Tag Archives: Mediation

What are Your Real “Interests” When You Divorce?

Posted on by

Lawyers are habituated to getting to the bottom line.  Extraneous details are disregarded as dross and distraction.  Of course, typical of the breed, the average lawyer will look to monetary outcome as the overriding measure of this bottom line.  In personal injury cases, for example, it is all about the amount of settlement or verdict (if settlement is not achieved).  This “monetization” of outcome is repeated in just about every kind of legal dispute.  This focus applies, to often devastating effect, in the family law arena, as well.  To be sure, there are lots of financidepressedteenal elements in a divorce resolution, each of which a person can get more of, or less of.  How much alimony will be paid?  Working husband wants to pay only $750, while long-unemployed wife says she needs $2,000.  Perhaps the people have agreed that the wife will be awarded the family home.  Predictably, she will obtain an appraisal which marks its value at $400,000 and her disputing spouse will counter with his $650,000 appraisal.  In Washington state, where community property is divided in a “fair and equitable,” rather than equal manner, the person who has little current earning capacity will push for 60% of the joint property while the employed spouse will seek a 50/50 division and inch up slowly to agreeing to 51%, then 52%, etc.

Family lawyer are inured to the notion that a client’s interests are financial – and while that is a huge part of any divorce client’s concerns, it is by no means an exclusive, or even primary interest.

It has long been recognized that the one overriding variable which will predict a child’s well-being after their parents’ divorce is the degree to which that child is shielded from parental conflict.   Bear in mind, this is not about parents choosing not to scream at each other in front of the child – that behavior is never justified.  Nor is any negative statement about the other parent to, or in front of, the children.  Yet a more common, and far subtler harm can be inflicted if the parents fight like warriors over a divorce settlement so that “he won’t win this time, like he always did” or “she won’t get away with this.”  The battle of wills in even a moderately difficult divorce, in which two adults struggle with the urges and needs of a younger psyche – as if the other person is more a parent than another vulnerable adult, when coupled with the fear attending almost every severing of this intimate bond, will often lock people into a miasma of pain and resentment, which simply cannot be hidden from the children.  Be they adorable 5 year olds or teenagers struggling to find their identity, any set-up in which loving Dad will be experienced as a betrayal of Mom and loving Mom will cause pain to Dad sets up an intolerable conflict of loyalties for children who almost always love each parent deeply and desperately.  Children will almost always crack under the strain.

I often wonder how a parent, who dug their heels in for that extra $30,000, would respond to this question, after seeing their beloved child succumb to depression or alcohol/drug abuse or premature sexuality or behavior problems in school or poor grades: “If you could pay $30,000 to someone right now who could make your child okay again, would you do it?”

That’s why framing interests of divorcing people in terms of dollars or minutes of residential time with a child misses the biggest, non-monetary, interest of them all.  We need to keep that in mind as lawyers and the divorcing, proceed down this shattered, and shattering, path.

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

Posted on by

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

Posted on by

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”

Posted on by

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.

Lawyers and Personal Conflict

Posted on by

angry.couple.1I like lawyers.  Some of my oldest, dearest friends are lawyers.  It’s really the same thing that has me coming back year after year to teach counseling skilargumentls to law students.  Lawyers, as people, are smart, funny, generally very positive and full of life.  This is even more so for law students – with their youth and energy.   Yet one thing has always bemused me about lawyers – They are a conflict resolution profession that hates interpersonal conflict.  Take mediation, for example.  The classic approach to mediation is to sit the disputing people down together and have them talk to each other.  The mediator’s job is to help this process by creating a safe environment where each person will have their space to express what’s on their mind and help in phrasing it in a way that is both true for the speaker and also said in way that can be heard without defensiveness.  It is almost guaranteed that if we are accused of something (or feel we are being accused) we will automatically become defensive and the speaker will be hugely frustrated at the fact that they are not being heard.  This is just one of the realities of interpersonal conflict resolution – helping people speak to each other in a productive fashion.  Lawyers, however, find the possibility of sitting in the presence of emotion that can become hot and possibly escalate to be too potentially destructive, so they choose, almost invariably, to separate the people (or groups) in argumentdispute.   This is kind of consistent with one of the most poignant elements of lawyers’ discomfort with conflict – how they fight at home.

One of the real problems with legal training is that lawyers feel they have to “win” an argument.  Often by “winning” this means being able to explain their position either clearly enough or with enough supportive evidence (and examples from the past) that their partner will ultimately relent and admit that they are right.  So how does one deal with the reality that you don’t “win” marital arguments?  When what is at stake is each person’s deepest needs, fears and vulnerabilities, “winning” seems beside the point.  It certainly won’t get us what we want, which is peace and connection.  I wrote a blog post about a year or so ago about the two different conversations couples have when they are in conflict.  The one that we try to win is the unwinnable one.  How’s that for a conundrum?  The way out of it, I think, is to understand that no relationship will touch on our deepest needs, fears and vulnerabilities like our intimate partnership.  If we are going to have these feelings, this is going to be the place.  Learning to understand them, express them, listen to them and connect with them, while often uncomfortable, is the way out of that maze.

Supporting Divorce Recovery

Posted on by

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

Posted on by

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.

When Is It Time to Let Go?

Posted on by

I attended a wonderful conference on brief therapy a couple of years ago and concentrated on the folks who were presenting about marital/couples therapy. Thus inspired, I had dinner with an old friend and his second wife (also, now, a dear friend). Their union was very connected and sweet, and definitely had benefited from years of work. (They say a good marriage is work and whoever “they” are, you’d best believe them.) I had listened to my friend describe his first marriage and a mismatch which had produced his beloved daughter. The way he described the relationship, I had to come away with the belief that it was a good thing he had gotten divorce. So over dinner, I regaled him with my new-found commitment to the idea that any marriage can be saved and that divorce is an avoidable trauma – necessary only in cases of abuse (emotional, physical, sexual). My dear friend looked at me like I was nuts. He assured me that his first marriage would have resulted in years of despair for (probably) his wife and (certainly) for him. They were young. They were mis-matched.
In my years of helping people disentangle from painful marriages, I know very well that for one partner, the time comes that their emotional commitment to the marriage is simply gone. At some point there is no reviving a person’s commitment to a marriage. That person knows that the marriage is over in their heart. It is a very painful truth.
While it is definitely possible to stop this erosion of emotional commitment to a marriage before that line is crossed – once that last step is taken my observation from years of working with divorcing people is – there’s not going back. Sadly – wrenchingly – it’s over. There comes a time when our energies need to shift from holding onto a marriage that has emotionally ended for one person to recovering emotionally from the grief and loss of this transition and finding a new path that will, over time, bring fulfillment and love.

Staying Out of Court

Posted on by

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

Posted on by

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.