81: Do you know about the power of Collaborative Divorce? Learn from Katherine Miller.

Welcome to the Mutually Amazing Podcast. I'm your host, Mike Domitrz, with the Center for Respect. The episode you're about to listen to was recorded when this show used to be called the Respect Podcast, so you might hear that mentioned during this episode. Well, let's get to the show. And this week we have Kathryn Miller, who has been a matrimonial attorney for over 30 years. She founded the Miller Law Group almost 20 years ago because her own personal and professional experience taught her that there was a deep need for a different kind of law firm to help families navigate divorce. Thank you, Kathryn, for joining us.

Oh, it's my pleasure, Mike.

So let's dive right into that. What was your experience as a matrimonial lawyer that led you to think there had to be a better way, a different way?

Well, you know, I went to law school because I was interested in people and the law, and I wanted to do family law right from the very beginning. And out of law school, I got a job working in matrimonial— in a firm where I was doing half matrimonial work, divorce work, and half child welfare litigation. So a lot of litigation around the family. And after a couple of years, I thought, you know, there really has to be a better way to help families who are divorcing navigate these negotiations in a way that was more centered around them and their own needs rather than around the law and the court system and all that. Because across the country, better than 95% of divorces settle before a trial, before a judge makes a decision after a trial. So we were, we were negotiating all of these. And so I took a mediation training really early on, and I did a little bit of mediation, but I really tried to integrate those mediative ideas about focusing on the criteria that are important to people rather than important to judges and lawyers into these negotiations. And in every single case, I ran into the same problem, and that problem was the other lawyer. And it wasn't that they were bad lawyers. You know, it wasn't that— it was just— it was nothing like wrong, except there was no process that would support the lawyers to help the family make a transition in an orderly way that's really respectful and dignified and allowed them to honor the relationship they have and create a new co-parenting relationship based on, you know, planning and not based on— instead of what they're angry about. And so I did that and really frustratingly struggled with that for about 10 years. And at the end of that 10-year period, I got divorced myself. And that really was the thing that really brought it all together and crystallized in my mind that having— now I was sitting in the client chair and realizing that what I had suspected was true all those years, that it's a scary place to be when you're out of control and you are counting on someone who is really pissed off at you for a number of reasons to act in their best self to make it through so that your children will be protected after that experience. And my husband and I never did go to court and we settled in the conference room and we were able to work it out, not in mediation, but in a collaborative-like setting that I thought, you know what, I would rather sell shoes than continue to do this in my professional life because 2 things were happening. One was I really didn't think it was good for my clients. You know, that we as lawyers were making it a lot worse before it got better, and I didn't think that was right, and I certainly didn't think it was right for the children, because my experience was that even when everybody said the right thing and wanted to keep children out of the middle, it was really impossible in a litigation setting, and I mean impossible, to not use the children in some way to put pressure on someone in some regard, and I don't think that's right. And I also thought that it really nurtured— my former employer used to say that if you're going to be a good litigator, you really have to have a mean streak. And you know what? I have a mean streak, and many of us do, right? But I don't, I don't like that me, right? I didn't want to spend my career nurturing and feeding my mean streak. Like, ick, right? So after that, I quit my job. And I looked around for something else to do with my life because I'm like, well, I'm done. I can't be a lawyer because, you know, mean streak. I tried some different things and I got remarried and I had another child and I moved out of New York City. And then a friend of mine invited me to come take a collaborative law training. And, uh, and I, I said, come on, how could it really be any different? I tried for 10 years to do this, you know, to do this, uh, you know, same problem in every case, the other lawyer. And she said, no, I think this would be interesting. And so I went to the training. And I don't know, Mike, if you know anything about the collaborative law process, but it's very growing in the family law area. And really, each party in that collaborative process has their own attorney, but the attorneys are disqualified from litigating. So there's no two tracks, no ace up my sleeve, no, well, we'll just take this down to the courthouse and see what the judge says about that. Everybody is 100% involved in finding a resolution for the family based on what's important to them. Does that sound familiar? Because that's what I've been trying to do my whole life, right? My whole career. And so I got very serious about that, and that was in January of 2003. And so it's my— it's that— and since that time, I've really been working hard to find ways to help people Navigate the transition of their families to a binuclear family and doing it in a way that really allows them to hold on to their dignity, to be their best selves, to treat each other with respect, and most importantly, treat their children with respect.

So I love it. I love the beauty of that. Everybody's respecting. Do you, do you need both sides to come to the table wanting this approach for this to work at all?

Yes, you do. And it doesn't mean that— sometimes people were like, yeah, that works. And mediation too. I do a lot of mediation as well. That works if everybody agrees that the marriage is over and nobody's angry. And that's ridiculous. Of course people are angry. It's the definition of divorce that you're going to be angry at the other side. There's going to be feelings of betrayal. There's going to be fear. There's going to be feelings that you have to protect yourself. So, yes, everybody has to agree to work this way. They have to agree that they have some desire, some yearning to find a way to resolve this in their own terms. But let me go back to the statistic. In New York, 97% of couples getting divorced settle. 97%. Nationwide, 95%. With those statistics, it's not really a question of whether or not you're going to settle. It's how. And once you realize that it's how you're going to settle, it's really, well, do we want to do that based on what's important to us, what's important for our kids, based on our finances and our situation and what makes us, you know, a snowflake now as a family? Or do we want to settle based on what New York State legislature or Ohio legislature or California, wherever you are, what the legislature and the courts think is best? I think it's an easy answer.

Yeah, absolutely. I mean, it makes common sense that if you're going to settle, Then let's make this as positive as possible. Like you said, there's a lot of negative toxic energy, but it would just be common sense, as you said, to res— to one, especially when you said there's kids involved, to respect their safety, right? This is such a scary experience, and to create a safer environment for them, I think, would be priceless.

I think so too. I mean, to me, it's a no-brainer. And I think, you know, some— there are some people out there who really take a kind of scorched earth approach. Like, if this works for you, it doesn't work for me. Even if I have to spend— I had a client say to me once, thankfully not in a divorce setting, she said to me, I would rather stand on the corner with a tin cup begging for money to pay your fees than give them one nickel. If you feel like that, then this is not the right approach for you. But anything else, anything less than that, if you feel like, all right, I don't know if it's possible, I'm really pissed. I don't trust. I mean, these are all good questions to ask the professional, but they're by far not a bar to finding a way to resolve this. You know, I just want to go back and say one thing about this, because it's not about the other person, Mike. This is about yourself. Can you respect yourself enough to take the high road? Because I think you'll feel— I think people feel— I certainly feel— much better about myself if I do that than if I allow myself to give into my, you know, my basest fears and, and, and, and act from that really scared little girl place.

So for the person who's listening going, yeah, but how do you, how do you feel safe that you're not being taken advantage of? Because we have a society, unfortunately, that teaches to do the kind thing or the, or the not to not fight Means you're gonna— you are gonna get taken advantage of. And I'm not saying that that's true at all, but that's what people want to— sadly, they believe that, that if I don't fight, somebody's gonna get it, take advantage of me.

Right. And that, I think, is really, really not true. You know, the expression, you catch more flies with honey than you do with vinegar. And I think that I found that in the collaborative work and mediations that I've done, when we get to information exchange, because lots of times people are afraid that they won't have the— that people won't share the information unless someone makes them. Which I think is a somewhat naive view of what can be made to be shown. You know, for one thing, a liar is a liar and a cheat is a cheat. And if they're really good at it, it really doesn't matter what system you're in. But I found that people are much more willing to put their cards on the table, so to speak, in a process that isn't in the courtroom because it's private and it's confidential. And so I think that's one thing. And another thing that— and this is very ironic what I'm going to say for a lawyer to say, but what I have learned in over 30 years of practice is that arguing doesn't really work. If you think about it, when was the last time— I mean, sometimes arguing gets it over and one person sort of is able to overpower the other person. But when were we ever really able to resolve any significant conversation that you had with somebody who was important to you? By arguing with them. Does that really work? No, it doesn't work. What works is negotiation. What works is talking about what's important. It works to talk about what's possible. It works to negotiate, but it really does not work to argue. And I think that, you know, again, I've been a lawyer for over 30 years, and I think that those are the skills we really need to hone and develop. And I, and I don't think that anyone should think of a non-litigation process as a second-class form of justice. I think you get a better result if you're able to stay out of court. And if you are nice doesn't mean you're a pushover.

Yeah, that's so, so important that you do that. People have that stigma for some reason. So how does somebody— let's say the marriage is ending, they know it's ending. Maybe they're not the one who wanted it to end. How does somebody respect and honor the marriage, even if it's ending, especially when it's against what they wanted?

Yeah, well, I think that getting some help really is important. I think that when anyone is dealing with the end of a marriage, whether or not you're choosing it or not, and I really want to emphasize that, whether or not you're choosing it or not, it's important to get therapy because, or some kind of coaching. To help you process the inevitable feelings that come up. Because even— I think it's sad and disorienting even for people who are choosing it. And I've sat with many clients who chose to divorce while they're signing their final divorce papers and handed them tissues as they wept about the end of the marriage. So I think, you know, 2 things. One is to get into some kind of treatment or situation where you can process the feelings because they're changing and they're changing fast, Mike, as you go through the process. And another thing is to really do your research about what kind of legal help you're going to get so that you can really be supported to do what you really want to do rather than convinced to do something that you really don't want to do. And can I just tell you a really brief story? A few years ago, a woman sat in my office and she wasn't a client. She was here to just talk about career stuff, and she had gotten divorced in another city. And she was married to a well-known person, and she felt that she had to hire a shark because she felt she needed to protect herself. And she felt, you know, he was going to have so much more power and influence because he was the person in their relationship, you know. And she felt so sad and so ashamed, ashamed of the way her lawyer had treated the— her former husband. And she felt that the relationship between them as co-parents was ruined because the actions of the attorney reflected on her, and there was no way he would ever believe that it didn't come from her. And it ruined what they had hoped for in the future as being able to enjoy their children. And it was just a really sad conversation. And I think that's really, you know, true for so many people, and it really doesn't have to be that way.

Yeah, I think that— well, that's what's so beautiful about this. Now, you mentioned though that if somebody uses this, they can't use you as an attorney if they went on to argue this. So there's where I was a little confused. If they're going through collaborative divorce, can they still jump out of it and then sue?

Sure, they can. It's just, it's just the lawyers that they can't, right? The statistics are pretty high on how successful the process is. And people change lawyers anyway at times. It's not uncommon to have a divorce start with one lawyer. It's not common, but it's not unheard of, like, oh my goodness, somebody's changing lawyers. Shock of all shocks. That's not a big thing. But the idea is to keep the lawyers, and collaborative can be an interdisciplinary process too, where we work with mental health professionals and financial professionals so that the professionals bring their targeted expertise to unwind the piece of the relationship or reform the relation— piece of the relationship that they're an expert in. And the entire team is disqualified if somebody wants to leave and sue. But like I said, that rarely happens.

And you've stated that— not in this interview, but in materials you had sent me— that empathetic listening is really key. And so what do you mean by that? And what are you referring to in that divorce process?

Yeah, well, that means that it's really important as the attorney for one side, for lack of a better word, to really understand what's important to the other side. All right, because if I don't understand what's important to my client's spouse, I'm not going to get a really good deal for my client because it's about like the fashioning And crafting an agreement that's a life-altering agreement, people have to feel like if they're getting something from it, right? And otherwise it won't last. And so it's 2 things. One, it's understanding what's really important to the other side so that we can give them enough of what they need for my client to get what he or she needs. That's one thing, right? And the other thing is to help my own client figure out what it is that's really going on for him or her, you know, so that, you know, they come in and, as you said, you know, they're angry, they feel betrayed if they've not made the decision to divorce. They've got all kinds of competing emotions going on. And inside that sort of soup of feelings, which again, it's very disorienting, to help sort of sort out What is really grounding? Where do they want to go with their lives? And to be able to really help them tease that out and hear what it is rather than just sort of slap my legal solution onto their lives. Then everybody looks the same. Oh, it's this. You've got kids. Oh, you don't have kids. You own a house. You don't own a house. You have a business. You don't have a business. That's pretty two-dimensional.

No, it makes total sense. It makes sense that this brings it all together in such a really caring for everybody involved. And I guess that's probably the tough part for people. Some people are sitting there, they're so mad, they don't want the other person to have a gentle road, right?

Yeah.

But the ones coming to you are the ones who say, no, that's not who I want to be. So that you're not really dealing with that person there because that wouldn't be the client in that case.

Yeah, most— mostly not. I mean, I think mostly people want to find a way through this that makes sense for themselves. Rather than— and they— but they want to find a way to process for themselves their own pain rather than, you know, revenge. I mean, let me ask you this, Mike. I mean, maybe I'm changing it up a little bit, but revenge, does that really do anything for anybody?

No, not in my mindset. But I know some people are saying, yes, it makes me feel better. That's what it does. You know, that I could see somebody thinking that.

Yeah, it might make you feel better in the short term, but if you're locked been in combat with this person, you can't move on in your life, uh, you know, if you really feel that there's no closure here. And to the extent you're constantly feeling like, yeah, I'm still pissed off, you are really unable to move on in your own life. There's this expression which I really love, and it says that holding on to resentment is like swallowing rat poison and hoping that the rat will die.

Yeah, I love that saying too. I think it's just so powerful.

Yeah.

And how does someone help make sure they really protect their children in the process?

That's a great question, Mike. And I think that one thing to do is really think about your children for who they are. And, and think about who— one thing that I say to my clients is think about how you would want your children a year or 5 years from now to describe their parents going through this divorce. And if you think about that, you know, I think that really brings into relief how important your children are and how individual they are and that they're not a commodity. And I think it's really easy, and this is what really worried me about the litigation process, is that the children become sort of commoditized so that, you know, well, who's going to— I'm going to— well, I'm not going to agree to this time period unless I get the money settlement, or I'm going to ask for custody because I know that's what really scares her. Or, you know, things that really are just tools to put pressure on the other side. And rather, think of your children as really having a very difficult thing that's happening in their family, and what can you do for them? What can you do? One thing that I like to do is to have people bring pictures of their children to the meetings, and we have the pictures there on the table.

Right.

So that they remember it's, you know, it's coming and it's sad.

Brilliant.

Right. Yeah. And so, you know, they're really live there as, as, as humans who are suffering from this. And I think that really helps people, um, really keep the children foremost.

And yeah, I mean, the emotional connection there, it's just brilliant. Makes all the sense in the world. Yes. And, and you have a book, a couple of books you recommend. One is Challenging Conflict and another one is Powerful Non-Defensive Communication. Why those 2 books?

Well, Challenging Conflict is a book written by Gary Friedman and Jack Immelstein who started— who founded something called the Understanding-Based Model. And that works— we work in that way to really help understand both what's important to both sides, what's important about their situation, their children, what's possible, and work from that perspective. rather than from a law-based perspective. Of course the law is important, people should know what it is, but— and I think Challenging Conflict really helps people explain how it works, and there's a lot of stories in there, and so people can see, you know, that this just isn't a great theory, it actually has worked in these various quite difficult and challenging situations. So that's one, and it's very easy to read, and that's great. And Powerful Non-Defensive Communication is written by Sharon Strand-Alyson, who is really quite brilliant in how she talks about communication and how we're communicating not just with our words, but with our tone and our body language, and really helps point out how defensive we often are when we communicate with each other. And especially, I think, in families, period, even if they're sort of intact, you know, or, you know, in arguing or discussion, people misunderstand each other all the time. There's something called attribution error. And attribution error says that we judge ourselves based on our own intention. So, you know, Mike, maybe I hurt your feelings, but I'm a good person because I really, you know, I was coming from a good place. And if that happened, I'm sorry, but I'm still a good person. And but we judge other people based on the impact of their actions upon us, meaning if you hurt my feelings, you must have intended to, so you're bad, right?

Yes.

And so, and what— and the way that this book and Sharon's work is really to help express ourselves in a way that is less defensive and is more open for the possibility of understanding. And I think if people can get that early on, they're less likely to end up in my office, you know, getting divorced, because I think that the major cause of divorce is a breakdown of communication. And that breakdown of communication then leads to maybe extramarital affairs or, or I don't know, uh, shopping and money problems and, you know, those kinds of things. And, and so I think that Sharon's work is really, really helpful.

Awesome. I want to make sure everybody can find you, Kathryn. It's KathrynMiller, WestchesterFamilyLaw.com. WestchesterFamilyLaw.com. You also have a website, DivorceDialogues.com. Thank you. And we're gonna have all the links to your social media and everything in our show notes. Thank you so much for joining us.

Oh, thank you so much for having me.

Absolutely. For our listeners, you know what's next. It is question of the week. This week's question is, Mike, what about when I vehemently disagree with another human being? How do I still treat them with respect? Well, here's the key. They're a human being. So treat them with respect as a human being. It doesn't mean you agree with their choices. It doesn't mean you admire their beliefs. It means that you are going to understand this is a human being who deserves a basic love, dignity, and respect. So, I may choose to walk away from this person or this conversation, and I'm going to do so in a way that doesn't degrade them. It's not about humiliating them. I'm just going to walk away because this doesn't fit what I need in my life in this moment. And I'm going to do it with respect. I'm just going to say, thank you for sharing with me. I think we're on different patterns or different pages. And so, I don't think this is going to go anywhere, right? You can say it however you want to say it, but that you treat it with respect. Versus attacking, humiliating, degrading another person. Do your best to treat the person with respect regardless of what you think of their beliefs or even their actions at times. Treat the person, the human being, with respect. We'd love to hear your questions, your thoughts, and your ideas. And the best place to leave those with us is on our Facebook page at facebook.com/MutuallyAmazingPodcast. Of course, you can always contact us on our website at mutuallyamazingpodcast.com. Remember to subscribe to this show so you automatically get it every week. And if you could take one moment to leave a review, that really helps other people find the show, which we are greatly appreciative of. So thank you so much for joining us. May you make today and every day a life full of mutually amazing relationships.