Like Mama always said, “If you can’t say something nice, don’t say anything at all.” It is important to choose our words wisely. In the context of a collaborative divorce, this is truer than ever.
Some words are just plain fighting words and have no place in a collaborative divorce. Others are just unnecessary. Here are a few terms you might want to avoid:
Alimony. This isn’t to say that collaborative divorce cases don’t ever involve alimony, as they most certainly do, but it just isn’t necessary to use this particular word. Using the term “spousal support” is better, but even that has a very negative, litigious connotation. What would be wrong with just referring to it as “financial assistance’ or “financial help?” Isn’t that what it really is? A recipient might not like admitting they need “help,” but the payor would likely prefer to be viewed as providing help, rather than being condemned to pay alimony. The vocabulary alone might make it much more palatable, just putting a different label on it. Wouldn’t it feel better to see “Discussion of Financial Help” listed on a meeting agenda, rather than “Alimony?”
50/50. The teams that I work with have realized time and again how potentially damaging referring to percentages, are. It’s just never good. And that is percentages of anything, like timesharing, equitable distribution, child expenses, etc. Using percentages really isn’t necessary or productive. Yes, one client or the other is usually the first to start saying “I just want 50/50” of everything. But, as collaborative professionals, part of our job is to try to help them re-frame and distill their real needs and desires. It is hard to justify exactly why a particular percentage of timesharing is needed. It makes a lot more sense to discuss what nights would be good for the kids. So, when a client starts throwing around “50/50,” this is when our collaborative training should spring into action with questions, questions and more questions. Ask “What is it that is important to you?” When they say something like “That we both get equal time, 50/50!, ask, “And that is because why? You want to maintain a good relationship with your children or what exactly?” Then ask things like, “What is your schedule on Monday nights usually?” or “ What activities does Little Johnny do after school during the week?” Keep asking questions until you have gotten them to explain things beyond just “I want 50/50!” Often this is where lines in the sand can get drawn very quickly without our intervention and heels are dug in for no good reason. When it comes to splitting assets, again, ask questions like, “What are you hoping to accomplish?” and “Why is that important to you?” Again, keep asking and asking. It is our job to help reveal where their motivations are coming from. If we know what they really are getting at, we can help them build options to get there. If we let them get entrenched in percentages, the focus is on the wrong thing, and it is often nearly impossible to get them out of the mud.
But. One of the very best full team meetings I have ever participated in started with the facilitator challenging the husband and the wife and both attorneys to a little game involving “and” and “but.” At the beginning of one of the first meetings, she asked if all were willing to humor her and trust her a little. Each agreed. She announced that, for that one meeting, she would ask them to agree that the word “but” be off limits and, instead, every time someone wanted to say the word “but,” they were challenged to exchange it for the word “and.” For example, “Bill, if Kate says she wants the painting in the hallway of the cow, you will get to respond. However, instead of saying, ‘But my mother painted it,’ you would start your response with ‘and.’” For example, Bill might say in response to Kate wanting the painting, “And I know you like it and I want you to have the painting in the den that is very similar which our daughter painted.” Our facilitator gave some funny samples to break the ice and get them into practice before starting the actual agenda items for the meeting. She explained to them that while this was a tricky exercise, it was putting them in the correct frame for working collaboratively through some bigger topics. There were moments of laughter and moments of frustration, but it was highly effective in getting everyone to work together to find solutions. The meeting was very fruitful.
Parties. Ever notice how our settlement agreements in a collaborative case are awfully similar to those in a litigated matter. This really shouldn’t be the case. It isn’t legally required to use words like “parties” or “Husband” and “Wife.” It may be pure habit or more convenient, but wouldn’t it be more in line with what we are doing to just call them “Bill and Kate?” “Parties” are people in a lawsuit. “Bill and Kate” are people who are participating in a collaborative law process.
Shall. Kind of like “parties” or “Husband and Wife,”, we don’t have to use the word “shall.” In a consent final judgment or marital settlement agreement, it sounds correct to use the word “shall” because it seems official and demanding, but it isn’t a magic word. And to our clients, it sounds an awful lot like unnecessary legalese. Why not use “will” when something isn’t mandatory and, in the rare occasion where the word “shall” would be used to refer to something mandatory, just use the plain old English word “must?” One of my brilliant collaborative colleagues taught our team this one, and introduced us to the 1995 case of Gutierrez de Martinez v. Lamagno[1] where the United States Supreme Court pointed out that sometimes “shall” can be construed as “may” and so should be avoided. Even the Federal Rules of Evidence and Federal Rules of Civil Procedure have completely ditched the word “shall” to avoid ambiguity depending on the context. If “may” or “must” is good enough for the USSC, isn’t it good enough for us?
Issues This little word just implies trouble, doesn’t it? No one wants to have “issues.” So why don’t we just say “topics” or “agenda items?” It is important to be on the lookout for this word “issues” in many different contexts and avoid it at each, like in agendas, conversations with the individual client one-on-one, etc. We just don’t need any more “issues.” We have enough as it is.
MHP More and more, I have noticed that clients really don’t like the thought of needing a “mental health professional” in their divorce. Even collaboratively divorcing spouses often claim the other is the Devil incarnate much in need of Baker-acting, yet mention a “MHP” and they shutter. They also don’t want to pay for it. Afterall, most have already tried expensive marriage therapy and clearly it didn’t work, so they have a bad taste in their mouth from it. Therefore, why not just lose the terms “MHP” and “Mental Health Professional” and just call them “collaborative facilitator” or just “facilitator?” In our local teams’ experience, this simple change seems to make a big difference in perception, and the willingness to pay this essential professional.
Hopefully, these suggestions will be easy to try and might make a significant impact in perception. A famous book says, “The power of life and death is in the tongue.”[2] If this is true, as collaborative professionals, it is imperative that we choose our words wisely. Our clients are counting on us to use every tool in our toolbelt to get them through this.
[1] Gutierrez de Martinez v. Lamagno :: 515 US 417 (1995)
[2] Bible, Proverbs 18:21