The documentary Divorce Corp, scheduled to be released in January, will undoubtedly generate conversation about the horrors of divorce litigation. Take a look at the trailer and other clips available on YouTube. Then talk to your friends and loved ones about Collaborative Law and mediation, viable alternatives that enable couples to stay out of court, save money, and avoid the indignities, the injustice, and the harm to the children of adversarial divorce.
Start here:
Divorce Corp: The Trailer
This week I received from a friend a blog post by Tom Erich, a writer, consultant and Episcopal priest (see www.morningwalkmedia.com). His specific topic is conflict within church communities, but it seems to me that his insights are applicable to conflicts of all types. Of course, I thought of my divorce clients, all of whom are working their way through marital conflict. My clients have chosen mediation or Collaborative Law as means of negotiating their divorce agreements, and so they have rejected adversarial approaches to divorce in favor of working together as much as possible to reach mutually satisfactory solutions. But still, there are conflicts that need addressing — the shadows of those that doomed their marriages, and those that arise in the process of divorce negotiations. Those conflicts can be discouraging, and often my clients express the desire to forget or avoid them if possible. Sometimes, conversely, those conflicts ignite passion or self-protectiveness, and clients may form rigid adversarial positions. But as Erich suggests, conflict may also inspire creativity, and may offer an opportunity for achievement. His perspective might help us all develop a more honest and productive relationship to conflict:
There is nothing inherently unhealthy in conflict. Like failure, conflict is a sign of life and can lead to further vitality and accomplishment. . . . In a healthy system, conflict provides a lively place to deal with change, failures, errors, and personal shortcomings. An unhealthy system, by contrast, stores up negatives and weapons. In an unhealthy system, there is no search for perspective, no deep thinking, no forgiveness. Just scorecards: Did I get my needs met? Did I make you pay for wounding me? Did I win or lose?
As I work with clients, I will keep in mind Erich’s distinction between healthy and unhealthy systems, and will try to create an environment for our collaborative team meetings or mediation sessions in which all feel safe enough to experience conflict honestly, openly, and productively; without either avoidance or scorecards; and with respect, caring, and forgiveness.
If you are divorcing, undoubtedly you have had frustrations during your marriage. You might see divorce as a way to break free from those difficulties. And if there has been a power struggle between you and your spouse, you might be hoping that you finally can “win” the battle. You might be hoping that this time, you will be able to hold the line, keep from folding, finally be heard, finally be vindicated.
But is trying to “win” worth it in the end? Too frequently in litigation, everyone loses, especially the children, who internalize the strife between their parents. And the battle will likely bring out the worst in both you and your spouse, recreating those very dynamics that you are trying to get away from.
And when it’s over, what then? What will happen when you and your ex-spouse need to get back on the same team to deal with something in the lives of your children? Will you be able to do it? Can you be effective co-parents — providing the love, nurturance, stability and consistency your kids need – if you’re at each other’s throats?
So, what to do?
There is a school of thought that ascribes to mediation and to Collaborative Law the potential to guide former spouses to a place better than the one they inhabited during marriage. The hope is that a dispute resolution process facilitated by one or more skillful, empathic professionals has transformative power. Maybe it does. I hope so. I hope that a well-done divorce (a compassionate, dignified one as opposed to a contentious, disrespectful one) can help a couple disentangle in such a way that two healthy individuals emerge with much of their respect and affection for each other intact, so that, if they have children, they are able to create a new parenting partnership that enables their kids to thrive.
Even if this hopeful view is too rosy, there is still reason to commit to mediation or Collaborative Law. If the two of you cannot do it alone (and if you could, would you be divorcing?), then would you rather do it with the professional support that helps you stay positive and productive, or would you prefer to dig in and fight it out? Neither approach is easy. A divorce is difficult, any way you do it. When you are beginning the process, take the opportunity to choose your process wisely.
When examining witnesses at trial or taking depositions, lawyers ask questions, right? But what kind of questions are they asking? Are they information-seeking questions? Are they curious questions?
No. They are questions to which the lawyer already knows the answer, questions designed to elicit evidence, including admissions of bad behavior.
If you look up the verb “question” in a thesaurus, you”ll see as synonyms “interrogate,” “cross-examine,” “challenge" and “dispute.” Why? Probably because questions are used so frequently in our culture not to gather information, but to entrap. Not as an expression of curiosity, but as a route to a particular goal.
Do you ask your spouse or your children this type of question? If you do, for what purpose? Are you trying to gain an admission, win an argument, teach a lesson? What effect does your questioning have? Do you get calm, honest, informative answers? Or do you face resistance? Do problems get solved, or do tension and conflict increase? Do you feel better? Does your spouse? Your child? (Note that my questions aren’t really curious questions either. I have answers in mind.)
If your spouse or child responds defensively to you, consider whether the nature of the question is a root of the problem. If you are trying to entrap, that intention will be clear, and you are not likely to receive a calm and helpful answer. Nobody wants to feel cornered or manipulated.
If you’re experiencing discord at home, work on your questioning style. I highly recommend two books by Sharon Strand Ellison: Taking the War Out of Our Words, and Taking Power Struggle Out of Parenting.
It’s Not Just Financial “Settlement” Anymore…
We call them “financial specialists” or “financial neutrals.” They are Certified Divorce Financial Analysts (“CDFA”) and they are at the core of the Collaborative Law team. The more I do Collaborative Law cases, the more I appreciate the CDFAs and the more I believe it is their function that for many couples most differentiates this process from a more conventional divorce.
Why are they so important? Imagine the financial anxiety that surfaces for many (all, in my experience) who are ending a marriage or domestic partnership. For most, the marriage or partnership has been the most significant economic relationship of their lives (excluding only their dependence on their parents as children). The questions that confront them now seem to reach into every corner of daily living:
Addressing these questions thoughtfully, assessing the needs (emotional as well as material) of each spouse, analyzing the numbers, projecting the future. All this can be done in an atmosphere of open-minded reflection and serious, compassionate problem-solving. It does not have to be with a focus on scarcity and loss. Rather, it can be done to make the most of available resources and ensure as much financial security for each spouse as possible.
In my experience, the work in addressing these financial questions is more satisfying if a CDFA is part of a professional team. Attorneys, as good as we may be, are not (usually) financial experts. And even when our financial competence is high, we are not the most efficient laborers at the financial oar. When two attorneys represent two spouses without a neutral professional synthesizing the financial information, we necessarily duplicate efforts. And our two minds rarely reach as far as the three minds of two attorneys and one CDFA, and are rarely as creative as the group – the spouses and the professionals – together can be.
