A Story of Persistence and Perseverance

For years now, I have been advocating for major changes to be made in the way in which family law matters are handled. As a result of recent experiences of mine, I have decided to share some of the many challenges I have encountered in my efforts and describe what I have done to overcome them. Before doing so, I feel compelled to share something that Robin J. Scher, Esq. of Palm Beach, Florida said about me to her fellow members of the Family Law Section of the Florida State Bar in reference to some of my work because she was absolutely correct. Ms. Scher said that “Mark Baer is an outspoken proponent of an overhaul of the US family law court to one he perceives to be more family oriented.” The reason I decided to include Ms. Scher’s comment in this article is her use of the word “perceives.” What I am attempting to accomplish is based upon the way in which I understand the situation. If my understanding of the problem is incorrect for some reason, my proposed solutions to it will be flawed. Furthermore, even if my understanding is accurate, I recognize that there is more than one way of solving any given problem. For this reason, I keep stating that the perception that perception is reality is merely a perception.

In any event, I’m going to start my story with the invitation I received from a colleague in Maryland to be included on a panel program pertaining to collaborative divorce at the American Bar Association Family Law Section 2013 Spring CLE Conference. I had never attended an ABA event and was thrilled to have been invited to participate on the panel and accepted the invitation. The program was titled “Navigating the Emotional Currents of Collaborative Law.” Shortly after agreeing to participate, I requested that they replace “Collaborative” with “Family” in the title of the program because all family law attorneys need to navigate “the emotional currents of family law,” regardless of the process used. I explained that by including the word “Collaborative” in the title, they would be limiting attendance merely to the relatively small percentage of attorneys who are interested in the “collaborative divorce” process. However, I was informed that there were “political reasons” why the word “Collaborative” had to remain in the title of the program.

I therefore proceeded to write an article for collaborative law program, which literally took me over 150 hours to compete. Ultimately, the panel decided to center the entire program around that article. Although the program was very well received, it is important to note that we were placed in the smallest room and it was only filled to approximately one-third of its capacity. In other words, it was anticipated that attendance would be fairly limited because the program was about the “collaborative divorce” model. This is yet another example of why I continue to say that outcomes are typically determined by the way in which the “game” is designed.

About one month after the program, I received a letter from the editor of the “American Journal of Family Law,” which stated in pertinent part as follows:  “You were on the program at the Spring 2013 ABA Family Law Section meeting speaking on the emotional aspects of collaborative law. This is an area of interest to our national audience of matrimonial practitioners. We would like to invite you to author an article for publication in the American Journal of Family Law based on your expertise in this area, or on a related subject.”

I contacted the editor and told him about the “political” issues I had encountered with the ABA and asked if he would be interested in my writing an article more along the lines of what I had wanted to do with the ABA program itself. Fortunately, he responded as follows: “I am delighted that you will be writing an article for the American Journal of Family Law on the emotional aspects of Family Law. This is a subject of great interest to our audience.”

The article I submitted was titled “The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law,” which was published in the Winter 2014 edition of the American Journal of Family Law.

Meanwhile, I had been involved on the Public Outreach and Social Media Committee for Collaborative Practice California (CPCal). At my suggestion, one of the ways in which the committee members were promoting “Collaborative Practice” was by attempting to find quality and positive articles on the process on a weekly basis, that we would all share over the social media and comment upon in the Family Law Professionals LinkedIn group. My job was to find such articles, post them in the Family Law Professionals LinkedIn group and email the committee members with the “New Articles for Discussion.” In my email, I would include the title of the article, the link to the article itself and the link to the particular discussion in the Family Law Professionals LinkedIn group. My email would also request that they read the discussion and attached article and comment.

While not all of the committee members would participate in this effort, many of them did. However, I noticed something odd when I shared “A Comparison of Dispute Resolution Methods Available in Family Law Matters,” a chapter Aspatore Inside the Minds: Strategies for Family Law in California, 2013 ed., published by Aspatore Books, a Thompson Reuters business, July 2013. You see, for the first time, nobody on the committee shared or commented on an article I had provided to them. The chapter discussed the “collaborative divorce” process. In fact, the publisher had made me expand upon that section before publishing it by asking me to address the following questions: “What is your experience with collaborative divorce? Do you find it helpful? Does it resolve issues that other forms of dispute resolution either ignore or barely touch? Does it only apply to certain types of clients/disputes?”

Regardless, the committee members essentially ignored the chapter and the discussion I had posted on it. I found this incredibly frustrating and upsetting, especially in light of the fact that I had received the following email about that chapter from California Certified Family Law Specialist Terry McNiff, who also authored a chapter that was published in that book: “I have admired your prolific work and efforts on the LinkedIn Groups. This morning I had a chance to read your insightful article at the front of the new book we both contributed to, Inside the Minds: Strategies for Family Law in California, 2013 ed. Of course, I noticed your excellent article identifying dispute resolution options was first. I have to admit your article deserved to be first.” It bears mentioning that I had not authored those articles I provided to the committee members, which they did share and comment upon. On top of everything else, in order to be published in that book, I gave the publisher the copyright to the material and received no compensation in return. In addition, to obtain the link and share the chapter with others, I had to pay the publisher $1,000.00. To say that I was incensed by the fact that my fellow committee members refused to share or comment on that chapter would be an understatement. Ultimately, this sort of uncollaborative behavior caused me to resign from my various committees within the “collaborative divorce” community and I have not attended a “collaborative divorce” conference since.

Thereafter, I contacted Gary Direnfeld, MSW, RSW, asking if he might be interested in submitting a proposal to present with me at the Association Of Family And Conciliation Courts Annual Conference that would be taking place in Toronto, Canada in May 2014. I told Mr. Direnfeld my idea and we titled the program “Lawyer Strategies for De-Escalating Parental Conflict through Service Delivery.” Other than my respecting Mr. Direnfeld’s work, I didn’t believe that my program would be seriously considered if I didn’t join forces with a mental health professional. Regardless, AFCC declined our proposal and I decided not to submit a proposal to present at conferences since that time for a variety of reasons.

Nevertheless, I still felt that the presentation I wanted to give on the subject of de-escalating conflict was important and greatly needed. I finally had the opportunity to test out my belief, when I received an email on January 12, 2015 that the San Gabriel Valley Family Law Study Group needed speakers for both the February and March meetings. I volunteered to present and they accepted. The program was titled “De-Escalating Parental Conflict Through Service Delivery” and I presented it at the meeting that took place on February 5, 2015. It focused on strategies and behaviors attorneys can leverage to reduce the risk of parental conflict. I didn’t know what to expect, considering that I was presenting to family law litigators. To my surprise, the program was very well received and I continued receiving positive feedback from those in attendance for the following two months.

I was subsequently invited to present on April 15, 2015 at one of Feinberg, Mindel, Brandt & Klein, LLP’s monthly lunch continuing legal education meetings at their office. Considering the response I had received from the presentation to the San Gabriel Valley Family Law Study Group, I asked if I could give them that same presentation and they approved my request. I changed the program title to “De-Escalating Conflict Through Service Delivery” and emailed them my written materials two days in advance of the presentation.

When I arrived at their office, John Chason, CFLR, the attorney in that office responsible for my being a featured presenter, told me that one of the firm’s law clerks mentioned that she had previously read one of the articles included in my materials. She is an LLM student at the Straus Institute for Dispute Resolution at Pepperdine, which is ranked number one in the nation by U.S. News & World Report for the 11th consecutive year. As it turns out, one of her professors provided a copy of my article titled “The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law” to his students to read. Up until then, I had absolutely no idea that any of my articles were being used to teach law and/or mediation students. As far as that particular article was concerned, all I knew was that it had been published and was yet another of my articles that was essentially ignored by the “collaborative divorce” community.

In any event, I am very pleased to report that the program was very well received and that the attorneys had me cover a few other concepts, even after the 1 hour time frame had lapsed. The questions and comments were very thoughtful and a number of the attorneys approached me afterwards to tell me how much they enjoyed the presentation and that they found the information very interesting and useful. Later that evening, the LLM student sent me the following email: “I really enjoyed your presentation today at FMBK and wanted to thank you for taking the time to speak with me afterward. It was a pleasure to meet you and I will look forward to reading more of your work in this area.” The next day, I received the following email from the Marketing Manager at Feinberg Mindel Brandt & Klein, LLP: “Thank you for such a wonderful presentation yesterday. Everyone loved what you had to say! Thanks!”

This is a story about persistence and perseverance.  Persistence is defined as “firm or obstinate continuance in a course of action in spite of difficulty or opposition” and perseverance is defined as “steadfastness in doing something despite difficulty or delay in achieving success.”  My experience has been challenging, enlightening, and ultimately very rewarding.