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".

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