10 - Collaborative law and other respectful processes, with Nicole Quallen
Most people think that the only way to go through separation is by hiring a family lawyer, going to court and letting the judge decide who gets what. In this interview, Nicole Quallen shares her perspective on respectful out-of-court resolutions available for separating couples.
Your host, Christina Vinters, is a nationally designated Chartered Mediator on a mission to inspire and facilitate healthy family transitions. She is an “ex” Divorce Lawyer (Non-Practicing Member of the Bar), Author of Pathways to Amicable Divorce, and the DIY Divorce Manual, and Peacemaking Business Consultant.
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Christina: Today we have the pleasure of speaking with Nicole Quallen. Nicole is a mediator and non-traditional family lawyer in Durham, North Carolina. The non-traditional component of her practice is that she has limited herself to entirely out-of-court resolution for her clients. Her law firm is called Two Families Law, and she helps separating couples build two healthy families through negotiated separation agreements, mediation, and collaborative law. I think that you'll find the discussion with Nicole really inspiring. The conversation with Nicole will really provide you a lot of hope, if you're going through separation because she explains the various processes that she has available for clients to help them sort out their issues without going to court. The different processes involve different levels of support, depending on what the clients need. Nicole is a passionate advocate for respectful family resolution. I think you're gonna enjoy this interview. Here we go.
Christina: Welcome Nicole! I'm so happy that I have you here with me today.
Nicole: Thank you, Christina! And I'm so glad to be talking to you, too.
Christina: I'm particularly excited to have you on because you take such a positive approach to the experience of divorce, with your focus on resolution rather than inflammation. And I'm wondering if we can just start out by having you talk a little bit about yourself and what brought you to family law.
Nicole: Sure! Well, yeah, family law really found me. I actually didn't even take family law in law school. I but went through a divorce. My second and third year of law school. And found myself after graduation with an offer from a local family law firm that seemed to speak to me. So I went right there and sort of hit the ground running at a very, what I would call a traditional family law litigation firm here in North Carolina where I was, you know, I think I took a deposition on my third day there. And I stayed there for about two years, and I, say I loved-hated it. I loved the working with families, I loved that it just being in that, that really sacred inner space of family, and I loved the intellectual challenge of it. But I hated feeling emotionally drained. And I ultimately left that practice feeling that I wasn't actually helping these families. That's what I wanted to do, and was trying to do. But I often felt like that the trials that end... that's what most of our families are going through were court cases. And I felt like they were not being served; that they were leaving core really with a lot of trauma that to us, and I felt really conflicted about it and left. And I actually locked the law altogether for about three years.
Christina: Oh, wow!
Nicole: Yeah, I moved to New York City and started working in the, the non-profit sector. I thought it was sort of my penance. I thought the law is not for me, I'm not meant to be a lawyer, you know. There's something about the law that felt so good, but you just thought 'I just can't do it'. And then slowly, kept creeping back into law and family law in particular. Friends would be going through separation and would ask for my help. And quickly once I started doing that work on my own, I realized I still love family law, I wanna help these families. I just wanna do it in my own way. I know there's gotta be a way. And so, about two years ago is when I started my own practice where I work with families exclusively out of court.
Christina: OK, that's fascinating. Well, I can totally relate to the love-hate part of the traditional family law model. My experience was very similar – that I loved working directly with families and having the impact in such an important part of people's lives. But the actual litigation process was so traumatic that I, too left for a different take on the whole process. Why don't we talk a little bit about how you do that out-of-court process now? What are the options for clients? And yeah, what does that look like?
Nicole: Yeah, great question. I'm always reading about how you do it too, and I know there are different ways in different states and countries. So in North Carolina, I usually give my clients, when they come to see me at a consult. I boil down that out-of-court process here into three possibilities. One is mediation, which is you know, traditionally what you would think of and where I would serve as a mediator. So I'm trained as a mediator, I would sit down with both of the spouses and be really a guide communication-wise, where I'm trying to help them to have the discussions they need to resolve all of the issues of their marital estate – custody of their children, if they have it, division of all their assets and debts, and then any support payments that need to go from one party to the other. And in mediation in North Carolina actually, I know this is different than what you're able to do Christina. Here, as a mediator, I'm not allowed to draft anything for the parties. So I guide them to the decisions, and then they need to go to a third party attorney and turn that into what here is a separation agreement, which is a fully legally binding private contract, and forcible in court, but you don't have to go there if, you know, as long as everyone abides by the terms you never need to go to court. So that's, that's mediation.
Christina: OK, so let me ask you a quick question about that. When they hire the third party attorney and assuming that that attorney still only represents one client, so do they have to go from mediation sort of into the adversarial process to get the draft, negotiate it and complete it?
Nicole: Yeah, you're right in that assumption. It's really... I mean mediators, we don't like that process. So yes, they will go to an attorney and that attorney can only represent one party. In all of the cases that I have done, only one party has ever hired the attorney. And that attorney really works as sort of a scribe, and they are putting into writing what the parties have agreed on. And I think, you know, if you've done a good job in mediation then hopefully everyone agrees by that time. But there's certainly exactly the possibility that, you know, everyone thought they agreed in mediation and then when the attorney drafts it up, that one party says 'Uh-uh'. And then yes, you can be right back into a litigation [inaudible]. What I would tell folks is, if something happens in that draft that doesn't look good to you, come back to mediation and we'll try to resolve it there. Which actually has never happened to me. I think attorneys who do that drafting hopefully, you know, have a good idea of how to translate the sort of summary we give them in mediation to an agreement.
Christina: Oh, good. What I sometimes see is that, well I don't see that very often because here I am alone to do the drafting. But what I've seen in the past is that people can take a mediated agreement to one lawyer to draft and then when the other person goes to get independent legal advice. Then you've got the two attorneys on board, who are now sort of inflaming a conflict that didn't seem to really exist before. And they seem to be on board in mediation and then it goes a little bit sideways with the two attorneys on board.
Nicole: Exactly. You know, I think that I'm mostly able to avoid that because I have relationships with some attorneys who respect and also participate in the mediation process. So when they get the agreement, they don't really want to inflame. But yes, totally. I mean, that's how just exactly like our experience over here which is that as soon as you got two attorneys – two litigation-minded attorneys – involved no matter how much the parties have come to a resolution, you just... you never know what's gonna get brought up.
Christina: And so tell us a little bit about collaborative law. I understand you're quite involved in the collaborative law process.
Nicole: Yeah, definitely. So yes, we are talking a little bit about the options and one is mediation. The second one is sort of a negotiated separation agreement, which we'll talk about later. And the third is what is called in our statutes, collaborative law. In North Carolina, we got it in 2003, I think. And a good amount of the states have a collaborative law statute. And so here's the process, it's super cool. In collaborative law, both parties need to hire an attorney who is trained and ideally experienced in collaborative law. And everyone signs a pledge saying, 'We pledge to work through the legal issues of our divorce together. We pledge not to file a lawsuit and to go to court. We are honest and we're gonna disclose, you know, all of our finances, you know like what you do in court. And then everyone meets in... we come four-way conferences, but you meet in these conferences, or both attorneys and both parties get in the same room. And you talk through issue by issue and we do it in a way where the goal is not for each party to get sort of, you know, the best they can get, the most money. But with an eye towards having two successful individuals and successful children going forward to a workable fair agreement. So the hallmarks of that are that you sign this pledge saying you're not gonna go to court, which doesn't mean you can't. If the process fails, the parties can go to court, the attorneys cannot. So when the attorney signs that pledge, that's it. And the parties, they can go to court, they'd need new attorneys. Yes, so that's the basis of the process. And the other hallmark of the process is that you can hire what we call financial neutrals or child specialist neutrals, to come and join the process. You know, traditionally in litigation, you hire, each side may hire a child psychologist to come and testify about what's in the best interest of the child, and you know, why one parent is miserable and one is wonderful, or what not. And in collaborative, both parties would agree to use one – either child specialist or financial specialist. We use those when folks have you know, complicated finances, businesses, you know tons of real estate properties, or something like that. We have these awesome financial specialists who are trained in collaborative divorce, who can come in and give really good advice about how to make smart financial decisions.
Christina: Yeah, I think that's a real benefit to have the parties choose one professional who they trust. And then you use that as a basis for the discussion of how to make their decisions.
Nicole: It makes all the difference. If you think about it with, I mean, I'm sure in litigation you saw dueling child specialists. And if you have one doctor saying, 'Mom is a great parent and Dad is, you know, really damaging this child,' and the other '...and Dad has one of the opposite.' It's like... very difficult to get past that. You know.
Christina: Yeah, so one of the benefits that I saw when I was practicing collaborative law was that it gave both people the comfort of still having somebody sort of on their side, even though it is meant to be a team approach. So that's one of the benefits that I see of collaborative law over mediation that some people really like to feel like they've got somebody looking out for their interests and protecting them. What would you say are some of the other benefits of the process?
Nicole: Yeah, that's great. Everyone has an [inaudible]. So the benefits... the first benefit that always comes to mind in collaborative law versus, you know, sort of court is that you are avoiding the trauma of a trial. The benefits of having the third party neutrals there. The biggest benefit I think about is that lots of other types of divorce settlements can leave you feeling 'OK, you are satisfied in the moment', and then long term, they might break down or you might start to question 'Did I get a good deal?', 'Did I make a bad deal?'. And I think collaborative is the most protective process where people who leave that process when you have sat in on these sessions, you know, and we do four, five, six sessions. I think everyone leaves feeling like 'I put it all out there. I listened to everything, you know, my spouse had to say. I really understand what we came to'. I think there, you know, agreements that people feel really invested in and are much less likely to breakdown over time. So I think that's an emotional benefit you get. And then depending on how you do it, collaborative divorce is almost always cheaper than going to court.
Christina: Would you say that's because it generally resolves faster?
Nicole: Well, I think... I think collaborative divorce for me any way tugs in more expenses than mediation. But I think discovery in a traditional trial where both parties are, you know, requesting just scads of documents and hiring a private investigator – that process. What I saw in my practice is that that process alone costs 10, 20 plus thousands of dollars. Because you're preparing for everything that could go wrong and you're leaving no stone unturned, versus in collaborative divorce, we send our clients a list and say, 'OK...' you know I have my clients put things on drop boxes and say, 'OK. This is what you need. You need to turn a roll on these documents...' and they upload them themselves. So that's, you know, virtually a free process. And then yes, again I would say they resolve more quickly than the full negotiation process of a trial, you know, from start to finish. And those in North Carolina take, probably an average of a year – often more.
Christina: Hmm, it's pretty similar here. (…) Are you able to able to get involved with families at different stages of separation? Do you ever have clients come to you for collaborative law who, maybe started in litigation and then they decide what's not the route for them?
Nicole: Yeah, interesting. I'd love to hear your answer on this too. So, I think it's the very best if you can go collaborative first, because like we talked about where you meet with a litigator and they start to scare you. It's hard to undo that fear, I think? I've done a bunch of consults with folks who are in the litigation process; they're really unhappy. They come to me and they want to try collaborative. But I find it those folks who have trouble getting their spouse on board. So I think it's hard to go back from the path of litigation. I've done it a couple of times where... I guess in one case, one of the parties lost their attorney so they were willing to try. So the answer is I think it's far better to do at the beginning and I... I'm willing to work with people in any part of the process. I just find it's hard to get them out of the litigation track once they're there.
Christina: Yeah, that's interesting. So when I was practicing law for the collaborative files that I did, they were for clients who came in pretty much the beginning of their separation and made a conscious choice that's how they wanted to handle the whole transition. I don't think I had any people come in after they have started litigation. And I think you're right that you can't go back from that. Litigation really brings out the worst in people, right? Like you said about getting an expert to say the other party is just a terrible parent and traumatizing the child and... I mean, sometimes sure, that does happen and maybe true but for the most part, the adversarial process of trying to put your own case forward and trying to destroy the other person's case – particularly when they're parents. It's something that people have difficulty having just real conversations with each other after that.
Nicole: Yeah, totally. And you can totally see why, I mean, it would be very difficult attacking someone's parenting is so personal. Yeah. So that's why yeah, I totally agree. Anybody I hear who even has a whisper of divorce I say, 'Let me give you a free consult please! Please talk to me before you talk to a litigator.' Because even... and you know, litigators are doing their best in their doing, and pour into work and that I don't think that they're all awful by any means. But it's just a different process, like you said it's completely adversarial. And once you start it, it's really hard to go back.
Christina: Right, I mean, the adversarial process was designed in a way that it's appropriate for people who never have to deal with each other again. So if you've got a car accident, and you're suing the person who hit you, or like a medical malpractice suit or something like that, where there's no need to protect the relationship. It's a great process, I get the information out there, and helps the judge get to the truth. But it is so inappropriate for family situations, particularly parents who will have to deal with each other for the rest of their lives.
Nicole: Yeah. Completely agree.
Christina: Do you have any advice for somebody who is looking at their options, how they can present the option of collaborative law to their spouse?
Nicole: Yeah, I love that question. So I do this all the time, you know. I meet at a consult with only one of the spouses, and I do consults with both spouses too, plenty. But if I'm meeting with one spouse and they say, 'Well, I really want this but I'm not sure. My spouse is going to.' What I say to folks is 'OK, so the two main motivations to try to do something like collaborative mediation, separation agreement... the core of why I do this work is, you know, we want to preserve our co-parenting relationship, we don't wanna go through the trauma of court. All those sort of emotional and human factors. And then I say, 'And if that doesn't speak to your spouse, maybe because they're feeling afraid, vulnerable, you know plenty of good reasons that we could talk to if we got to a consultation. You know, and then I say that speaks to almost everybody is money. And I say, 'Tell your spouse that the average, you know, full custody and equitable distribution trial in North Carolina, the average trial cost is $37,000. Tell them that, tell them that they'll need you know, $2,000 a team or to hire an attorney. Tell them that I'll give you a free consultation and that most of my clients are out the door and under $3,000 and see if maybe they're willing to try it.' And one of those two methods seems to be pretty persuasive. And I also tell people that we just talk about which is don't wait. As soon as you feel comfortable having that talk, before your spouse goes to see a litigator, try to have the conversation. So...
Christina: I think time is of the essence for sure. OK, so why don't you tell me about your negotiation process?
Nicole: OK, so we talked about mediation and then the collaborative divorce. And actually, the bulk of my process is this third sort of funky process that I do that's the most popular and I think it's actually honestly workaround because I can't be like you do where I'm meeting with both parties and mediating the discussion and then drafting for them. And so what I'm doing with a lot of my clients is I'm representing one of the parties, working with them to draft a separation agreement that covers all of their issues just like any other due process is. And then the other party sort of receives that agreement reviews it, maybe hires an attorney to review it. Maybe not. And then sign. And you know, there's something not ideal about that process because I can only represent one party. And I wish I could do what you did where I, you know, really work with both parties. And sometimes the other party will sit in on meetings and I have to make it, you know, very clear that I can represent them, and that I can advise them. But that they are, they are too sitting on it. And then I tell folks, 'OK, if the other party is gonna hire an attorney to review or to participate in this process, I really recommend that you work with another attorney who is collaboratively-trained, like I am, to avoid like we talked about inflaming and this sort of bringing up financial issues that might cost more on legal fees and whatever benefit a party. So that's actually the bulk of my process. And it's a little, like I said... It's a little structurally funky, but it works for tons of people who come to my office, and they say 'We're separating.... We agree on you know, 70% of our issues... We need some help making them legal... We need some help thinking about things we might have missed. But you know, we definitely don't wanna go to court and we don't wanna start a big fight. So that's how a lot of those cases get wrapped up and it winds it being much more cost-effective to them. So I think they just don't need all of the support that the collaborative process provides because they really do agree in most issues.
Christina: So, what is exciting in your business right now? Is there anything that you'd like to share that you think will be helpful for people?
Nicole: Yeah. Man, I think this work is so exciting all the time! Something I'm sort of currently passionate about myself and the other collaborative practitioners in my community is that we want more attorneys to do this work. And I think that the client base is out there. I talk to litigators who I think is skeptical of that. But I have been doing this for less that two years. And I have just got clients after clients saying, 'I didn't know this was an option, I'm so glad you have this...' And in my one city of 250,000 people, there are two of us who practice collaborative law full time. And the other one, my mentor, is retiring. So I'm desperate to get more attorneys doing this work. I think collaborative attorneys... I think we have a lot less stress and some more job satisfaction; I think my clients are amazing. So, something I'm excited about is just spreading the word within the bar and trying to talk about how we can you know, just make collaborative divorce be a bigger portion of what's going on in family law.
Christina: Hmm, there's the traditional view is that... Well, family law is just difficult and you'll eventually burn out. But I agree it's really great to be able to share the different methodologies where you can actually enjoy your work and feel like you're doing good and still be working with a professional.
Nicole: Yeah, totally. I mean, I know you're a believer and you're leading the call here. But to me it just seems like night and day, as far as quality of life. So, yeah. And right in the different methodologies, actually I love doing all the continuing education that I do as a collaborative lawyer you know, just learning about conflict and psychology and human needs, and how people function rather than learning about you know, how to wire tap your access... cellphone to trying to like catch her doing whatever. That's just... it makes me happier and you know, better.
Christina: Wiretapping is not your cup of tea!
Nicole: Yeah, right! It just... It just doesn't quite feel like what I always wanted to do to make the world close.
Christina: Oh, that's awesome. So what are the best ways for our listeners to get in touch with you if they'd like to find out more?
Nicole: Yeah so, my practice is called Two Families Law, and my website is spelled out twofamilieslaw.com. I have a pretty active Facebook and Twitter page where I share ideas about collaborative law, conflict resolution, some of the reasons I do this work and stories from, like our community of collaborative professionals. So those are just great ways to follow about collaborative divorce. And then all my personal contact information is on my website and I'm just always too over-the-moon-happy to talk to anybody about the practice or why someone should either do this work or should try out the collaborative divorce.
Christina: Oh that's fantastic! Well I think the people in your state are very lucky that you decided to come back to family law.
Nicole: Thank you Christina!
Christina: So thank you for being here today! You've shared lots of great information, and good luck with the building of the collaborative community!
Nicole: Thanks, Christina! Hopefully, we talk again soon in lots of different ways.