such meetings cannot take place in the allotted time, then the following full team meeting date can be adjusted accordingly. These meetings have to occur, so might as well make time for them. This helps everyone stay organized and on track. The clients can see the progress.
4. SCHEDULE ALL THE RIGHT PEOPLE: Don’t skimp on necessary team members here. Resist the urge to leave the facilitator out of a meeting between the meetings because it is a “financial meeting,” or it’s just a lawyer meeting with his or her own client. Often, these “offline” meetings are the most emotionally charged and can lead to the greatest risk of breakdown of the process. Almost inevitably, we skimp because we are trying to save costs. But, these meetings, if properly staffed, have the power to save the clients tens if not hundreds of thousands of dollars if they don’t get upset, walk away and end up in litigation. In other words, don’t be penny wise and pound foolish.
The first time I invited the facilitator to my debrief with my own client, it felt weird. It was like I was inappropriately inviting a third party into the intimate sanctity of our conversation. However, it was super helpful. Now I do it all the time. Doing this, for example, allows the client to “cry on my shoulder,” yet have the truly right person for the job (the facilitator, not me), wipe their tears. One of the reasons that I love the collaborative divorce process so much is that it gets the “right man (or woman) on the job.” I no longer find myself trying to be my client’s therapist. I can let the facilitator do what they do. The facilitator will reassure them and say something like, “I would encourage you to talk with your therapist about this very legitimate feeling in more detail.”
5. HAVE A BACKUP PLAN: It is a great start to go ahead and schedule the “offline” meetings with the clients and the necessary professional team members. It’s great to schedule more meetings into the future than you will likely need. However, the difference between being a good scheduler and a champ is setting a backup meeting to each meeting. I know! I know! This seems like pushing the envelope way too far, but just do it. Trust me. The extra effort it takes now is so worth it if one of the team thinks they have COVID, or they forgot it was their own 25th wedding anniversary. Also, don’t forget to consider the potential significance of timing of meetings for the clients. If it might take a year to complete their collaborative process resulting in a well-informed final judgment, you will necessarily hit every single holiday, birthday, and other special annual event. For most clients, their anniversary date is still significant. Therefore, it might be best to schedule a full team meeting for another day, for example. Anniversaries of sad days, like a death, are also good to avoid. Paying attention to things like this are a gift we can give the clients in collaborative divorce that we usually cannot give otherwise.
For me, since recently switching to taking only collaborative cases, the quality of my problems and my client’s problems related to scheduling is much improved. Yes, it is still hard. Like trying to capture the wind, sometimes. But, instead of hoping my opposing counsel did not say something inappropriate to the judge during an ex parte communication about mere scheduling, I get to work with my team to make sure we tailor the timing and schedule to our client’s needs. We can try to ensure they are in the best frame of mind to reach fully informed agreements that will stand the test of time. Talk with your full team, including clients, early and often about scheduling. You will be glad you did. Like timing, it’s everything.