Category Archives: Mediation

When You Gotta Go to Court

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I have long been a critic of the adversarial system of litigation in family law matters.  It is, in so many instances, an atrocious method of solving the problems litigator.1that beset an intimate couple as they dissolve this powerful, attachment-infused bond.  I still remember a case I had years ago when I was still representing people as a divorce lawyer.  I was working with the wife and the husband’s lawyer was a top level, high integrity, low stirring-the-pot guy.  We ended up settling the case after a full-day settlement conference and when it was over, my client had such contempt for her husband – she felt so ill-treated by him through the process, that I came away convinced that, even if the lawyers are solid and solution-focused, the process, itself, is hell on people’s psyches.  In the ensuing years, I have often felt enormous gratification helping a divorcing couple manage to resolve their legal issues while keeping the pain, anger and fear within manageable levels.  Mediation and collaborative law permit people who can work together with respect and some degree of empathy to arrive at an outcome that keeps their post-divorce relationship from diving into the pit of chaos and alienation that I so often see in the aftermath of almost every litigated divorce I have encountered.

That said, there are times you’ve just gotta go to court.

Presentation of a dispute to a judge or court commissioner may be the unavoidable choice one must make in order to establish boundaries.  Ultimately, the legal rules and decisions by a court…and the court orders that result, establish boundaries of behavior for the individuals involved.  This may be necessary when one or both people are unable to do this themselves.  One such circumstance arises when one divorcing party deeply objects to the divorce and is filled with such outrage and betrayal that efforts to reach agreement with that person on any but the most onerous and unrealistic terms are impossible.  Some people’s pain drives the couple into court so that the man or woman sitting on the high bench in robes must establish those boundaries.  I recently experienced a case such as this, in which the angry party’s lawyer enabled them in their hyperbolic sense of outrage, only to result in a brutally unfavorable court ruling for his client.  She was unable to acknowledge basic boundaries of behavior and insisted upon maintaining her righteous anger.  That anger cost her dearly, but she was constitutionally incapable of  managing her part of the conflict.  Another situation which will necessitate litigation is if one of the parties is struggling with a personality disorder, which is a “locked in,” very rigid manner of responding to stress which prevents that person from managing the anxiety and challenges of conflict.  These people need boundaries established and, usually, the court is the only instrument by which this can be accomplished.  Also, untreated substance abuse presents a significant challenge to the establishment of boundaries of behavior which will be respected.  In this minority of situations, you gotta go to court.

And the Winner for Most Ridiculous Ad Message is……..

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I was watching some sporting event over the weekend and was jolted alert by a Cadillac ad which carried one of the most offensive messages I had ever heard blurt through my speakers.  “A weak man urges compromise,” said the narrator as a brand spanking new, full loaded Caddy rolled into view.cadillac-logo-wallpaper

Seriously?  Who were the people that cooked up that piece of rancid filet mignon?  In my experience, refusal to compromise has led to governments that shut down, rampaging armies that blow across a distant desert and, on a more personal level, couples that explode in pain and acrimony.   Compromise is actually a sign of confidence and inner strength.  Compromise is a sign of resilience.  We all have our ideas of the way our lives should go and what we’d like others to do in order to satisfy our needs.  Those things aren’t going to happen much of the time.  Why?  Because almost always, those other people have different, sometimes incompatible needs. This comes up all the time in mediation.  That’s why mediators are so valuable.  Two (or more) people with deeply felt and important competing needs are challenged by the necessity of resolving their conflict.  How do you think that’s going to work when one or both are thinking, “To compromise is to display weakness”?

Compromise does not mean loss.  One of the most inaccurate and destructive adages I have heard (and I have heard it frequently from litigating lawyers) is that, “the best settlement is one in which both sides feel equally bad.”  Compromise does not mean you are giving up something that pains you to abandon.  Rather, it means that you have chosen to relax your insistence that every element of your collection of needs is so important that you will experience pain upon their relinquishment.  That is not true for people who can summon up the resilience to understand that all needs are not based on unbreakable principle and a personal goal may be compromised in order to fulfill the needs of the other person(s).  Compromise is not a sign of weakness.  Effective mediators are also valuable in that positions which one feels they cannot compromise, can be translated (transformed) into “interests” which can be satisfied in a variety of ways.  Positions force us to draw lines in the sand.  These positions are always, always, supported by needs and interests which can often be satisfied in ways that will allow the other person(s) to experience acknowledgment of their own needs and interests.

Compromise reflecting weakness?  Far from it.  Shame on you, Cadillac, for projecting this painful myth.  Okay, back to our regularly scheduled programming.

The Talking Stick

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During the weekend of October 24-26, I attended the annual conference of the International Academy of Collaborative Professstick.talkingionals (IACP) in Vancouver.  I was fortunate to be accepted as a speaker and received a gift which upon returning home, I opened to find a talking stick.  It is a beautiful piece of art with feathers tied to an end with a leather thong.  For those unfamiliar with the talking stick, many indigenous American cultures use this tool when a group of people are meeting to discuss…..well, just about anything.  The stick is passed around and when it is in a person’s grasp, only he or she may speak.  There can be no interruptions, side-talk or other distractions.  There is one person who speaks and the role of all others is to listen.   This process – of providing space for people to express themselves without interruption – is essential to any dispute resolution process – be it couples therapy, divorce mediation or a larger group process.   I always tell people who sit in my office – so full of anxiety about the specter of conflict that hovers in the room – that I will keep the other from interrupting so that each has a space to speak.  I have not hesitated to get up in between people if the sparks start to fly.  “You can do this – you have done this – quite well on your own.  You don’t need to pay me to do this in my office.  My role here is to keep this place safe, so if you are listening to what the other is saying and you believe it is not accurate or you need to defend yourself, please hold it and you will have your opportunity.”  This rule, together with a chiding reminder that conflict is made safer and resolvable when each person talks about their own experience, helps move a process which initially may seem frightening or overwhelming to a platform of acceptance.

The “Whuppin’ Stick”

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I attended a Washington continuing legal education workshop recently to make sure I was keeping up in the newest developments in our family law.  One of the most interesting sections involved a panel of very seasoned practitioners who also perform “mediation” servicstick.whuppines, discussing the implications of a recent appellate court decision called Marriage of Rockwell.   The Appeals Court said, in passing, that in a marriage lasting 25 years or longer the court should seek to provide the two parties a roughly equal standard of living for the remainder of their lives.  Let’s just say that lawyers aren’t real pleased with this broad rule because it both turns long running standards on their head and imposes a blanket rule that doesn’t take into consideration important nuance.  (What if Husband and Wife get married when they are 20 and divorce at 45?  Does the higher earner owe maintenance to the other for the next 20 years?  Does this mean that the Wife’s inheritance from her parents (which is considered to be her separate property and usually awarded to her, alone, in almost any state) is now up for grabs, with her husband of 25 years getting half?  What if they are married 24 years?  22?)  Anyway, while the questions about the decision will continue, it is now on the books in Washington and the “mediator” panelists talked about how they would employ this new legal authority.  (Note that I place the term “mediator” in quotes because the process employed by lawyers is more of a “settlement conference” which is a one shot, usually all-day, ordeal in which the two people are separated and the “mediator” goes between conference rooms and tries to move the recalcitrant parties closer – and then to binding agreement by the end of the day.)  One panelists felt he was being clever when he referred to the “Rockwell whuppin’ stick” and another experienced “mediator” chimed in with reference to the use of this opinion as a “whuppin’ stick.”  (As in, “If the husband is being stubborn about spousal maintenance, I can use Rockwell as a whuppin’ stick and tell him that a court could order a much greater, outrageous, term of alimony under that case.”)

What really ate at me the next day was how each of these people saw their role of getting wounded, frightened, angry, defensive and all-around emotionally challenged people to come to agreements that will impact the rest of their lives by hitting them with a “whuppin’ stick.”  The absolute essential key to a solid, durable and effective agreement is that each person enter the agreement without undue resistance.  Each must understand and accept what he or she relinquishes in the agreement. Equally important, each must acknowledge (to themselves at least) what he or she gained from the agreement.  My strongest criticism of the conventional legal “mediation” is that at the end of the day, each person will generally feel emotionally and mentally drained with a very high degree of resentment and “woulda, shoulda coulda’s” the next morning.  This risk is certainly accentuated when the settlement conference official finds a new rule of law, however flawed and criticized, to use as a “whuppin’ stick” to bring people into line and move toward settlement.

Supporting Divorce Recovery

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Writer, Abigail Trafford once said that divorce is “a savage emotional” journey.  Trafford is but one of the scores of people who have studLicking.woundsied the “divorce recovery process” over the past two decades.  Noted researchers like Judith Wallerstein and Mavis Hetherington as well as leading divorce mediators like John Haynes all agree that the period of “divorce recovery” is about 24 months.  This means that, if allowed to move through the expected steps from separation through a sense of “being okay” and free of the psychologically intense and depressing forces of divorce, most people will take about two years to complete that process.  However that caries with it a big “if.”

If people are allowed to proceed through the process of divorce and not gouge additional psychic wounds in each other in the process, most people will be through the journey in two years.  (That, by the way, doesn’t mean that they will be miserable for two years.  Most divorce experts say that the acutely painful passage occurs in the first six months.)  However, here’s my biggest beef with conventional divorce litigation.  It has been my experience (time and time again – seen throughout the 25 years I’ve been doing this work – first as a lawyer and now as a mediator and counselor) that the conventional divorce process does inflict avoidable damage on both people.  The shame of it is that these poor folks have to devote psychic energy to licking the wounds that are gouged by the divorce process. This leaves them with fewer internal resources to manage the natural progression of divorce recovery.  It will prolong the period of intense distress beyond the normal six months and stretch the entire divorce recovery process out to beyond the natural 24 months.

Divorce hurts.  It is the most stressful experience that many will ever undergo in their lives.  The process of stabilizing a new sense of self; managing the intense emotions and solving a myriad of practical challenges are daunting.  My advice: Find professionals who will help you make good decisions and support you in the tasks of this life transition who will not contribute to prolonging the pain.

The Shadow of the Law and The Culture of the Marriage

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Our goal, in any negotiation of terms of a divorce, is (in the words of a valued colleague) to arrive at a Durable Agreement.  What docontractes that mean to you?  In my view, it is an agreement that each person feels comfortable signing and comfortable with the next morning – six months later and five years later.  There are no big regrets or resentments; no “if only’s” or “why didn’t I’s…”  The agreement is understood completely – those things which I am conceding, I accept, and those things which  I am receiving, I acknowledge.  In my experience every Durable Marital Settlement Agreement should be consistent with two things: The Shadow of the Law and The Culture of the Marriage.

The Shadow of the Law is a great phrase I first came across in a seminal article about divorce mediation by Robert Mnookin and Lewis Kornhauser.   It is impossible to arrive at a durable agreement in a legal process without some basic understanding of the legal principles that are applied to the conflict.  Each state has its own set of laws which pertain to divorce – how marital property is defined and divided;  whether there will be alimony and, if so, how much and for how long; what standards are applied in making the residential decisions in parenting and how to determine the financial elements of raising children (in the child support decision).  These rules, which are found in the written laws, or statutes, which are passed by the state legislatures (usually more than 100 years ago and selectively amended since) and the interpretive decisions by the appellate courts,  reflect the public policy and values of each state.  Understanding the “shadow of the law” is not to understand what a judge would decide (because as any lawyer will tell you, this is often impossible to divine beyond a broad range of possibilities – and even then, judges have been known to issue rulings that are far beyond the predictions of the lawyers arguing their case).  It is to appreciate the policies and the principles that underlie these rules.  However, if an agreement is based on “the law,” alone, then it will be flawed.  This is because the individuals must also take into account “the culture of the marriage.”

The Culture of the Marriage is simply, what the people talked about between themselves.  What they wanted for themselves and the other person.  People enter the divorce process after a long relationship (even if it has been only two years – but usually it is far longer) with the attendant intertwining of life histories and dreams – joys and disappointments.  There were understandings that people had which were discussed and assumed.  Sometimes these understandings are not 100% consistent with what “the law” provides or what a court might decide, but they are consistent with what these people have discussed and believe is right for them.  Yet, again, an agreement based solely on “the culture of the marriage” will be flawed, because it does not take into consideration the principles of the larger culture of the community in which these people live.

Thus, any durable agreement must reflect a balance between these two critical values – the societal values reflected in the law and the personal values reflected in the couple’s history and interactions.

The Decision to Divorce

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Maybe the hardest decision in one’s life – the Decision to Divorce.  In my experience it is never a decision taken lightly.  Here’s how it seems to work in most cases.   You feel disatisfied or increasingly discouraged with the relationship.   After many arguments over the same thing, or attempts to get your partner to hear what is so vitally important to you, without success, the thought of ending the relationship begins to dawn.  Imagine a bright line boundary – on one side is “Emotional Commitment to Marriage,” on the other, “Emotional Disengagement from Marriage.”  You seem to bounce up against the boundary continually, but your commitment to your relationship is stong enough to keep you from crossing over.  It looks a bit like this  ……………….

You can go on for months or years, just bouncing up against that boundary.  You believe you have let your partner know that you were feeling desparate about your disconnection.  You know that you have tried.  Then, one day, something happens inside you.  Maybe it was another fight over the same thing.  Maybe it was just waking up one morning and looking at yourself in the mirror and knowing something has changed inside of you.  Whatever the spur – you have crossed over the boundary…and this boundary that for a moment seemed open enough for you to pass through has closed up.  It has become an emotional, impenetrable wall.   Now your process looks something like this:

When I start the process of divorce mediation with a couple, one of the first things I want to determine is whether one of the partners has crossed over that line.  Almost always this has occurred.   On the infrequent occasions it hasn’t, a referral to a couples therapist is always made. 

A really important lesson I have learned over the years is that once a person has crossed over that boundary they have made a decision that is unchangeable.  If you are the partner who feels left, you may experience a wide range of wrenching emotions – grief, fury, confusion, a sense of betrayal.   My recommendation is to get help with those emotions.  Seek out counseling.  Read helpful books, like Bruce Fisher’s excellent, Rebuilding.  Your life has changed – and while you may need to process through the trauma  and the deep sense of injustice you may feel, once your partner has crossed over the line they will not cross back.  While you may be drawn to do whatever you can to try to get them to do this, those efforts will amost certainly be fruitless and (here’s the important part) they will cause you deep and lacerating pain and frustration.  My hope for those who have been left is that you find the resources you need to manage the pain and direct your energy to caring for yourself and slowly discovering your path to recovery.

The Marital Dance of Conflict

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Our fights sometimes have the feel of a couple of siblings in the back of the car on an endless road trip. “Johnny, Susie, stop fighting!” The inevitable response is something like: Susie – “He hit me first!” Johnnie – “I did not! She kicked me.” Susie – “That’s because he took my pencil.” Johnny – “Did not!” Susie – “Did too!” Etc. Now this is not to say that the hurt and anger we feel when we are locked in painful conflict with our partner is child-like or immature. Quite the contrary – it seems to go to the core of who we are sometimes. That’s not the point here. If you look at the above scene, you’ll see a circular argument in which each person believes the other person started it…that the other person is the cause of the distress. Of course, the other person thinks that it started with you. In law, partners who are locked into this conflict will go and hire lawyers, who in turn will try to convince a judge that their side is right and the cause of the problem is the other person. I promise you, that in every case that a judge says one person is the cause of the problem, that decision will never, ever, ever convince the other disputant. He or she will just feel screwed – unheard – misunderstood. For good reason, too, because our ongoing conflicts are ultimately circular in causation. We ultimately react to the other person who ultimately reacts to us. By the time the circle is joined, the conflict has a life of its own and the start is about as obscure as trying to find the missing link in the fog of antiquity. The key isn’t who is right. Rather the key is, how can we disengage from this cycle and stop hurting each other and get back on track. Helping with this often difficult task is, by the way, one of the great services a skilled marital therapist can provide.

Staying Out of Court

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courtThere really is no such thing as “your day in court.” The desire (or fantasy) that if only we had a chance to tell our story, a judge would understand the justice of our cause and the right outcome will result. I say to those people, “Forget about it.” First of all, if there are two people in a legal dispute, both of them feel that justice is on their side. The folks in the robes making the decision are going to take the argument of the other person very seriously. For years I have heard people in courthouse hallways after their day in court stunned at the decision. Sometimes they are shocked because they are so polarized from the other person that they can’t imagine anyone taking their spouse seriously. Other times, they lose in court because the judicial officer was overworked, impatient, biased, irritated at some inconsequential thing they or their lawyer did or simply weren’t paying attention. Many hearings in divorce are early in a case and seem over before they begin. You only get to tell your story in 20 pages and your lawyer only gets to talk for 5 minutes. Next time you opt for having a court decide your future, rather than sitting down with your spouse and a neutral mediator, you may want to think again.

Divorce as a Process Over Time

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Divorce is a process over time. It’s not an event. Many experts who have studied the divorce process believe that to fully recover from the divorce and see the world through truly renewed eyes may take as much as two years. Abigail Trafford, in her excellent Crazy Time, believes that the worst part of the process occurs in the 6-month period after separation. That’s when people may feel that their world is completely out of control. However, once we get through that wretched stage, while the going is a bit easier, it will still take a long time to: See ourselves as truly separate from our spouse; Be able to even think about committing to another relationship; Stop ruminating about the marriage – what you did wrong, what they did wrong; No longer feel triggered by what our spouse does; Actually accept the notion of our spouse with another partner; Honestly feel happy again. I think the most important message that a divorcing or depressed person can receive is that there will come a time when you will feel good again. It won’t happen tomorrow, next week or even next month – but it will happen in due course. Statements like that may be no more than seeds planted in another’s mind and heart. They will germinate in their own time. It may be the greatest gift we, living outside the world of the suffering, as we do, can offer the dispirited.