Divorce with Love

The very notion of “Divorce with Love” may seem radical, perhaps even nonsensical. After all, love is difficult to define. Everyone has a different view of what it means to love another, and each of us fails to live up to our ideals, at least some of the time, particularly in our most intimate relationships.

Divorce would seem to represent the very height of that failure. So if two people couldn’t live together in love, how could (and why should) they divorce with love?

My perspective – which has developed through years of working as a mediator, collaborative attorney, and assisting in other forms of non-adversarial conflict resolution – is that love, more than anything, is a willingness to see through the eyes of another.

Please don’t misunderstand. Seeing through another’s eyes does not necessarily imply agreement. Everyone sees the world differently and each of us is entitled to our own unique perspectives. In itself, this is not a problem. People can have extremely different, even seemingly opposite, views and still experience harmony. Conflict occurs when we don’t trust another’s intentions, and divorce presents innumerable opportunities for that sort of mistrust to arise.

The Nature of Conflict

When going through a divorce, people will often ask, “What happened to the person I married?” Unfortunately, there are times when one has truly misjudged the character of another only to discover, upon divorce, that the person he or she loved never really existed. When one’s spouse is not acting in good faith, non-adversarial conflict resolution does not work. That’s when conventional divorce may be necessary.

Fortunately, though, most people have not failed to see the true nature of their spouse; the person once loved is still there. He or she only seems to have disappeared because the process of estrangement has led to a series of misunderstandings. Here’s how those misunderstandings arise:

We assume we know why someone acts the way they do based on what we would do in that same situation. Then, based on our assumptions about the other’s motives, we make judgments. At those times when the other person is acting in ways we cannot imagine ourselves behaving, our judgments are likely to be harsh. People often arrive in my office saying things like, “She’s selfish” or “He’s a jerk.”

The good news, however, is that our judgments are typically inaccurate. I say this having worked with hundreds of couples. At the core of most every dispute are misunderstandings that become the source of negative opinions and judgments.

Tragic Expressions

Marshall Rosenberg, a prominent advocate for the peaceful resolution of conflict, teaches that judgments are tragic expressions of unmet needs. Needs, according to Rosenberg, are universal. In other words, all people have them. They can be material, such as the need for food, air or sleep; and they can also be emotional, such as the need for respect, empathy, independence, love, humor and the like.

We’re born with a capacity to express needs in a manner that works. For example, when a baby needs something, he cries. Few parents fail to understand that behind the child’s wail is nothing more than a plea for understanding. Only an extremely immature or emotionally damaged parent would think the child was behaving maliciously.

However, as we get older, effectively expressing what we need becomes more challenging. Few of us have been taught to pay attention to feelings (our own, let alone those of another) and even fewer have learned to be sensitive to the needs that give rise to those feelings. If we were aware of what we needed, we might communicate in a manner that resulted in those needs being met. But when we’re not even aware of what we need, we have no language to ask for what’s wanted. And it’s our frustration over not getting our needs met that causes us to form judgments about those who appear to stand in our way through their seemingly unreasonable actions.

Stumbling Toward Conflict

Here’s an example: Let’s say my teenage son returns home from college at the end of the fall semester, walks into the house and goes straight to the kitchen without acknowledging my presence as I relax in the den. Perhaps, for me, that triggers sadness or anger. Underneath those feelings could be needs for respect, shared values, connection and/or love, to name but a few possibilities.

Now let’s take a moment to look at this from the hypothetical perspective of my son. Perhaps he wasn’t expecting me to be home so early in the day and, in the twilight of a Bellingham winter afternoon, didn’t notice me lying in the recliner under a blanket with a book. Perhaps he was so wrapped up in the idea of seeing his girlfriend for the first time in months, he wasn’t in a place to notice much of anything. Or maybe – teenage boy that he is – he was so hungry after a long trip, all he could think of was the inside of the refrigerator.

Were I to call him over and say, “When you entered the house and walked past me without saying hello, I felt sad and hurt because I’ve missed you and really wanted to connect,” there’s a good chance he might hear my words without feeling threatened. In that situation, perhaps he’d respond with something like, “I’m sorry, dad; I didn’t realize you were there” and then give me a hug. In other words, since I’ve expressed my needs clearly, without blame or judgment, there’s a reasonable chance my son will respond in a way I’ll appreciate.

On the other hand, were I not aware of my feelings and needs, I might judge my son a selfish, spoiled brat. Rosenberg regards such judgments, in themselves, a subtle form of violence. From that place of blame, there’s not much chance I’d approach him with words likely to be effective in getting my needs met. I might say something like, “Young man; come here! Am I invisible to you? That’s no way to treat your father!” In this scenario, my chances, percentage wise, of receiving the respect or love or sense of connection I’m seeking have just diminished to something pretty close to zero.

Judgments are tragic expressions of unmet needs, according to Rosenberg, because we form them only when we’re already sure we’re not going to get what we want, and the judgments themselves make it all but certain we’ll be right.

Listening Beyond Words

There’s an old saying that goes, “You’re speaking so loud, I can’t hear you.” As a mediator and collaborative attorney, my focus is on helping people listen beyond the surface of their spouse’s words to the deeper truth of what the other is really trying to say; to assist each in hearing and understanding the feelings and needs that hide beneath the other’s demands and judgments.

As this process unfolds, people are surprised by what they discover. “You’re a jerk” may really mean (for example), “I’m afraid because, if you’re not willing to help me, I don’t see how I can support myself.” “You’re selfish” may mean “I’m sad and frustrated because it seems you’re discouraging the children from wanting to spend time with me.”Few of us are aware of what we’re truly wanting when we lash out. Even fewer are aware of what another is trying to express when that person uses words that seem harsh, punishing or critical.

As you can perhaps imagine, when one authentically speaks the truth of what he or she wants, it’s far easier for the spouse to hear those words with openness and compassion. After all, “I’m afraid” or “I’m sad” is not threatening, whereas most of us feel defensive when someone seems to reproach us with negative judgments. Fortunately, once we’re aware of deeper feelings and needs – our own as well as another’s – judgments fall away.

When people see and recognize feelings and needs, they can move to a place where it feels authentic to say something along the lines of, “What you’re saying makes sense.” In resolving conflict, those simple words make a huge difference. We all need to feel not just heard but understood.

Please keep in mind that “You make sense” does not necessarily imply agreement. It doesn’t mean, “You were right about everything.” Rather, it means “I get where you’re coming from. I understand why, to you, things look the way they do.” When each spouse can honestly express understanding and empathy for the other in this manner, miracles happen.

Bridges of Trust

Working together in the ways I’ve described builds bridges of trust. Once people acknowledge and express appreciation for each other’s point of view, conflict tends to melt away – often effortlessly. Grudging compromises that make no one happy are rarely necessary. The spouses begin to identify creative solutions that neither could have fathomed earlier – solutions that meet everyone’s needs – because now, for the first time in a very long time, they understand each other. They may even discover themselves willing to compromise on issues that, before, had seemed completely intractable.

As people put together agreements from this place of understanding and empathy, there’s a “buy in,” a moment of transformation that occurs when each takes ownership of the settlement which they, together, have authored. From this point forward, everything looks different. Unlike orders imposed from on high by a judge or arbitrator, or a settlement into which spouses are strong armed by their attorneys, there’s neither resistance nor resentment toward agreements that people choose freely for themselves.

It’s unlikely that ex-spouses who have reached settlement using the process I’ve described will later wind up in court, either to enforce or revise their agreement. If something needs to be modified as the children mature or circumstances change, the former husband and wife will likely be able to work together to reach a new agreement. This may occur with the assistance of professionals, but just as likely between the parties, on their own, prior resentments having been cleared away and replaced with mutual respect and understanding.

Keys to the Kingdom

This process works when each party is both willing and able to act in good faith. By “good faith,” I mean the disclosure of all relevant information (such as income and financial documents), the placing of a high priority on the needs of children, and the intention to discover mutually beneficial agreements (even if it’s hard to imagine, at the outset, what those agreements might look like). In my experience, most any dispute, no matter how entrenched it may seem, can be resolved so long as these basic ingredients are present and the parties are guided by someone – or a team, in the case of Collaborative Divorce – skilled in the facilitation of conflict resolution.

In summary, the willingness to listen to another in a way that reveals his/her feelings and underlying needs, then share authentically one’s own feelings and needs, and be guided to a place where each can see through the eyes of the other is, in my opinion, to divorce with love.

Common Themes in Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is the term used to describe various processes to resolve conflict peacefully. It applies to those couples who sit down across the kitchen table and come up with their own agreement, to those who reach settlement with the help of a mediator, and to those who get there through the collaborative divorce process.

Following are a few conditions that must be present for any form of ADR to create a reasonable, lasting agreement that addresses the relevant issues:
1. First, full disclosure. It’s important that both parties have a thorough understanding of all assets, debts, information pertaining to the well being of the children, sources of income (including potential sources) and anything else relevant to a full and fair assessment of child custody, parenting time, division of property, spousal maintenance, child support, etc.
2. Each spouse must have an adequate understanding of his/her interests and needs (as well as those of the children). It’s also a good idea for each spouse to at least understand how a court would view the case, though they are not locked in to necessarily agreeing to terms similar to those which a court would order absent agreement of the parties. (One of the advantages of ADR is the freedom to make choices that go beyond anything the court would consider on its own.)
3. Good faith. This means that both spouses are open to discussing and considering all options. Neither is using the ADR process to prevent certain possibilities or to force a specific, predetermined outcome on the other.
4. If there’s a history of domestic violence or a dynamic in which one spouse is dominant, then this dynamic must be recognized and carefully, thoroughly addressed. Otherwise, what looks like agreement may, in fact, be capitulation. Sometimes collaborative divorce provides the necessary structure to address domestic violence since both parties are represented by their own attorneys. In some cases, additional resources must be brought to bear, such as coaches and/or the child specialist. And then there are cases where a power imbalance necessitates a litigation approach.
The bottom line is that it’s important for all issues to be fairly and reasonably addressed in light of all relevant information. ADR is not appropriate if either spouse is misusing the process to hide assets, hide income, incur debt, harm children, enforce his/her will on the other, drag out the divorce, prevent it from happening, obtain revenge or otherwise damage the other. ADR works only when both spouses are open to exploring options in a spirit of fairness. It’s not necessary for them to be in an easy or harmonious space. They may present with anger, fear, distrust or other challenging feelings. Well trained mediators know how to help people navigate conflict. The spouses must simply be willing to engage in good-faith dialog. If either spouse needs yet more support than mediation can offer, collaborative divorce provides for each to have his/her own attorney and also, when appropriate, for child specialists, coaches and financial professionals to be retained.

Why You Should Want Your Attorney to Play Nicely

Divorce clients, being unfamiliar with litigation, often arrive in my office convinced that the best attorney is the most aggressive, even the nastiest, lawyer they can find. In my experience this is rarely true.

Attorneys who play well together can help their clients resolve cases efficiently, by which I mean obtaining the best possible result at the lowest possible emotional and financial cost. Such attorneys can work together to help clients not get stuck in whatever emotion they’re feeling in the moment but, rather, help them to see the broader picture and address underlying needs. If the lawyers like and trust each other and communicate well, it’s so much easier to support the family in staying in the shallow end of the pool.

People sometimes worry that attorneys who share good rapport will somehow work together to run up legal fees or otherwise place their own interests ahead of those of the clients. I do not doubt that such things happen. However, in my almost 18 years of legal practice I’ve never seen it. Most attorneys take seriously their duty to place the client’s needs first. Problems arise, however, in differing understandings of what that means. In my view, highly adversarial attorneys are more likely than non-adversarial ones to run up costs in service to the needs of their own egos, most often their need to be seen as highly competent. However, they are rarely conscious of this. Non-adversarial attorneys who are skilled have had to spend years learning to see how and when their egos trip them up and have learned the importance of getting out of their own way. That doesn’t mean they do it perfectly all the time. But if the intention is there to be self-reflective and aware, one is far more likely to see when he or she is getting caught in his/her own need to be seen (by others but typically, even more, by oneself) as competent. Once one sees it, the jig is up and any decent human being (which, as stated above, believe it or not, most attorney are) is going to return the client’s needs to front and center.

Of course every case is different and so the skill set required of the attorney varies from one situation to another. No lawyer is perfectly suited to every case. But even when opposing counsel has a narrow view of what it means to be a good attorney and believes that advocacy is essentially obnoxious, it’s still usually best to be represented by an attorney with a broader, wiser approach who is open to creative problem solving.

Here’s why:

  1. Fighting fire with fire only results in ever-more destruction. The best antidote to fire is water. It’s important to have an attorney who is not afraid to stand up for you in court if that’s necessary. But even there the most successful attorneys typically take a measured approach. Judges are rarely impressed by attorneys who posture and make outlandish claims. In fact, such tactics can hurt the client’s credibility in the eyes of the court.
  2. Cases have twists an turns. Perhaps this moment requires a tough approach and a trip to court. As things unfold, an opportunity to work together toward settlement may open. If both attorneys have a fundamentally litigious approach, it’s far more likely such opportunity will be missed. Working together takes two. Therefore, it’s good if one of the attorneys is open to such an approach and just one of them needs to come around to the wisdom of such an approach.
  3. When it comes to tangible resources, there’s only so much to be divided. This is true for income, property and time with children. The more one spouse gets, the less the other receives. This is true regardless of approach. However, when attorneys throw hand grenades, it becomes ever-more difficult to reach lasting agreements that address everyone’s needs. It’s easy to get sucked into a battle that one never intended and that poisons the relationship between spouses. After that, they’re somehow supposed to raise their children together. Quite often, the bad feelings persist long after the decree of dissolution and the parenting plan have been entered.
  4. People often ask if divorce hurts children. My response is it’s never easy for kids, but most are resilient and will emerge largely unscathed if the parents divorce well, with mutual respect and compassion for each other, and if they work to tune in to the experience and needs of the children. Most important, the children must know that no one is divorcing them. They need to know that mom is still mom and dad is still dad, and that each parent wants them to have a close, loving relationship with the other parent. Of course there are occasions when a mom or a dad is toxic and, in those rare instances, it becomes most important to protect the child. Fortunately, such cases are rare. What’s not rare is for a parent’s view of the other to be colored by the experience of the divorce itself. For this reason, it can be really important to obtain broader perspectives from wise professionals (such as non-adversarial attorneys, child therapists, collaborative child specialists and coaches, etc.). Here too, attorneys working together to get to the truth of the matter can help clients arrive at the best possible outcomes. This may mean helping the spouses find the necessary emotional support and/or child-development knowledge to create a foundation from which they can place the needs of the children first.
  5. Since attorneys rarely work for free, you and your spouse wind up cutting your lawyers in on the finite pool of financial resources available to the family. Money that could better be devoted to a child’s college fund or to buying a new home or car or even a much needed post-dissolution vacation instead goes to the “zealous advocates.” Unless one spouse is acting in bad faith by harming a child, hiding assets, hiding income, running up debts, harassing or hurting the other spouse or in some similarly odious manner, this is not a good use of a family’s resources.
  6. Litigation is not fun. In fact, it’s extremely unpleasant. If you need to go there in order to protect your children or to protect an important interest of your own, that’s understandable. That’s what the court is there for. But to go before a judge for any other reason — such as (for example) to extract revenge, to prove something to the children, to achieve “justice,” or to avoid responsibility for the outcome — is, in my opinion, insane. I say this because, while you may make your spouse miserable, you and the children will be miserable too. In fact, your children may be permanently scarred. So the court should be viewed as analogous to the hospital emergency room — a place that’s painful, terrifying and expensive; and, if you need it, thank God it’s there.
  7. What are your memories worth? In an adversarial divorce, the well of positive memories is typically poisoned. So much so that people will often swear they never loved each other and never enjoyed each other’s company. Memory is not objective. In fact, memories get rewritten every time they are accessed. However, we’re not aware that we’re constantly rewriting them. Thus, it’s easy for them to shift and shift and shift, until everything that once was has turned to dust, not just in the present but also in our recollections of the past.
  8. What is your personal dignity worth? Adversarial divorce can have the feel of a public proctologic exam, as each spouse’s weaknesses are examined in detail in a public setting and in a permanent public record. Most often, both spouses will find friends and family taking sides. That means you’re likely to lose connection with people you’ve cared about and who have cared about you. It’s far easier to preserve relationships when both spouses are working together in good faith to find agreements and solutions that meet everyone’s needs.

This month’s Washington State Bar Association magazine, “NWLawyer,” ran an article that touches into some of the reasons you should want your attorney to play nicely. Titled, Motherhood Made Me a Different and Better Attorney, I found it paralleled my experiences as a collaborative attorney in learning, over time, what it means to represent clients wisely and effectively.

The author writes:

In July 2013, I lost my beloved five-and-a-half-year-old German shepherd mix to cancer. The week after I had to put him down, I had discovery responses due and client meetings, but I was an emotional mess. Instead of keeping this devastating loss private, I was honest with my clients about my loss when I had to cancel meetings, and with opposing counsel when I requested an extension. Opposing counsel was kind and empathetic; he also shared his own experience in recently losing a beloved family pet. My honesty with opposing counsel created a closer bond, and allowed us to communicate about our case more openly, which ultimately benefited my client when the case settled.

She also writes of how this new perspective benefits both her clients and the larger legal community:
While I understand litigation is naturally adversarial, and that we have a professional obligation to be zealous advocates, I do not believe that unnecessary posturing and aggression has ever benefited my clients. Having amicable and honest relationships with opposing counsel, on the other hand, not only better helps clients, but also improves the legal profession’s integrity. 
However lawyers gain this sort of perspective — whether by becoming a parent, learning to practice collaboratively, suffering a painful loss, deepening their spiritual practice, going through a nasty divorce, or in any other manner — it is, in my opinion, an essential insight if one intends to serve clients well.
Whatcom County is a small legal community and, thus, a great place to practice for those who want to do it with integrity. One’s reputation matters here. There is no anonymity. If an attorney is not professional, word gets out. Conversely, everyone knows who the hyper-aggressive attorneys are. Unfortunately, in our essentially violent culture, clients and their friends and family, not knowing any better, will often think it best to retain that sort of lawyer. Though there is a place for scorched earth litigation, in my opinion it’s rarely in the arena of family law. If one is suing Monsanto or some other huge corporation, I support going for the jugular. After all, red ink may be the only message that causes an amoral entity to alter its ways. But when dealing with the mother or father of your child, or — even without children — when dealing with someone you’ve loved and cared for, nastiness is rarely the wisest or most beneficial approach.

The Range and Breadth of Mediation

These Articles were published in the Whatcom County Bar Journal. Though written for the legal community, I’ve linked these articles because mediation is a broad field containing a whole range of styles and approaches that differ enormously. The style selected can have a huge impact on the likelihood of achieving settlement, the quality of settlement and the ease or difficulty of the experience. Therefore, this is really important information for spouses and other parties to family law cases to consider carefully.

Part one describes the types of mediation. Parts two and three will outline the strengths and weaknesses of each type of mediation and make recommendation for achieving best outcomes.

The Range and Breadth of Mediation – Part I

The Range and Breadth of Mediation – Part II

The Range and Breadth of Mediation – Part III

Anatomy of a Happy Ending

Following is an anecdote from a real dissolution of marriage. It’s intended to illuminate the way a mediated or collaborated case can unfold when all goes well. In the context of my last three-part article on the various approaches to mediation, what’s set forth below is an essentially transformative model. All three of the approaches detailed previously – evaluative, facilitative and transformative – can be used in both mediation and collaborative settings. I have of course omitted or changed identifying details to preserve confidentiality.

This was a collaborative divorce in which I was involved some years ago when I practiced in Tucson, Arizona. I represented the husband. The parties had plenty of money and neither was particularly materialistic. The husband had been successful beyond his dreams. Even though they were well off, they could have resolved the financial issues on their own. But they had a three-year-old daughter and were on the brink of hiring the most aggressive attorneys they could find to litigate parenting time. The mother was offering the father two days a week. The father was insistent on three days a week. Any suggestion of splitting the difference would have been met with outrage. Each expressed a willingness (initially bordering on eagerness) to litigate. Each expressed a desire to be “vindicated” or essentially die trying. My client said he could live with the result so long as he knew he had given it his all. It was a challenge to help him see that such an approach was likely to end badly. I’m sure the same was true for the wife. In fact, it was probably even harder to guide her to collaboration because on the surface, she appeared to have the better case. These two were really caught in their initial positions: three days a week versus two. If they were to settle collaboratively, we would have to delve into the interests beneath those positions.

As the attorneys helped guide discussions in a series of settlement meetings, the deeper (and as yet unexamined) interests slowly emerged. The father was eventually able to articulate that when his family was still residing together, though it was difficult to come home from work given his sadness over the emotional distance within the marriage, their daughter was always thrilled to see him. Her smiling face and eagerness to jump into his arms was like a ray of sunshine. If he came home after she was asleep, it was a joy to stand in the doorway of her bedroom and watch her slow, steady breath and angelic face.

Since the separation, his weekends with their daughter were wonderful, but for the five days between visits he was coming home to an apartment that he experienced as empty, dreary and lifeless. He had waited a long time to have a child and felt it unlikely he would ever have another. He was heartsick over the sense of loss now that he saw her so much less frequently. He realized also that his daughter would, in just ten years, be a teenager, far more interested in her friends than in spending time with daddy. So he saw himself as having a short window to share this wonderful quality of relationship (something he considered of enormous value to both his daughter and himself). This is why he felt so much intensity and urgency.

He knew that his daughter never wanted their weekend visits to end and protested having to go home. He felt that a third day, inserted right in the middle of his work week, would result in he and his daughter only going two days at a time without seeing each other. And while expressing an understanding that it was difficult for both of parents to not have their daughter around every day (as they had when the family still lived together), he shared his view that this three-day proposal would be so much better for both his daughter and himself.

The mother was able to hear all of this and even appreciate the father’s point of view. But she still felt that three days a week was too much. A similar excavation process revealed that, for her, the primary concern was the child’s emotional wellbeing. From where she stood, the father was married only to his work. She stated her view that this was why the marriage had failed. In his spare time, he would get obsessed with this hobby or that for a short time. But then his real obsession, work, would reassert itself. She called it his one true love. She spoke of the motorcycle rusting in the garage as proof. She also spoke of the boat they were selling at a loss and other hobbies that had been his passion for a time. She expressed an opinion that he needed to grow up but, when asked about the feelings underneath her strong judgment of her husband, she admitted she was speaking from a place of hurt.

Most important, though, from her point of view, was that while true that their daughter was always eager to see daddy and to jump into his arms, there were many nights when she had fallen asleep in mom’s arms, distraught, because daddy had promised to return in time to tuck her in and was not there. There were many times he would rush off in the morning without even saying goodbye. Mom felt that someone needed to protect their daughter from being continually disappointed by her loving but childlike and irresponsible father.

She felt that she was being generous, giving dad every weekend – since her attorney had explained that he was most likely to get every other weekend if the case went to court. She wanted him to have a close relationship with their child. She wanted that for their daughter too. But she felt that limiting him to two days a week kept dad focused on the importance of their time together and less likely to place his work interests ahead of the child’s needs. In other words, she saw the father’s sense of scarcity as a good thing. And she felt that her willingness to take all the school days and give him all the weekends (“the fun time”) was a huge concession – something he ought to appreciate.

Notice how, after hearing each of them out, it’s easy to stand back and think “well that makes sense.” For the clients this is often the first time they’ve heard the other around the issues discussed in a way that resonates as having at least internal logic. They often move from seeing the other as crazy or a bully or just plain unreasonable to being able to say something along the lines of “I get where you’re coming from.”

When the mother had gotten to her truth, the dad was able to acknowledge much of what she had said. He responded, “I have been too focused on work. And I have submerged myself in hobbies only to later lose interest. But our daughter is not a motorcycle. She’s everything to me. So much so, I’ve realized I need to take Wednesdays off.” The mother responded, “I don’t believe you. I don’t trust you. But I’d love nothing more than to be wrong.”

Consider for a moment what a huge step this is. Even though not a single agreement has been reached at this point, and even though they were still miles apart in terms of what would be best for the child, the character of the discussion had shifted. They saw a common landscape of reality. They both could align on a value that ideally dad would have a really close relationship with their daughter. They agreed he had been placing too much emphasis on his career at the expense of her needs and that this had at times been painful for their daughter. From this place, looking at their underlying needs as a family rather than their initial positions (three days per week versus two), they were able to see and approach the conflict in a new way – not as adversaries but as partners in figuring out what would be best for all of them as a family.

Only at this point, after all the work necessary to bring underlying needs into sharp focus, were we ready to begin looking at options for settlement. Had we tried sooner, it would have forced us to engage in an evaluative manner – slipping back into discussions over what a court might do or what a custody evaluation might reveal. Those sorts of discussions would have gone nowhere. My experience as a mediator and collaborative attorney has taught me that when discussions slip into an evaluative framework, it means we haven’t done enough to fully explore underlying interests and needs.

For this family, with each parent’s interests now in plain view, and with each able to see that what the other wanted was not necessarily standing in opposition to what he/she wanted, we could finally begin to have a productive conversation. This, more than anything, is the key to understanding the art and science of conflict resolution.

As we began to discuss possibilities, the parents agreed to meet with a child therapist whom the attorneys suggested – a professional for whom each attorney had great respect. Both parents would meet with him separately, and we would schedule our next settlement meeting for after that had happened.

At our next meeting, each reported a very positive experience. They both liked and trusted him to see the big picture and guide things forward in a wise manner. They chose together to engage him as the therapist for their daughter with a specific purpose in mind. They agreed he would see the child every week for a specified duration, during which dad would have two days a week parenting time. They agreed that, after this specified duration, the therapist would decide on an ongoing basis how much time dad would have within the following parameters: No less than two days and no more than three days per week.

Both parents were extremely satisfied with this agreement and the balance of their settlement quickly came together. Looking at it from the level of interests, one can see why. Dad got the opportunity to have the kind of meaningful relationship with his daughter that he wanted. He would have to place the child’s needs ahead of his tendency to get compulsive around work, and he would be held accountable, but that was actually a really important benefit in his view. The mother received assurance that the emotional needs of their daughter would come first. In fact, their daughter’s needs would be front and center.

Interestingly, each actually got more than he/she had initially wanted in that each also received something of importance that the other had been holding. Mom received the possibility that their daughter would get the kind of close relationship with her daddy that she, the child, had longed for. Dad received a coach in the form of the child’s therapist to make sure he remained mindful of his daughter’s needs.

This is a shining example of a win-win result. Notice how creative the resolution was and how far afield it fell from anything a court would have ordered had the case gone to trial. The gavel would have fallen and the result would have felt arbitrary to both parties. Even if one [most likely the mother in this case] had “won,” it still wouldn’t have felt good for very long because the deeper issues would have been neither touched nor resolved. There would have been resentment on the part of the “losing” party, which would have complicated their relationship going forward.

Let’s stay with this case a bit longer because it represents one of the very few happy endings in the relocation context that I’ve encountered in almost 20 years of practice. Relocation tends to be win-lose by its very nature because the child either stays or goes. Thus, it’s unusual to reach negotiated settlements that both parents can embrace fully. This case, however, proves that such a result is possible.

A couple of years after the divorce was final, the mother wanted to move to San Diego. She was in a new relationship, engaged to a man she purported to love very much. My client had met the man and thought him both stable and likeable. He just had concerns about being away from his daughter.

The law in Arizona at the time, unlike that in Washington now, permitted a non-residential parent to prevent a residential parent from relocating unless the residential parent could prove to the court’s satisfaction that the move was in the child’s best interest. Proving that a child would benefit when taken from the only daddy she would ever have was an almost-always losing proposition. In other words, the father almost certainly could have vetoed the move. Had the case originally been litigated, dad would have become an every-other-weekend father and, when mom wanted to leave, he would have stopped it. When practicing in Arizona, I witnessed broken engagements and relationships ended entirely because a non-custodial parent would not agree to a relocation. In this case too, it wasn’t clear there was a way forward. But since the divorce had been so successfully resolved through interest-based negotiations, the parties agreed to return for more.

The child’s therapist came to the settlement meeting to offer his insights. His involvement turned out to be crucial as he was able to keep the focus on the child’s needs. The mother spoke of the beautiful home in which they would live, the school she would attend, the neighborhood and its resources, and also her opportunity to further her own career. She spoke also of her desire to remarry. The father, after careful deliberation, chose to agree to the move. He said something along the lines of, “You didn’t roll over me when you could have. I want to reciprocate by recognizing that this could actually be great for our daughter. I will rearrange my life so that I can follow you.”

He spoke of how, with their daughter in school, he felt ready to transition to something new. He could see the advantages for their daughter and didn’t want to prevent his ex-wife from getting remarried. He expressed his appreciation for what she had done for him as well as gratitude for the opportunity to return the favor.

In those days, there were cheap shuttle flights between Tucson and San Diego. It was agreed he would visit every weekend he could make himself available until he could follow. His work, though intense, could be conducted in a mostly remote manner. We took a short break so the mother could make a quick call to her fiancée. She then agreed to let the father stay in the guest room of her new husband’s home. She also offered to let him keep a car at their home until he had a place of his own.

For the next several years, I received an annual Christmas card from my client. He had managed to follow the mother to San Diego. Each year, he told me of how they had celebrated Thanksgiving and Christmas together. He reported on the joyousness of those occasions. One of the cards said something along the lines of, “Our daughter has a mom and two dads.” The client expressed gratitude for the help of each of the professionals (by which he meant the child therapist and both attorneys). Consider for a moment the possibility that a client could see both counsel as allies to both parties.

As an attorney, the satisfaction of receiving a card like that is way more compelling in my view than even the biggest courtroom “win.” Following a big litigated triumph, my ego might feel good for about twenty minutes. Then I would notice how hungry I was plus the pile of mail sitting on my desk and all the calls that had to be returned. I might enjoy thinking about the case from time to time for another day or two and maybe telling a few people who were kind enough to listen. But that’s about as far as the satisfaction went. And of course one doesn’t always win. I found it really hard to face my own disappointment on behalf of clients who didn’t obtain favorable results, let alone theirs.

It’s particularly interesting to contrast the challenges of dealing with former clients in the litigation context, who are so often unhappy, with the typical experience of dealing with former clients after a successful win-win resolution. I’m the same guy who used to get his share of disgruntled clients and the occasional bar complaint as a litigator. Now it’s very rare for clients to express anything but appreciation. Clients often comment that they selected me because of the many positive online reviews they’ve read. Nothing about my character has changed. Only the focus of my practice. And it of course goes without saying that this type of practice is so much more personally rewarding. It truly helps people and knowing that one is making a positive difference in the world feels great.

I’m told there is well corroborated research showing that personal satisfaction, once one has adequate resources to pay basic living expenses, rises far less with additional income than with one’s sense of meaning and purpose. I can attest to the anecdotal reality of such findings in my life.

A Letter to My Bellingham Colleagues

The February, 2012 issue of the Whatcom County Bar Association Newsletter contained the following article that I was an invited to pen as a means of introducing myself to the Bellingham legal community. It’s republished here so that clients and potential clients can get a better sense of who I am and my views on the practice of law.

Many thanks to Rajeev for inviting me to introduce myself to the community through the Bar Newsletter. I’m so grateful to be in Bellingham. Many years ago, I lived in the Pacific Northwest, having moved to Portland soon after graduating from college, and then later to Seattle, where I worked as a computer programmer with Boeing. At age 28, I realized that I wanted to attend law school. At the time, supporting a wife and two young children, the realization hit me more like, “If I had my life to live over…” Then a layoff came and I was forced to grapple with the reality of having to start over one way or another.

Offered a full scholarship to the University of Arizona down in Tucson, I decided to leave Washington. My wife at the time, to her credit, agreed to the move. The plan was to return upon graduation. However, a really nasty divorce got in the way. After the dust had settled, my then-wife, who suffered from mental health issues, disappeared from my children’s lives. By then, they had been through so much; I just couldn’t put them through any more. So I stayed in Tucson for 18 years until my youngest, who had been born in Washington, went off to college — ironically, to the UW. (I tease him that he’s like the salmon returning to its spawning grounds.)

This nasty divorce had a lot to do with my decision to become a family law attorney. I had a wonderful lawyer who held my hand through an incredibly daunting and painful process. My ex-wife’s first attorney turned everything into a fight and made things miserable for all of us. However, her second attorney did his best to steer toward reasonable compromise and settlement. After observing what a difference divorce lawyers make in the lives of clients and their children, for better or worse, I imagined that I might contribute something of value to real people by practicing in this field. I knew divorce law could be demanding, but after so many years of working with computers, it felt like an amazing opportunity.

A few years later, that choice felt naive to say the least. Already starting to burn out on the high level of conflict, one case in particular showed me that I was often causing more harm than good. It was a difficult case in which I had “won” custody for a father of two young sons. The court also consented to a major relocation. The following summer the children returned for a visit and the next thing I knew the case was reopened on an emergency basis. The boys were now claiming they had been abused. One of them, referring to the divorce, said to the CPS caseworker, “No one listened to us.” I knew his list of “no ones” included me.

At that point, thoroughly discouraged, I began learning immigration law. Fortunately, right at that time, a colleague told me about a new approach to divorce. A group of lawyers were signing up for collaborative law training in Phoenix and I was invited to join them.

I’d never heard of collaborative law. It was 2001 and, outside of a few hotspots around the county, the collaborative approach was pretty much unknown. But that training restored my desire to practice family law. A year later, I had gotten trained as a mediator too and was refocusing my energy away from conventional practice. By the time I left Tucson, some ten years later, my entire caseload consisted of collaborative divorces, mediations, assisting those who had negotiated their own settlements prepare legal documents, and the occasional conventional case taken by choice. It was a wonderful practice. One that provided a front row seat to the miracle that happens when conflict softens, first into openness to the perspectives of another, and then into settlement, sometimes contributing to significant healing of the relationship along the way. There was just one problem: Tucson never quite felt like home.

I was born in New York City and raised on Long Island but knew from an early age that New York was not where I belonged. In my teen years, when I first read about Oregon and later followed the coverage of the Mount Saint Helens eruption, the Pacific Northwest called to me. After college, I moved cross-country and began exploring (and moving) ever further northward. When I lived in Seattle, I would drive through Bellingham and think, “How cool it would be to live here someday.”

After so many years, I’m thrilled to finally be back in the Northwest, specifically in its most beautiful corner, and grateful for the opportunity to become a part of this community. As it turns out, Bellingham is more than a sublimely gorgeous place. It’s also a great town in which to practice law. It’s wonderful that, by the time I arrived, there was a collaborative law group already here which welcomed me in so graciously. And more broadly, it’s been great to discover that so many attorneys in this town — whether formally collaborative or not — have a pragmatic, problem solving approach to practice that mirrors my own.

At our last bar lunch, I was struck by Deborra Garrett’s comments about the Whatcom County Bar having become more welcoming over the years. Her words rang true. I have found this community to be both warm and open. Attorneys have been encouraging, helpful and extremely generous with their time. I don’t want to embarrass anyone by naming names but, to everyone who has helped me to feel accepted and shared freely of their knowledge as I slowly get up to speed on the specifics of local practice, thank you. And to those I have not yet gotten to know, I look forward to our meeting and to working together on cases.

Can This Marriage Be Saved?

Right up front I want to establish that I’m neither a therapist nor a marriage counselor. I claim no particular expertise in relationship. I’m simply an attorney and mediator who has worked with hundreds of couples. Over the years, I’ve observed some subset of what works and what doesn’t when it comes to reconciliation. What follows are my observations.

A sizable percentage [I’d guess a quarter to a third] of divorcing couples will make one or more attempt(s) to reconcile. The vast majority fail. Below, I’ve done my best to explain the reasons, as I see them, why so many make the attempt and so few succeed. In addition, I’ve set forth some of the things that seem to set certain couples apart, allowing them to reconcile successfully.

When a relationship is failing, both husband and wife are under a lot of stress. When they separate, they’re no longer right there in person, day in and day out, triggering the heck out of each other. Often, things begin to settle down, leaving each the time and space to take a deep breath. At this point, many people will begin to recall the good times, see long-forgotten positive qualities in the other, and consider whether the marriage might be worth saving.

This generally lasts until they move back in together. Once under a common roof, they find themselves again struggling with the same, old unhealthy patterns and fighting the same old, unpleasant fights. Thus, most reconciliation efforts ends in frustration and failure. That’s the bad news. The good news is that knowledge is power and, for those who are up for a challenge, hope is not lost.

Those who successfully reconcile share certain identifiable characteristics. First, they seek assistance from professionals. When a couple is trying to break old, unhealthy habits and patterns of communication, no matter how good their intentions may be, they most always need help.

Second, it works best when both spouses are willing to look not only at what needs to change in their partnership, but also to focus on what they can change in themselves. After all, it’s far easier to change ourselves than to force someone else to change. And people are less resistant to change when they’re choosing it rather than feeling like someone is forcing it upon them under threat of divorce. Remember, whatever you learn about yourself is fully transportable if things don’t work out. So one has much to gain and nothing to lose by focusing on the things one can change within oneself.

Third, it helps when people are willing to look past the strategies by which they hope to change the relationship and their partner and instead begin to focus upon discovering their own feelings and needs. These words may seem inscrutable, as we’re not trained in this culture to notice our own feelings, let alone the needs that underlie them, so here’s an example. A spouse who complains, “You only care about yourself; why won’t you help more around the house?” might be feeling frustration, anger, sadness and the like. His or her needs might be for ease, peace, respect, etc. The particular feelings and needs are unique to each person. But the process of focusing on feelings and needs is universally helpful, as it shows us what we’re really wanting (beneath and beyond the conflict) and this process also allows us to share where we’re at in a way that our spouse can more easily understand and appreciate.

If these seems like colossal undertakings, that’s good. Turning a relationship around takes real commitment, as change does not come easy. However, it is possible — and the experience, being one of personal growth, can be satisfying and fulfilling.

As I’ve said above, to make meaningful headway, most couples need assistance. For some, couples counseling is the best option. For others, it works best for the partners to engage in individual counseling. Sometimes people will feel the need for both. Counseling is designed to help us get to the bottom of our unhealthy patterns and transform them. For many, it’s a great investment. However, it typically takes time. Thus, it’s important to have patience. But for those who are willing, it can be a great experience. After all, how often in life does one get to focus on his or her own feelings and needs and how often is someone with the training to help us there to listen?

For those who are interested, there’s a wonderful type of couples counseling called “Imago.” In my experience, it has tremendous potential to restore love and intimacy to relationships — even those that seem to be dead. A man named Harville Hendrix developed this form of counseling and wrote a seminal book called, “Getting the Love You Want.” It’s a fantastic resource that can help you get a sense of whether Imago might be the right approach for you.

If the Imago approach seems promising, one can find marriage counselors trained in Imago techniques. One can also find weekend-long workshops designed to impart the basics. It can be extremely effective to take a course to learn the techniques and then work with a counselor in engaging them.

Though counseling can be extremely effective, it’s not necessarily the right right approach for everyone. There are couples who have no interest in rooting around in their past or learning new relationship tools but who simply wish to negotiate practical solutions to issues that have been causing difficulty in the marriage. For many of them, mediation can be employed to negotiate the changes necessary to put the marriage back on track.

Marital mediation (as opposed to divorce mediation) focuses the potential of interest-based conflict resolution on couples before things have deteriorated beyond the point of no return. Very often in mediation, even when couples are divorcing, positive feelings and good will return. When they’ve already decided to divorce, typically one or both parties is no longer open to reconciliation. The process may still take them to a place of love and gratitude, which is a wonderful way to step into the post-divorce phase of sharing custody and moving on with one’s life, but there’s too much water under the bridge to get back together. However, in many cases, if they had come in sooner, more might have been possible.

That said, not all types of mediation are appropriate for couples working to save a marriage. Certain mediators are what I would term “evaluative” or “directive.” Such a mediator sees his or her role as that of helping the couple make the “right” choices. The downside to such an approach is it tends to focus narrowly on solutions with too much emphasis on the opinions of a third party, in this case those of the mediator. How different is that than when a judge makes the final decisions? Either way, the spouses are relying on a stranger to make important choices that will impact their lives and those of their children for years to come. No matter how well intentioned the mediator, he or she can not know as much about the family as do the husband and wife. It is the spouses themselves who are the experts best positioned to make choices that will impact their lives and those of their children. Thus, the best role for the mediator is that of facilitator, helping couples to discover feelings and needs, communicate effectively, and explore the full range of possibilities that are before them.

While a directive approach might be effective in resolving child custody and property division issues quickly in a divorce setting, it does not, in my opinion, open the full potential of mediation to find win-win solutions and it does even less to heal broken relationships. Thus, it’s not the right choice for couples who still hold out hope of staying together. The best mediators, in my opinion, are those who facilitate a process that shares certain common ground with couples counseling. Like counseling, it helps each spouse to see through the other’s eyes.

Ultimately, relationships work when people can step into each other’s shoes and really understand where the other spouse is coming from. They don’t have to ultimately agree about much of anything. People who are extremely different can have great marriages. In fact, those differences can be a source of strength. But each spouse must have empathy for the other.

When one partner can see the other spouse’s worldview and truthfully say, “I really get where you’re coming from and, even though I don’t necessarily see things that way, what you’re saying makes sense to me” limitless possibilities open. In many instances, they begin to see options that hadn’t seemed to exist before. There are times when the ultimate resolutions reached are better than anything either of them could have imagined before engaging in this process.

The other advantage to marital mediation is that, if things don’t work out, the transition to divorce mediation is effortless — as the foundation the couple has built by working together remains in place with the focus merely shifting to custody, visitation, division of assets and debts, and (when appropriate) spousal maintenance.

Finally, I’m going to mention one more avenue that might be helpful. A man named Marshall Rosenberg developed a technique called Nonviolent Communication, which is fully delineated in a book called “Nonviolent Communication: A Language of Life.” Therein, he explores feelings and needs from yet another angle. In my experience, Nonviolent Communication is very difficult to master; however, the potential it has to open personal relationships (not just with spouses, but with anyone) is nearly limitless.

Regardless of the approach a couple that wishes to explore reconciliation chooses, the benefits of making such efforts go far beyond the immediate issues at hand. By working on oneself in relationship, one develops insight, learns new relationship skills, and creates the foundation for a healthier connection with his/her partner (either as spouses or as exes) moving forward.

The Miracle of Conflict

Over the years, while learning to help people navigate through conflict, I discovered something really cool. Most of us do what we can to avoid disagreements. It’s unpleasant to argue. But if one can be present, there are huge gifts to be found.

When we’re upset, we have the opportunity to discover much of importance about ourselves. The reason is that everything “out there” is actually “in here.” One might say everything’s an inside job.

Does this sound far fetched? Read on and then feel free to share your thoughts in the comments section.

Our natural state is one of harmony. When someone does something that upsets us, we may have a judgment that the offensive behavior (and, usually, the person who committed the act) is “wrong.” In reality, what happened is just what happened. If we fail to see that, it’s because we’re stuck. Our reactions implicate us. Think of it this way: If someone were to cut Jesus off in traffic, how would he react? Would he get angry? Would he yell and shake his fist? Would he become short-tempered with his children in the back seat? Or would he have compassion for the other person and whatever it was that might have caused him or her to drive dangerously?

Of course we all know that a fully enlightened being would experience tremendous compassion for the other person. And that’s true of us too when we’re not in our own way. If, when cut off in traffic, we’re feeling really good because something wonderful just happened, we’re far more likely to wonder if the other person might be late for work or perhaps trying to get a child to the hospital or maybe just elderly and confused. And when we see the world in that way, we feel great because we’re living in a way that’s true to the light and love we carry in our hearts.

Unfortunately, being less than perfect, most of us get caught sometimes. I certainly do. And that’s alright. We can have compassion for ourselves. We’re only human and that’s what connects us.

At times when I’m not feeling compassion for another, no matter how wrong I may think he or she is, if I’m upset then it’s something within me that’s caught. Do you get that? Whatever’s caught is mine. I own it. And that’s the bottom line. Once again, I want to reiterate that we need not stand in judgment of ourselves. It’s not bad and wrong to have reactions. Such things are part of the human condition. But if we can discover the trigger that got activated, we’ll find an old wound beneath the trigger that’s in need of healing. And just by being present to that insight, the wound begins to heal. Anything we do to become more conscious of what’s within leads to personal growth and healing. When the wound that underlies the trigger is healed, no anger for the other person will remain; there will be only love and compassion.

The implications of this are enormous. For one thing, it means that conflict can be healthy. Navigated well, conflict leads to personal growth. Bit by bit, we become ever more conscious and integrated.

In marriage, once we’re past the honeymoon, our partners will trigger our reactions more deeply than anyone else. Since there’s so much healing potential in this, our spouses can be our greatest teachers. That doesn’t necessarily mean one should remain married to any partner. But it does mean that conflict, in and of itself, need not necessarily lead to divorce. It also means that, for those who do in fact divorce, the pain can be handled in a compassionate, loving way that leads to healing and growth for both spouses.

For those interested in working their relationships rather than ending them, there are resources that can be helpful. We’re fortunate to have a famous relationship scientist just up the road in Seattle. Dr. John Gottman has an institute that gives workshops on the things he’s discovered. He teaches people to be aware of the ways in which conflict can be handled well or poorly and empowers them to make wise choices.

Another great resource are Imago workshops, given around the country by people trained in what’s called Imago therapy. Imago posits that we fall in love with someone who reminds us in unconscious ways of our caregivers in our family of origin. It further posits that we do this so that our childhood wounds can heal. Imago teaches techniques that can help people see beneath their conflict and return to love and intimacy. I’ve taken Imago workshops twice and both experiences were amazing. Even if the marriage isn’t saved, most people who approach this work seriously will experience growth that will show up in their next relationship. People who have perfectly wonderful marriages may take an Imago workshop to deepen their connection. I met a couple once who were taking a workshop given to them as a wedding present. I also met a husband and wife who took an Imago workshop every year as an anniversary present to themselves.

Another wonderful resource is Non-Violent Communication. Developed by a brilliant man named Marshall Rosenberg, NVC helps people to see the feelings and needs that exist beneath conflict. It can be useful not just in our romantic relationships, but in the many interactions in which we participate daily. Rosenberg calls NVC a language of love — and it is. NVC leads one to insights that bring compassion for oneself and others. As one learns this language, it becomes ever easier to access love and joyousness. NVC is not, in my experience, easy to assimilate. I’m far short of mastery. But there’s value in beginning to learn its techniques, and then progressively more value as one continues to learn.

It’s an amazing and wonderful sort of cosmic joke that whenever we think something happened “out there,” it’s really a mirror for what’s inside. As Pogo once said, “We have met the enemy and he is us.” When one gets this, and when one realizes the potential for growth that comes from facing interpersonal challenges well, one finds himself or herself looking forward to the next opportunity to learn in this way. Behind every challenge lies opportunity and even hidden treasure. An old teacher of mine once said, “What’s in the way IS the way.” It’s really true. That’s why I love relationship work, and it’s also why I love working with people who are going through the difficult transition that is divorce. As an attorney and mediator, I’m blessed to witness the enormous growth that many of my clients experience. People come to me at a time when it can seem to them that their lives are falling apart. Often, by the time our work together is complete, a client will seem like a new person. Pain is not easy to face, but if one uses it wisely it can be very much like rocket fuel that takes one to a previously unfathomed, far more satisfying life.

 

When its Necessary to Go to Court

If you’ve read through my website, you’re no doubt familiar with my philosophy that disputes are best resolved through non-adversarial means. But resolving conflict amicably requires that each spouse be willing and able to act in good faith. If, for instance, your spouse is hiding assets or income, running up debts or deliberately turning the […]