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This American Life: Collaborative Practice

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This American Life: Collaborative Practice

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This is an episode of This American Life based around Break-Ups and Divorce. If you’d like to listen solely to the piece on collaborative divorce, skip to 45:10. Otherwise, the transcript is below for your reading pleasure.

Ira Glass

Adversarial style divorces still make up half of all divorce proceedings in the country. And Barry felt like most of those cases ended up like this one: incredibly expensive, taking a huge emotional toll on everybody, damaging children. So after 15 years of doing these cases like this, he started looking for a different way. And he found something called collaborative divorce.

In collaborative divorce, each spouse gets a lawyer. And then, the spouses and the lawyers sit down in a room together to work out some kind of agreement. But under the rules of collaborative divorce, if one of the lawyers thinks that the other side is being intransigent or unreasonable, not only can he not threaten to go to court, if it does go to court, he has to give up the case. He has to give the case to another lawyer to do. So the lawyers have an incentive to work everything out.

So, OK. They all sit down together, the spouses and the lawyers. And Barry Berkman says that even though the spouses enter the situation with good intentions of working everything out, the biggest obstacle he has is something very simple.

Barry Berkman

I think, often, what happens is, couples in conflict lose the ability to listen to each other.

Ira Glass

And so you find yourself, very often, saying to your own client, no, no, no, no, no, listen to what they’re saying.

Barry Berkman

Absolutely. Absolutely.

Ira Glass

And so one of the things–

Barry Berkman

Not to agree with it, but at least to understand it. That’s the whole question. To recognize that your point of view doesn’t necessarily invalidate your spouse’s point of view.

Ira Glass

You’re saying the most important thing people need to do is simply just listen to each other and try to get along.

Barry Berkman

I would say listen to each other. I don’t know about getting along.

Ira Glass

They don’t have to try to get along.

Barry Berkman

Certainly, listening goes a long way.

Ira Glass

Do things get so reasonable that you get people listening to each other well enough that people eventually just get back together?

Barry Berkman

I’ve had that happen once.

Ira Glass

What happened?

Barry Berkman

What happened was, we had people who simply couldn’t listen to each other. He became very, very busy in his own law practice. She felt she was losing him. Part of it was, they couldn’t find the time to talk to each other.

Ira Glass

But this collaborative divorce process makes you actually show up to meetings with your spouse and your lawyers and start talking. And as these two people talked, they started to see each other’s side of things. Maybe he hadn’t been around enough. Maybe she could have been more supportive.

Barry Berkman

I think the turning point came when they were talking about what to do with the house, and each one kind of recognized that they didn’t really want to be living anywhere without the other person.

Ira Glass

Usually, of course, the spouses do not get back together. When the process works, Barry Berkman says, at least they end up feeling a little better about each other.

Ira Glass

Do people ever say at the end of this process, they appreciate your help and they’re glad for the results, but they’re still full of pain?

Barry Berkman

Yeah. I mean, we’re not going to get rid of the pain. The pain is there. Long marriages, the pain is there. I think going through this process enables people to get in touch with that pain and the real sadness that they’re experiencing, which is sometimes covered up by their anger.

Ira Glass

Are you saying that at the end of this process, actually just going through the dividing of assets– which is really, in the end, all you’re trying to do– actually makes people’s anger dissipate? When you do it this way?

Barry Berkman

I think going through the process where we reach– and it’s not just the assets. The assets are usually relatively easy. Don’t forget we have the kids and the parenting and the decision making. And that’s often a lot tougher.

I think, going through the process where people reach points of understanding where maybe for the first time they get a glimpse of where the other person is coming from– And so all of a sudden, they realize, you know what? It’s not necessary to demonize this person anymore. And when they have those moments of understanding, it goes a long way toward helping them get on with the rest of their lives, actually.

Ira Glass

Barry Berkman is a lawyer in New York and on the board of the New York Association of Collaborative Professionals. Collaborative divorce, by the way, was invented by a Minneapolis lawyer named Stuart Webb.

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