What’s the connection between collaborative law, divorce, parenting coordination, mindfulness, and resilience coaching? I posed this question to Attorney David Irvine. David and his wife, Stephanie, are partners with Irvine Law Firm in Asheville. David began resilience coaching with Conscious Legal Minds in early 2018. Seeking innovative ways to practice family law and tools to prevent burnout, David sought out resilience coaching to care for his own well-being while representing clients in contentious divorce and custody cases. I asked David if he would share with Journal readers some of his insights about implementing mindfulness practices and resilience tools into his legal practice. I also asked that he educate readers about collaborative law and how practicing mindfulness and implementing resilience tools in his work complements a collaborative approach to dispute resolution.
LM: David, what drew you to seek out a mindfulness-based resilience coach a few years back?
DJI: Three years ago was a challenging time for me, as my wife and I were transitioning our lives and law practice from Eastern North Carolina to Asheville. During the transition, I examined which parts of my law practice were causing the most stress. Family law litigation was on the top of the list. Mindfulness coaching seemed to fit well with the parts of my practice I wanted to emphasize—specifically mediation, collaborative law, and parenting coordination.
LM: How has studying and practicing mindfulness and resilience impacted your law practice?
DJI: One of the great benefits of my mindfulness work with you is that it has helped me become more aware of how I interact with my clients, with parents in conflict, and with other lawyers. I learned that others’ aggressive or confrontational behavior may be coming from a place of fear or insecurity. Maintaining a mindful curiosity helps me look beyond what is said and done in search of what needs are not being met. Mindfulness makes me a better listener. Resilience tools have helped restore empathy which can be eroded by years of practice within the adversarial model.
LM: What resilience challenges arise in the adversarial model in family law cases?
DJI: Litigation in family law cases creates a win-lose dynamic which is often both unproductive and a resilience drain. Litigants rarely have wins and losses in divorce, custody, and other family law matters. Coming from a mindful and resilience-informed place helps to promote connection between the parties, which is far better for parents trying to co-parent their children. If we can avoid the expense and trauma of litigation, as well as resolve disputes in a way that promotes connection, communication, and cooperation, both parties to the dispute benefit. I’d also like to point out that the trauma of litigation is not confined to the parties. Lawyers can become consumed by the win-lose dynamic. Many family law attorneys report empathy burnout and compassion fatigue. Mindfulness and resilience are bi-directional: they benefit the transmitter and the receiver. I find that the more mindful and resilient I am as an attorney, the better I feel and the more effective I am helping clients resolve conflicts.
LM: You’ve helped me to better understand collaborative law and collaborative divorce. Can you please share with readers what these terms mean and how they differ from a traditional legal approach?
DJI: With a collaborative approach to a legal dispute, the parties and their attorneys agree in writing to resolve the dispute in a non-adversarial way. This does not mean surrendering or giving up what a party hopes to achieve. Rather, the collaborative approach contemplates the parties sharing information and documentation and working together toward a resolution of the dispute that addresses each party’s needs. A key element of the collaborative model is the agreement signed by the parties and lawyers. The agreement provides that those lawyers may not represent those parties should litigation become necessary, thereby removing the threat of litigation from the settlement discussions.
Often, in the emotionally-charged disputes you see with divorcing spouses, the parties (and the attorneys) can get locked into strategies and positions that may or may not be helpful to address the actual needs of the parties. Even settlement negotiations often remain in this position-based model. Position-based negotiation implicitly includes the threat of litigation. The collaborative model attempts to replace the adversarial, position-based negotiation with a cooperative, needs-based negotiation. Needs-based negotiation looks behind the legal and strategic positions of the parties and explores what the parties actually seek to achieve by resolving the dispute. When the strategic positioning is removed, we can find creative ways to resolve the conflict in a manner that responds to what each party actually needs.
LM: What are the benefits of the collaborative approach to separating and/or divorcing spouses?
DJI: The biggest benefit is a result-oriented negotiation that promotes and preserves some level of respect and cooperation between two people who presumably loved each other and cooperated in the past. The collaborative model is often better suited to resolving complex, multiple-issue disputes.
Divorcing parents may have issues regarding the division of marital property and debt, cash-flow concerns, child rearing, and child support concerns. As lawyers, we are taught to separate those issues from each other, and from the emotions of our clients. Asking divorcing spouses to deal with one issue in isolation, or ignore the emotional impact of those issues, is really asking them to do something they are not equipped to do while in the midst of the storm. After the legal disputes are resolved, these parents will continue to have a relationship through their children. There may be scholastic and extracurricular events, graduations, weddings, and grandchildren to navigate. Litigation rarely improves the participants’ ability to communicate and cooperate with each other. On the other hand, a collaborative approach seeks to preserve mutual respect and the ability to communicate and cooperate.
The collaborative model is private and the process is directed by the parties and their attorneys. Litigated disputes are public and the parties lose most of their ability to control the process. In addition, a collaborative divorce is almost always going to be less expensive and less traumatic than litigation.
LM: How did you first become involved with the collaborative approach?
DJI: I saw myself heading toward empathy burnout. I had been involved in too many cases with parents spending lots of money out of anger toward their former spouse. I saw children who needed therapy because of their parents’ dysfunction. I saw people do irreparable damage to relationships between family members. All this appeared to be done in the name of winning or getting even. There is a saying which describes what I observed: “Hatred is a poison that destroys the vessel in which it is kept.” I no longer wanted to play an adversarial role in that drama.
Collaborative law training appeared on my radar at about the same time. I had been a mediator for a number of years, so the collaborative model seemed like a natural extension of that. In addition, I am a parenting coordinator. These three aspects of my practice contain the common element of resolving disputes without litigation.
LM: What are some of the connections you see between mindfulness and collaborative law?
DJI: Perhaps the most obvious similarity is that, instead of taking and defending a position, the parties are working together toward the common goal of resolution. Collaborative law represents a paradigm shift in the approach to problem solving. Mindfulness and collaborative law encourage connection as opposed to reaction. When the parties engage in a needs-based negotiation instead of a position-based negotiation, you begin to understand the fear and insecurity that is motivating a party’s words and actions. You figure out which needs are not being met and work collaboratively and creatively to address those needs as you negotiate a resolution.
For example, a position-based negotiation in a child custody case might involve one party trying to achieve a result by threatening to air the other party’s embarrassing past behaviors in court. This threat creates fear in the other parent, who then reacts by threatening to withhold a settlement of money or property issues. With needs-based negotiation, we ask the parents to focus on what they and their children need. Usually, both parents will agree that their children need safety, security, and a positive relationship with both parents. Starting with that common ground of agreement, a workable custody arrangement becomes more likely.
LM: You mentioned that you do parenting coordination. What exactly does a parenting coordinator do?
DJI: A parenting coordinator can be appointed by the judge in high conflict custody cases. The primary directives for the parenting coordinator are to help the parents learn to co-parent in a more respectful and productive way and to serve the best interest of the children. A parenting coordinator uses skills similar to a mediator in helping parents resolve disputes. However, the parenting coordinator also has some quasi-judicial powers in that he or she can decide certain disputes where negotiation fails. In addition to helping the parents learn to collaborate for the best interest of their children, parenting coordination can also save the parents money by eliminating or reducing the need to have the court decide issues for them.
LM: Is your mindfulness and resilience coaching applicable in your role as a parenting coordinator?
DJI: Absolutely. While I still work within the dynamic of a high conflict family law case, my role as a neutral allows me to be more receptive and less reactive. In high conflict custody cases, both parents are typically in a heightened state of fear and insecurity. One parent may criticize the parenting decisions of the other parent. This naturally puts the other parent on guard. He or she perceives the criticism as being in the nature of “you are a bad parent” or “you don’t love your children.” What I generally see in high conflict custody cases is a feedback loop of reactive behavior. The threat of litigation feeds into that loop as well. A mindful and resilient approach with parents caught in that loop would look for areas of agreement or common needs. The goal is to create a different feedback loop; one in which the parties are being heard by the parenting coordinator and by each other.
The mindful approach is not merely words. I have watched as muscles relax, jaws become less clenched, breathing becomes slower and deeper. Sometimes I find myself walking out of meetings with “high conflict parents” amazed that mindfulness works on such a visceral level. I have been pleasantly surprised to find intersections and synergies between collaborative law, mediation, and parenting coordination that seem to have a mindfulness approach at their core.
LM: How has mindfulness, resilience coaching, and collaborative law impacted your personal life?
DJI: Mindfulness has helped me be more present and enjoy life more fully when I’m not practicing law. Integrating mindfulness and collaborative law into my lawyering has brought new inspiration to my career. I feel more creative as a result of practicing mindfulness. Learning about resilience has energized my creativity. I have been able to reignite my involvement with music. I sing and play guitar in a four-piece band (with Stephanie playing drums). I feel more present, attentive, and relaxed when singing, cooking, or walking with our rescued Australian Cattle Dog, Duncan. If I’m preoccupied or distracted when I’m walking Duncan, he will jerk me right into the here and now. He helps me live in the present moment. Performing music is like that too.
LM: In closing, what are your hopes for the future of the legal profession as it relates to mindfulness and collaborative law?
DJI: I am glad to see that some of our law schools now promote mindfulness and work-life balance education alongside academic studies. Mindfulness can help keep lawyers physically and emotionally healthy. Lawyers who can maintain that sense of empathy and openness can better serve their clients. I have a strong appreciation and respect for the law as a profession. The aspirational goals of just treatment and equity are noble and I think the legal profession has done much to serve those goals. However, the law can also be weaponized. I’m inspired that the legal profession is beginning to embrace all of these approaches to alternative dispute resolution.
LM: If readers would like to find out more about your practice, parenting coordination, collaborative law, or collaborative divorce, where should they go?
DJI: Our website (irvinelawfirm.com) has information about all of these areas. I would also suggest that those interested in collaborative family law in western North Carolina check out the website for the WNC Collaborative Law Group (wnccollaborativelaw.com). Recently, the North Carolina General Assembly enacted the Civil Collaborative Law Act (effective October 1, 2020). This act makes the collaborative model available in civil actions beyond family law cases. For more information about the NC Civil Collaborative Law Act, or about collaborative law generally, readers should check out the website for the North Carolina Civil Collaborative Law Association (nccivilcollaborativelaw.org).
Laura Mahr is a North Carolina and Oregon lawyer and the founder of Conscious Legal Minds LLC, providing mindfulness based well-being coaching, training, and consulting for attorneys and law offices nationwide. Her work is informed by 13 years of practice as a civil sexual assault attorney, 25 years as a student and teacher of mindfulness and yoga, a love of neuroscience, and a passion for resilience. If you would like to learn more about CLE course offerings, or to find out more about one-on-one resilience coaching, please email Laura through consciouslegalminds.com.
If you’d like to learn more about stress reduction and improved cognitive functioning using mindfulness, check out: “Mindfulness for Lawyers: Building Resilience to Stress Using Mindfulness, Meditation, and Neuroscience” (online, on demand mental health CLE approved by the NC State Bar): consciouslegalminds.com/register.