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.

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.