Monday, October 23, 2017

Commentary: Two troubling trends in custody litigation and the social cost

In my role as a divorce litigation consultant, I work with both moms and dads as they navigate the often unpredictable and frequently heartbreaking road of custody litigation and post-divorce co-parenting. Since two of three divorces are low conflict, my career has been spent dealing with the small group of high-conflict divorces—some of the one third of divorcing couples that just can’t agree on what’s best for their children during and after divorce. As mediation has become the standard pre-trial procedure in Texas, the number of litigated custody cases going all way to a jury verdict is down to about 1% of all cases—a trend that’s good for every child of divorce (and their parents, too).

Despite that trend in the decline of jury trials in Texas, two other trends have emerged among litigated custody cases that concern me:
1. The apparent rise in the number of cases of alleged “parental alienation” by unhappy non-custodial fathers, and
2. The simultaneous increase in a subtle but pernicious bias against how fathers parent their children, whether they are the primary parent or have various ranges of visitation rights.

First, as I have written elsewhere, the actual numbers of “parental alienation” cases is very low—a tiny fraction of those high conflict divorces I mentioned above. And the best available research looking at more than 1000 of those cases revealed that when mom alleges abuse, 50-70% of those allegationswere proven to be true in the courtroom, and intentionally false allegations made by mothers were exceedingly rare. Interestingly, the largest source of FALSE allegations was made by non-custodial fathers.

The danger to the children (and to the family court system) is that once the allegation of “parental alienation” is made, the burden of proof (real not legal) falls on the accused parent to prove the negative “I am not an alienator!”. Just as in the Salem witch trials, where innocence was established when the “witch” drowned during repeated dunkings, ALL attempts by the alleged “alienator” to establish her innocence are interpreted as further evidence of her guilt! (She didn’t drown, she must be a witch; she denies it, she must be an “alienator”).

This toxic labeling is frequently given unwarranted credence by uninformed or poorly professionalized mental health professionals who jump on the unproven and statistically unlikely band wagon, even though the APA refused to include “parental alienation” as a diagnosis in DSM-V because of a lack of valid and reliable criteria! Based on my experience in more than 1000 contested cases, “alienation” is family dynamic/pattern, not a personality disorder, and should be treated as a symptom of the dysfunctional family system (these parents are divorced or divorcing after all), and NOT attributed to one parent.

BTW based on my review of the research, there is NO evidence supporting the forced removal of the children from the “alienating” parent and moving the children to the home or primary conservatorship of the other parent, and much data on attachment, bonding, and childhood stress to suggest that such a “solution” is harmful to children and unhelpful in resolving the underlying parental conflict.

Back to the numbers for a minute: according to the US Census Bureau, 10 years after divorce, 87% of children reside primarily with their mothers (91% of those as a result of agreed custody decrees at the time of divorce) and fewer than 1 in 25 fathers actually fight for primary custody at the time of divorce. This disturbing trend brings me to my second point...

2. The failure to fully appreciate a father’s role in a healthy family, the difference in how men form and maintain relationships, and a resulting denigration of a father’s contribution to the development of his children by divorcing moms and sometimes, by family courts.

As I have noted elsewhere, there has been a remarkable lack of research into the role of fathers in normal children’s development until the last 30 years or so. Maternal-child bonding-attachment has been investigated for nearly 100 years but there has been little attention given to father-child bonding-attachment. Recent research, especially advances in brain imaging, have opened the door to the importance of the father’s unique contribution to the health development of children—beginning at birth! When fathers are engaged in holding, feeding, changing, talking to, and swinging babies around (as only fathers do), there are positive, identifiable changes in the brain structure and development of these fortunate children, and concurrent identifiable neurotransmitter and hormonal changes in dad as well. Dads and kids develop neurochemical “attunement” over their time together, and this attunement is reflected in positive parent-child relationships later in both their lives.

Regardless of the parents’ marital status, this father-child relationship needs to be fostered and encouraged, for the good of the children (and for society, as I will explain shortly). Children need to be nurtured, certainly, but they also need to be stimulated, challenged, and encouraged to be independent and courageous, and that’s what engaged fathers (in healthy families) do...

On the other hand, too many dads are opting out of being fully engaged dads, beginning at birth. Their own family histories, extreme attitudes about traditional family roles, economic/career pressures to work long hours, narcissistic personality features--whatever the reason--about 1 in 4 dads apparently are NOT bonding to their children through early, frequent engagement with their babies and toddlers, and consequently, both they and their children are missing out on the benefits of the potential attunement to each other.

This failure of dads to be engaged with their babies is a warning sign of marital problems occurring at the time or coming later.  Disagreements about how to raise children are a major cause of divorce in young parents, and these dads who have not been involved in caring for their young children are likely to be clueless when they have a whole weekend of visitation with children they barely know or know how to care for. They are not closely bonded to their children, and their children may not be securely attached to them either.

This attunement failure can lead to challenging visits for both dad and the kids, and if not remedied by giving good information and training to dad, to children resisting visitation with a parent they don't trust. When this happens to a dad with narcissistic features, the resulting insult to the image of a "perfect" dad can lead to accusations that the mom is "poisoning" the children, "otherwise why wouldn't they want to be with a guy as wonderful as I am". It may also contribute to the alarming number of dads who completely bail after divorce (particularly after re-marriage-more about this below).

On the other hand, for dads who have been fully engaged from the children's birth in caretaking and parenting, unresolved marital conflict and parental hostility can lead to "Disneyland dad" allegations by mom. Dad may not have daily contact or caretaking responsibilities and spends his weekend visits doing fun, active, sports or recreational activities with the kids. In healthy families, it's what dads do.

In contrast to women, who make and maintain relationships by talking; men make and maintain relationships by doing things together. Children need two parents who can provide both kinds of relating in order to develop normally. Unfortunately, in the family court, even an engaged dad can find that his relationship style and contribution to his children's development is frequently not appreciated or inappropriately criticized as "not in the best interest of the children."

This failure to appreciate dad's different contribution to parenting can lead to less access and visitation for dad, and a loss of needed father contact for the children. We all need dads to stay engaged with their children, not just for them, but for all of us.

Unfortunately, an alarmingly large percentage of dads (nearly 25%, and I suspect they are NOT bonded to their children) completely disappear within a few years after the divorce from the child's mother, leaving the kids fatherless. The consequences for the children are shocking...


As you can see, fatherless children are at the root of some of our more serious and costly social problems. This is a problem that crosses racial, ethnic, and economic boundaries, and costs all of us more $700 Billion a year in services, facilities, and lost tax dollars.

It seems that are some partial solutions:
1. Continue to encourage the growth of collaborative divorce which early data suggests lessens ongoing family conflict post-divorce.
2. Challenge allegations of "parental alienation" by dads who don't have history of engaging with their children from birth;
3. Recognize and respect the complimentary but different contributions that moms and dads make to the development of healthy children, especially in divorce.
4. Fatherless kids need mentors when they don't have dads; support and participate in mentoring programs for fatherless kids.



Monday, February 13, 2017

Why are clients willing to pay for coaching during divorce litigation? Because feelings really do matter to our clients


"You shall know the truth, and the truth will set you free..." John 8:32

For more than 35 years now, since my third year in law school as a clerk in a boutique family law firm, I have had the privilege of listening to family law litigants tell me their stories. Most are disturbing and sad, tragic for the children involved, some are funny, and all involve the clients expressing their deepest desire to "tell their story" in their own way, and have someone really understand what they have experienced and what they fear.

As a pioneer and innovator in this unique niche in the litigation consulting industry, I frequently have to help family lawyers figure out a way to explain the value of my services to their clients. As litigants have become more and more cost conscious, lawyers have become more and more reluctant to talk to their clients about how a talented and experienced coach and consultant could help them and their families navigate a very trying and expensive process. This reluctance is a combination of prudent business and professional judgement and of a failure to understand the depth of the emotional strains faced by their clients who feel victimized by a system they don't understand and can't control. Some of my more empathic lawyer friends have truthfully told me they call me because they "really don't want to listen to that ..." and they know I will not only listen and help the client, but then provide them with legally relevant information that will help them win victories for their clients.

As a shrink who operates in a world full of trial attorneys, I have taken a fair amount of mostly good-natured ribbing about being interested in our client's' "feelings".  (To be honest, there are times when the attorney part of me doesn't care much about those feelings either.)  Now, advances in brain imaging and monitoring have provided the scientific foundation for why "feelings matter" to our clients. The research exposed participants to a very confusing and stressful set of unfamiliar circumstances (sounds like family law litigation to me-just saying). The imaging and monitoring technology showed a brain clearly in chaos: rapid, spiking EEG waveforms, and an overall chaotic pattern of brain over-activity (recognize any clients yet?). Only one intervention was required to completely change the brain wave patterns to normal, rhythmic, stable, modulated, and calm: correctly labeling the "feeling" being experienced. Even I was impressed with the speed and the totality of the measured and experienced effect. 

Who knew? I do now, and so  do you. Labeling feelings helps the brain organize itself. Knowing the truth about what the feeling is (an accurate label) allows the brain to change the way it functions and return to normal, and it happens fast!

The other value that skilled coaching brings to family law litigants (and their lawyers) is the developing the ability to perform relevant and critical litigation tasks at a high level of skill.  Lawyers seldom remember that the most widely experienced fear for 2/3 of our clients is: fear of public speaking (testifying). And as my clients have told me, this fear is magnified because they believe that if they fail to perform, they will lose their children (and that could actually happen).  

Teaching people the rules of evidence relevant to their testimony, the psychology of non-verbal persuasion in the courtroom for witnesses, cross examination and direct examination skills, and replacing fear with confidence provides clients with just the value that the credit card commercial claims: it's priceless.  

For parents in custody litigation, knowing they did their part in contributing to putting on a good case, even if they didn't get exactly what they wanted, provides peace of mind that eludes litigants who do poorly in a deposition or in court. More of my clients have wished aloud that I had been hired sooner than have complained about my fees or that I was hired at all (the ratio is about 1000 to 1--there's always one). 

As lawyers, even family lawyers, it's easy to ignore, minimize, or brush off those messy "feelings" that come with family conflict and the resulting chaos. Just remember, it's not the client's "will power" that needs adjustment, it's their brains.  There's help for that. 

Now you know the truth...Call me.




Monday, September 19, 2016

Why Narcissists are a Threat to Truth and Justice--And Not Just in Family Courts

The narcissistic paradox: Narcissists have the ability to inspire confidence in their grandiose assertions about themselves without a shred of evidence of their competence.

For those of us who must deal with narcissists (Narcissistic Personality Disorder or NPD) as a part of our personal or professional life, whether as clients, partners, spouses, employers or bosses, few relationships are more challenging and frustrating. Literally millions of dollars are spent each year on professional counseling by the hapless victims of these charming, successful, and intelligent but toxic people to try to figure out how to live with inevitable scars resulting from a relationship of any kind with a narcissist. 

The personal suffering of the millions of victims of NPDs has been well documented over the last 20 years or so by many talented and articulate writers. Both the DSM-V and Sam Vaknin (a self-admitted NPD himself) have clearly explained the characteristics of NPD, and I won't repeat that list here. Rather, I want to address the toxic and systemic impact of narcissism on the functioning of the courts, particularly the family court system, and the Courts' decisions about conservatorship of children.

As we all learned in law school, our system of justice is predicated on the principle that out of the conflict of two trained advocates zealously representing the differing interests of their clients before an objective trier of fact, the truth will rise like a Phoenix out of the fires of conflict. I contend that in too many family court cases where an NPD is a party, this fundamental assumption about how truth is uncovered and justice is administered is fatally flawed.

First, when a NPD divorces, their spouse is already at a significant disadvantage. Spouses of NPDs are inevitably grossly wounded by their relationship, and many are so wounded that they have symptoms similar to those of combat veterans and PTSD sufferers. Worse, the isolation that they have lived with as a normal feature of their marriage has prevented them from realizing that the criticism, threats, insults, and humiliations that they suffered in private were NOT their fault, and they are NOT worthless human beings. As a result, they are difficult clients to represent because they have such low expectations that anyone can help them, and have to learn to stand up for themselves again. 

This background of humiliation and intimidation makes meeting with a divorce attorney a surreal experience where they are asked about details of their married life they frequently know nothing about: money, property, investments, and other assets. Inquiries about the children are more comfortable, and these moms are frequently very engaged with their kids (sometimes overly so). As mom's attorney begins to prepare for negotiating the terms of temporary orders for visitation, conservatorship, and support, the spouse's unease grows as she realizes that the odds of an agreement without a fight are very low. Furthermore, she knows how persuasive her NPD husband can be and how fearful she is of facing him in court.

Second, increasingly crowded family court dockets mean that time allocated for temporary hearings is declining. This trend favors NPDs, who can make damaging and completely specious allegations about their wounded spouse in their hearing testimony with no fear of being successfully challenged by their spouse's attorney with contravening facts.  
Two more core characteristics of the NPD style only make the challenge of finding facts in a short hearing even more difficult. NPDs respond to challenges of their outrageous fictions in two predictable ways: first, they "double-down" on the allegations and make even more grandiose and fictitious claims about their own character, accomplishments, and parenting ability; second, they increase their personal attacks on their spouse, again with no regard to the actual facts or the effects of those attacks on the mother of their children.

One ironic NPD characteristic is actually helpful to the insightful attorney representing the spouse of a NPD. One of the primary ways that NPDs cope and protect their grandiose views of themselves as "all good" or perfect, is to blame their opponents for actions they themselves are doing. For example, in a recent case, an NPD dad accused his ex-wife of substance abuse, but when the court ordered drug tests, the results showed that HE was using cocaine and pot, while his ex had nothing but prescription drugs ordered by her doctor in therapeutic doses in her blood. [Multiple instances of this pattern are currently in evidence in the race for president of the US]. 

Bottom line: If you want to know what an NPD has done or is doing that they know to be wrong or "bad", listen to what they are accusing their opponent of doing!

The problem for family courts who do their best to find the truth and administer justice for children and families is this: While our legal process is the best in the world for catching witnesses in a lie, that process takes time in court for painstaking fact-checking in cross examination and the requisite pre-trial preparation to work. In a world where Twitter's 140 character limit now sets the standard for meaningful communication, NPDs have substantial advantage, and the same goes in Courts who only have time for a 45 minute hearing to make a decision. 

The abbreviated hearing system is tilted toward the charm, confidence, and baseless but alarming allegations of the NPD litigant whose lies are unlikely to be successfully challenged in 20 minutes. As I teach my coaching clients, confidence is a large component of how people (and Courts) evaluate witness credibility, and NPDs have the charm, intelligence, cunning, and confidence to be very credible sounding witnesses while they spout an ever changing string of outright lies.

The system is likewise tilted against the shell-shocked spouse of the NPD who knows the allegations are completely false but largely because of her toxic relationship with the NPD appears anxious, confused, uncertain, and is unable to defend herself agains the lies and be an effective witness for herself and her children. And she knows that after the hearing is over, regardless of the outcome or what the Court orders, the NPD is going to do exactly what he wants to do anyway because that is what he has always done.

Advanced Practice Tips and Tools for Attorneys Representing the Spouse of NPDs:

1. If your client looks unusually anxious, depressed, hopeless despite being married to a highly successful, professional, executive, or especially political, man suspect NPD in the man and get the wife to confirm the list (Google narcissistic personality to find everything you need).

2. Suspect hidden assets and extramarital relationships as well as substance abuse from the outset. NPDs will do or say anything to get what they want or think they deserve.

3. Remember, whatever the NPD is telling his attorney about your client is mostly self-serving lies, and the opposing attorney is most likely "under the spell" of the charming and persuasive NPD. Remember the old joke "Q: How can you tell when X is lying? A: His lips are moving" was written about NPDs.

4. Take the time to prepare your client to testify in the hearing by first, getting a good marital history that you also need to prepare for cross examination of the NPD spouse, and second, by coaching and practicing her direct testimony and the expected cross examination. (Some witnesses freeze when they hear the enormous lies and incomprehensible allegations about themselves for the first time in court; they just can't process it fast enough)

5. NPDs only back down when they are humiliated in public, in my experience. Their grandiose and perfect self image is the most important thing in life to them; if that's damaged or in danger, they lose interest in litigating and are more likely to be amenable to settlement.

Thursday, September 01, 2016

My Friend is Going Through a Divorce--How do I Help?

There are few life crises that leave a caring person more confused and uncertain about what to do than watching a good friend go through a divorce. For other crises, accidents, deaths in the family, financial crises, life-threatening diagnoses, the "right" response and the help needed is more obvious and straightforward, and usually a group of friends will naturally come together to provide help and support. For a variety of reasons, this rarely happens when a couple divorces.

Whether they initiated the divorce or not, the divorcing friend has a complex set of challenges to master as they move from being married to being single. They have to find a new home, furnish it, and open all the new accounts to finance the new life. At the same time, they have to continue working to support themselves (and sometimes their soon to be "ex" as well). They have to manage the legal divorce process, usually by hiring an attorney to represent them, even if the divorce is collaborative or by mutual agreement. These tasks are time consuming and can be overwhelming because they all happen at once, and most of these tasks can't be delegated to even the most compassionate and available friend. But while the list is daunting, the tasks are doable with a little persistence and good humor. Good friends can be cheerleaders and even companions while these tasks are mastered, but there is a limit to how much a caring friend can help with these basic life tasks.

This post is focused on the part of the process where a caring friend can make a difference. While most of my experience in this area has been professional as I helped my clients overcome these social and emotional challenges of bouncing back from divorce, my recent personal experience has provided a new level of understanding and appreciation for how a network of caring friends can make the transition easier, and what is and is not helpful.  So here's my "Top Ten List" (I miss Dave Letterman!) of suggestions for how to help a friend get through a divorce and successfully transition to being single again.

1. Be there. Call, email, text every day just to check in. No need for long conversations or expressions of sympathy or advice. Just be there in some way every day for a while. You'll know when to back off.

2. Make time to meet your friend for lunch or happy hour every week. If you have mutual friends, make it a group outing. Keep the focus on your mutual interests, what's happening in the the world, family, or whatever comes up, and make room for a report about the divorce but keep it short and shallow. Encourage socializing; discourage serious dating for at least the first year, especially for men.

3. Avoid siding with your friend and bashing the soon to be former spouse. No relationship fails unless both people contribute to its demise; if there are children, your friend has to co-parent with the ex and stirring up resentment will make that harder, not easier. At the same time, don't let your friend take all the blame for the divorce either.

4. Encourage your friend to take time off from work to get settled in the new home and have time to think through a new plan for the future. If the friend is the stay at home mom, get some friends to plan a day of activities for the kids to give mom a break to just rest and recover a bit or have a spa day. Healing takes quiet time.

5. If the divorce (or the marriage before divorce) has been emotionally traumatic, encourage your friend to get counseling, and regardless of the marriage history, to get into a good divorce recovery program at church.

6. Daily routines are a stress reducer, so encourage the establishment (or re-establishment) of a health daily routine: regular bedtimes, meals, exercise, and leisure time. Discourage excessive time at work; encourage balance and time alone.

7. Encourage your friend to forgive their "ex", regardless of their failures, transgressions, or omissions. Forgiveness is a decision not a feeling.

8. Help your friend focus on the present and the future; discourage repetitive recounting of the past--change the subject. If they are having trouble with letting go, encourage them to journal every day until they are through.

9. It's been said that every relationship is either a blessing or a lesson. In my experience, there are both in every relationship, but some are not evident except in hindsight. Encourage your friend to take time to find both and write them down. Lessons learned don't have to be repeated.

10. Finally, and most importantly, encourage your friend to be grateful every day. Research has demonstrated that people who list 3 things on paper every day for a week that they are grateful for, are less prone to depression and anxiety a month later! This is especially important for middle-aged and older men who are particularly at risk for depression and suicide when they're alone.

Divorce is certainly a painful and difficult life transition for nearly everyone. Divorce also presents an opportunity for transformation because so many of a person's life structures are in flux all at once. Using these suggestions, you can help your friend use this life crisis as an opportunity to build a better life and a better future.




Monday, November 24, 2014

A Response to NerdWallet's article about the "Best Places to Live as a Single Mom"

Editor, NerdWallet:

I was very interested to find your article about the best places to live as a single mom, and since I live in Frisco, TX, and love it here, surprised to find our city on the list at number 2. Improving the quality of life of fatherless kids and single moms is a mission of mine, so any light that illuminates these families and their challenges is much appreciated. While I was initially excited, my enthusiasm turned to disappointment when  drilled down into your analysis.

I am working to develop a family center that would serve fatherless kids and single moms for all their needs in one location. As a divorce expert, I have learned first hand that kids from more affluent families are more negatively impacted by divorce than less affluent kids, and the primary reason is the significantly greater negative economic impacts suffered by these kids and their moms after divorce. (BTW 43% of ALL children haven't seen their dads in the last year, and that's not just the kids of divorce.) My work has driven me to learn about the economic and emotional challenges these families must overcome to bounce back from divorce.

In any case, here are some relevant facts that might have changed your analysis:

According to the US Census Bureau,


  • 28% of US households are single parent homes
  • 6% of Frisco, TX households are single parent homes
  • 3  The median number of people per single parent household in Frisco

If Frisco, TX is such a great place for single moms, why aren't there more of them?

The answer lies in your own numbers:
  • Median income    $4400/month (BTW, median child support in Texas is $430/per month)
  • Median mortgage  $2175/month
  • Median child care   $700/month (infant)
  • Median child care   $$650/month (4 year old pre-school child)
Most experts agree that when housing costs alone exceed %50 of monthly income, the family experiencing significant financial stress. So a single mom with 2  young kids in Frisco, TX who is trying to work to support her family is financially stressed, since housing and child care consume nearly 80% of her monthly income. Who can live like that in Frisco? No one.

Perhaps it is clear why only 6% of Frisco households are single parents--MOST single moms cannot afford to live here, and we "export" them to surrounding communities with lower housing costs (and lower quality of schools and life). The reason I say "surrounding communities" is that most child custody orders in divorce cases include geographic restrictions as to the residence of the children requiring either agreement from the dad or litigation and court approval in order to move. Single moms do NOT have the same degree of mobility as the rest of us, so a list of the "Best Places to be a Single Mom" is interesting but not actually useful to single moms, since they can't really move.

While I am sure the city of Frisco appreciates the good press (which we don't need by the way, since the rest of the economy is booming), your analysis of the Frisco economic climate for single moms is deeply flawed. I wonder if the same is true for the other "Best Places to Live" locations as well?

A few more relevant facts:
  • 25% of all single moms receive NO child support
  • Another 30% receive payments that are late or less than the full amount
  • 50% of all single moms live below the poverty line
  • In North Texas, 70% of all listed job openings CANNOT support a single parent family above the poverty level
Please consider a follow up article that provides more than just a cursory list of statistics and supports a more thoughtful and integrated analysis that highlights this growing invisible economic epidemic and the personal hardships that are being created.

There really are no "best places" for most single moms to live.

Tuesday, July 29, 2014

Emotional Freedom: Phases in Recovery from Divorce

Emotional recovery from divorce happens in phases not stages.

After helping hundreds of people bounce back from the challenges of divorce, I have learned that recovery happens in phases, not stages. While most people talk about the various components of emotional recovery using different terms or labels, there appears to be a general consensus about these 5 emotional components: denial, anger, bargaining, depression/sadness, and acceptance. Some people, mostly Christian writers, emphasize forgiveness as a critical component to recovery and freedom, and I agree with them, so I have included included it here. More on that later.

These are phases of recovery from divorce, not stages. No one moves through this process one component after another in a rigid order. Rather, the primary emotional focus changes over time and like most things in life, it's more like waves than stairs.  Successful recovery requires riding, not fighting, the waves until the storm passes.

I was trained as a psychologist, so of course, I have developed a self-assessment, a rating scale for each of the 6 components of recovery. Here's an example of someone in the early phases where the highest wave peak is feeling angry:


In my divorce recovery seminars, I encourage people to rate themselves at least weekly on each of the 6 phases of recovery during their journaling time. This provides a nice visual thermometer for how they're doing on the road to recovery. As recovery progresses, the bars on the left get shorter, and the bars on the right get taller.

A note about forgiveness: it's a choice. A difficult one, but still a choice. The research is quite clear about this: people who forgive their "ex" are able to move on; those who don't remain stuck in bitterness or depression that affects their entire lives from then on. The Bible makes it clear that forgiveness is not optional for Christians, it's required. Where there is no forgiveness, there is no recovery, and God knows that.

A few relevant factoids about recovery:

  • Most legal divorces take around 15 months to complete, at least in Texas. 
  • The divorce recovery process takes most people 18 months to 2 years, from the time they start. 
  • That usually means that the person who initiates the divorce has a head start of at least a few months over the spouse who gets the bad news. 
  • 90% of men, and 60% of women don't really recover and grow emotionally, they just go back to the old way of living and relationships, because they never forgive their "ex".
Decide to recovery completely; forgive your "ex". Do it for you, not them.



Friday, August 30, 2013

10 Barriers to Settlement in Mediation or Litigation of Family Law cases

A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.
  - Ludwig Erhard

[Erhard is a cynic, and I think he's wrong. You get what you expect.   KK]

Recently, I had the privilege of talking with two warriors on the front lines of family conflict: a marriage and family pastor at Gateway Church in Frisco, and Kevin Fuller, Board Certified Family Law attorney, talented mediator, and highly regarded advocate for collaborative divorce in Dallas. Both expressed the recognition of the same problem: growing numbers of people, who reluctantly divorce, don't want to engage in high-conflict traditional litigation, nor try the new-fangled collaborative divorce, even with its promise of "no going to court". Both of these men recognized the need for mediation before lawyers get involved, and Fuller has begun to offer "parties only" mediation to some of his inquiring clients. We all agreed that there is a need for a way to resolve, not exacerbate, family disputes and find workable solutions the issues inherent in dissolving a marriage without fracturing the family. 

Our discussions inevitably turned to the frustrations of trying to walk our clients through the process of divorce, property division, financial support for spouses and children, and conservatorship and visitation plans while the wounds of divorce are still bleeding. These conversations prompted me to consider the barriers to reaching agreements in these very trying circumstances. 

Here's my "Top 10 List of Barriers to Reaching Agreement":

1, Lack of a shared vision for the future. Most people have not considered, and find it hard to consider, what their lives will look like after smoke clears and to develop a reasonable plan to make it happen. Couple with children need to have a shared vision for the future of their children and their mutual part in that future, so that they can work TOGETHER to make it happen. Without that shared vision, self protection and "me-first" drive the problem solving process into a ditch.

2. Anger and the desire to retaliate. The most prominent anchor to the past is anger and retaliation. As one recently collaboratively divorced client put it "You have to give up the hope for a better past". While anger and hurt and the desire for revenge is understandable, when it persists, at high levels, it becomes a barrier to solving problems and reaching agreements.

3. John Gottman's divorce research identified "personal attacks on the character" of the spouse as one factor predicting inevitable divorce. Once the decision to divorce as been made and the legal process started, those same personal attacks can de-rail progress toward resolution. Legal process doesn't mitigate those attacks, generally the increased stress raises the frequency and intensity of those attacks.

4. Another anchor in the past which interferes with problem solving in the present and a plan for the future is un-forgiveness. No person gets to the decision that divorce is the best option without hurting their spouse in some way, and no spouse can reasonably claim that they have no responsibility for the relationship failing. Multitudes of sages have written that holding a grudge poisons the person who hangs on to the offense, and it frequently interferes with logical decision making in divorce negotiations.

5. Fear and anxiety can seriously impair logical thinking and rational planning. Some people who are mildly anxious before divorce begins become panic stricken during the process. Fearful spouses develop new fears during this period. The catastrophic thinking that may accompany these fears and anxieties can so restrict the perceptions of people that they literally see the world through a straw, as their brain literally narrows its focus to try to protect them against information overload. When you can only see one option, and it looks like doomsday, compromise is impossible.

6. Empathy failures and contempt. Contempt is another one of Gottman's factors that predict divorce. The inability to put oneself in the other person's shoes, difficult for many in the best of times, frequently disappears during the pain of divorce. If contempt (the opposite of empathy) was present before and contributed to the breakup, the eye rolling and mocking is only exaggerated during divorce. It's hard to give in and work with someone whom you don't respect and don't value at all. New research suggest that narcissists, who are prone to contempt of their partners during divorce, have the ability to turn empathy off and on; just reminding them to turn it on is sometimes enough too get a change of attitude and behavior that can lead to resolution.

7. Lack of expressed gratitude for the other spouse's contributions to the marriage relationship. 70-80 per cent of divorces occur in low conflict couples, and the spouse report that they just "drifted apart" and the marriage "died". This decreasing intimacy also reflects another of Gottman's findings; in failing marriages the ratio of positive to negative interactions falls to a ratio of 1 to 1. (In healthy relationships, the ratio is 20 to 1). In order to rebuild a "devitalized" relationship enough to work together to end it, both parties need to be able to express genuine appreciation for the real, positive contributions of their soon to be former spouse.

8. Failure to take any personal responsibility for the current difficulties that are interfering with reaching a resolution. Once again, since productive problem solving requires a focus on the present and the future, when any these emotional barriers to agreement that I have enumerated arise (and nearly all of them do at some point), further progress is stymied unless BOTH parties can acknowledge their own (not their partner's) challenges and struggles. 

9. Hopelessness and depression can make a good resolution appear to be impossible. Feelings of despair, sadness, and even symptoms of depression do occur with regularity during the process of divorcing. For most people, either because of effective treatment or just emotional resilience, these symptoms are not debilitating. However, for a significant minority of divorcing women AND men, depression and the hopeless outlook that goes with it, can interfere with rational thinking and problem solving. Fortunately, current treatments are more than 85% effective in alleviating depression.

10. Kevin Fuller helped me with this last category of barriers to successful agreement, and I have labeled it "cognitive impairments". This category of extremely challenging behaviors includes untreated substance abuse and it's accompanying cognitive disabilities, untreated serious and persistent mental illness (bipolar disorder, schizophrenia) and the thinking difficulties that are inherent to those illnesses, and untreated personality disorders like anti-social personality disorder (the "just plain mean and disagreeable" folks) and the borderline personality sufferers who are stuck in rigid "black and white" thinking patterns. 

The good news is that NONE of these barriers to successful resolution are insurmountable, and there are strategies and tools for removing them or working around them to reach a mutually satisfactory settlement agreement. The bad news is: it takes time, skills, and patience. More about that in the next post.

And no, Mr. Erhard, you don't have to manipulate people into believing that they "got the biggest piece of the cake". In fact, real agreements are the opposite of that cynical view of settlement--a fully informed, mutually agreed upon plan for the present and the future that both parties embrace, because they made it happen themselves. As my contracts prof used to say "a true meeting of the minds".