WORDS ARE IMPORTANT

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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 fighting words and have no place in a collaborative divorce. Others are unnecessary. Here are a few terms you might want to avoid:

Alimony. This isn’t to say that collaborative divorce cases never involve alimony –many do—but it just isn’t necessary to use this word. Using “spousal support” is better, but even that term has a negative, litigious connotation. What would be wrong with just calling it “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 the dreaded A-word: alimony. The vocabulary alone might make paying this assistance or help more palatable. Might it feel better to divorcing couples to see “Discussion of Financial Help” rather than “Discussion of Alimony” on a meeting agenda?

50/50. The teams I work with have realized time and again how potentially damaging referring to percentages are. It’s never good. And that is percentages of anything, like overnight timesharing, equitable distribution, and child expenses. Discussing percentages is seldom necessary or productive. Yes, one client or the other is usually the first to say, “I just want everything split 50-50.” But, as collaborative professionals, our job includes helping them reframe and distill their real needs and desires.

It’s hard to justify why a particular percentage of timesharing is needed. It makes more sense to discuss what nights would be good for the kids to spend with each parent. So, when a client throws around “50/50,” our collaborative training should spring into action with questions. We should unearth underlying motivations. Ask, “What’s important to you and the kids?” They may answer, “That we both get equal time, 50/50!” Follow up. Ask, “Why? I understand you’d like both parents to maintain a good relationship with your children, correct? If not, what are you hoping equal overnights will achieve for you and your children?”

Then ask questions like, “What is your family’s typical schedule on Monday nights?” or “What activities does Little Johnny do after school during the week?” Keep asking questions until you’ve gotten them to explain things beyond their position, “I want 50/50!” Often such positions are where clients, without our intervention, draw lines in the sand and dig their heels for no good reason.

Likewise, for splitting assets, ask questions like, “What are you hoping to accomplish?” and “Why is that important to you?” Keep asking questions. Our job is to help reveal true motivations. If we know what they are getting at, we can help them build options to get there. If we let them get entrenched in percentages, they’re likely to focus on the wrong thing. Then it’s nearly impossible to get them out of the trenches.

But. One of the best full team meetings I have ever participated in started with the neutral facilitator’s challenging the husband, the wife, and both attorneys to a little game involving “and” and “but.” At the beginning of the first meeting, she asked if all would humor her and trust her. Each agreed. She announced that, for that meeting, she would ask each participant to agree that the word “but” would be off-limits. Instead, every time someone wanted to say “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, in response to Kate’s wanting the painting, Bill might say, “And I know you like it and I want you to have the similar painting our daughter painted that’s in the den.” Our facilitator gave funny examples 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 bigger topics. There were moments of laughter and moments of frustration, but the game was highly effective in getting everyone to work together to find solutions. The meeting was fruitful.

Parties. Ever notice how our settlement agreements in a collaborative matter sound 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 to use words we’ve always used. But wouldn’t it be more in line with what we collaborative professionals are doing to just call the people “Bill and Kate?” “Parties” typically are adversaries litigating in a lawsuit. “Bill and Kate” are human beings participating in a collaborative law process.

Shall. 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. “Shall” isn’t a magic word.

And to our clients, it sounds like unnecessary legalese. Why not use “will” when something isn’t mandatory and, when “shall” would be used to refer to something mandatory, just use the plain English word “must?”

A brilliant collaborative colleague taught our team this one and introduced us to Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 433 n. 9 (1995). In Gutierrez, the United States Supreme Court pointed out that, although “shall” generally means “must,” legal writers sometimes use or misuse “shall” to mean “should,” “will,” or “may.” Even the Federal Rules of Evidence and Federal Rules of Civil Procedure have ditched “shall” to avoid ambiguity. If “may” and “must” are good enough for the United States Supreme Court to distinguish non-mandatory from mandatory acts, aren’t they 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?” Be on the lookout for this word “issues” in many different contexts and avoid it at each. Examples: agendas, one-on-one conversations with the individual clients, and meeting notes. We just don’t need any more “issues.” We have enough!

MHP. More and more, I have noticed clients don’t like the thought of needing a “mental health professional” (MHP) in their divorce. Even a collaboratively divorcing spouse may claim the other spouse is the Devil incarnate much in need of involuntary commitment. Yet mention an MHP and they shudder. They also don’t want to pay for an MHP. After all, many couples have already tried expensive marriage therapy that didn’t work, leaving them skeptical about benefits from having an MHP guide the collaborative team. Therefore, why not just lose the terms “MHP” and “Mental Health Professional” and call them “collaborative facilitator” or just “facilitator?” In our local teams’ experience, this simple change makes a big difference in people’s perception of and their 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, “Death and Life are in the power of the tongue, And those who love it will eat its fruit.” (Proverbs, 18:21). 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, including how we say things, to get them through this.

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